Citation Nr: 21030705 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-15 348 DATE: May 19, 2021 ORDER New and material evidence sufficient to reopen the claim of entitlement to service connection for tinnitus has been received, and the application to reopen is granted. The reopened claim for entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In a February 2008 rating decision, the RO denied service connection for tinnitus. The Veteran filed a notice of disagreement (NOD) in October 2008 and a statement of the case (SOC) was issued in April 2010. The Veteran did not file a timely VA Form 9 in response to the April 2010 SOC. 2. The evidence associated with the claims file subsequent to the April 2010 SOC includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for tinnitus, is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for tinnitus. 3. The Veteran's tinnitus onset during his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2000 to October 2003 with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On his March 2016 VA Form 9, the Veteran requested a Board hearing via live videoconference. In February 2019, VA sent to the Veteran a letter indicating that his hearing would take place on March 12, 2019. The Veteran's representative was copied on the notice. The Veteran failed to appear for his scheduled hearing and, to date, has not filed a motion for a new hearing laying out good cause why a new hearing should be permitted. Thus, the Veteran's hearing request is deemed withdrawn. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street); 38 C.F.R. S 20.603(d). In December 2019, the Board denied service connection for tinnitus. The Veteran appealed the Board's decision denying service connection for tinnitus to the United States Court of Appeals for Veterans Claims (Court), which, in January 2021, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's December 2019 decision and remanded the matter to the Board consistent with the terms of the joint motion. New and material evidence sufficient to reopen the claim of entitlement to service connection for tinnitus has been received, and the application to reopen is granted New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. The Veteran originally filed a claim for entitlement to service connection for tinnitus in August 2007 which was denied by a rating decision in February 2008 due to a lack of a nexus to the Veteran's service. The Veteran filed a NOD in October 2008 and an SOC was issued in April 2010. The Veteran never filed a substantive appeal (VA Form 9). Thus, February 2008 denial became final. See 38 C.F.R. § 19.32. 19.52(b)(1), 20.1103. The evidence of record at the time of the April 2010 SOC is considered in determining whether new and material evidence has been submitted. The Veteran's claim to reopen was received in May 2014. Since the April 2010 SOC, new evidence has been received to include additional VA treatment records and a March 2016 online article describing the deployment of the Veteran's regiment. Further, the credibility of such treatment records and article is to be presumed for purposes of new and material evidence. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because this information, in connection with evidence previously assembled, raises the possibility of substantiating the Veteran's claim, it constitutes new and material evidence sufficient to reopen the claim. Accordingly, the claim for service connection for tinnitus is reopened. Service Connection Tinnitus The Veteran asserts that he has tinnitus as a result of acoustic trauma sustained in active service. Specifically, the Veteran reported that during active service he was exposed to hazardous noise in the form of gun fire and artillery. The Board finds that the Veteran's reports of exposure to gunfire and artillery during service to be credible and consistent with his MOS as a field artillery mechanic. Therefore, the Board finds that the Veteran was exposed to loud noises during active service. Service treatment records do not show that the Veteran reported complaints of tinnitus. However, in a June 2003 post-deployment health assessment, the Veteran indicated that he began experiencing tinnitus while on active service. Moreover, the Veteran has indicated that he experienced ringing in his ears while he was in active service and that his symptoms have continued since that time. The Veteran is competent to report when he first had symptoms of tinnitus and that such symptoms have continued since that time. The Board finds the Veteran to be credible in that respect. As tinnitus, a chronic disease, was present during service and is present currently, and is not clearly attributable to an intercurrent cause, service connection is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board recognizes that in March 2010 a VA examiner opined that the Veteran's tinnitus was less likely than not due to in-service noise exposure as the examiner believed that the Veteran's tinnitus was related to a difference condition. The opinion does not negate the fact that a chronic disability actually onset during service as shown by the Veteran's competent and credible statements. For the above reasons, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). CHRISTOPHER J. O'DONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.