Citation Nr: 22012149 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 19-07 376 DATE: March 2, 2022 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus and the petition to reopen the claim is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. In December 1998 and November 2015 rating decisions, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for tinnitus; the Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the respective rating decisions. 2. Additional evidence received since the November 2015 rating decision is new and relates to unestablished facts necessary to substantiate the claim of service connection for tinnitus. 3. The evidence of record is at least in equipoise as to whether the Veteran's current tinnitus was manifested during his period of active service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the November 2015 rating decision and the claim of service connection for tinnitus is reopened. 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, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1967 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in November 2018, a statement of the case was issued in January 2019, and a substantive appeal was received in March 2019. The Veteran testified at a Board hearing in September 2021; the transcript is of record. New & Material Evidence Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and material evidence is existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In June 1998, the Veteran filed a claim of service connection for "ringing in the ears." In a December 1998 rating decision, service connection was denied for tinnitus. The Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). Thus, the December 1998 rating decision is final. In July 2015, the Veteran again filed a claim of service connection for tinnitus. In a November 2015 rating decision, the service connection claim was reopened and denied on the merits. In December 2015 and January 2016, the Veteran filed a supplemental claim of service connection for tinnitus. Correspondence was sent to the Veteran in December 2015 pertaining to his claim regarding evidence to support his claim. The Veteran did not submit any new evidence in support of his claim in the year following submission of his December 2015 claim, thus such claim is deemed abandoned. Generally, where evidence is requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement and is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Further, should the right to benefits be finally established, benefits based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158. The Veteran did not file a notice of disagreement with the November 2015 decision and no new evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). Thus, the November 2015 rating decision is final. In May 2018, the Veteran filed a claim of service connection for tinnitus. In a July 2018 rating decision, the claim was reopened and denied on the merits. In July 2018 and January 2019, the Veteran underwent audiological examinations. At the Board hearing the Veteran testified as to his noise exposure and ringing in the ears during service. As detailed above, there is a low threshold for finding new evidence that raises a reasonable possibility of substantiating the claim. Based on the above additional evidence that has been associated with the claims folder in support of the claim to reopen, the Board finds that such provides the basis for reopening the claim of service connection for tinnitus. For the above reasons, the claim of service connection for tinnitus is reopened. 38 U.S.C. § 5108. Service Connection The Veteran is claiming service connection for tinnitus due to in-service noise exposure. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. For veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is enumerated as a chronic disease. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In his June 1998 claim for compensation, the Veteran asserted that he had "ringing of the ears" which began in 1968. While a diagnosis of tinnitus was not officially made until he underwent a VA examination in September 2015, ringing of the ears is capable of lay observation which was asserted in the June 1998 claim. A diagnosis of tinnitus is established. The evidence of record supports a finding that the Veteran sustained an in-service injury in the form of acoustic trauma. This injury is consistent with the Veteran's military occupational specialty of heavy equipment operation in the United States Army. At the September 2021 Board hearing, he reported exposure to boat engines while serving aboard in-line six-cylinder boats and eight-cylinder diesel engine boats. 09/16/2021 Hearing Transcript at 3-4. The Veteran is competent to report exposure to loud noises. Additionally, the Board finds the Veteran's report of acoustic trauma as credible. As such, the evidence establishes the in-service injury element of exposure to hazardous noise levels. Thus, the first two elements of service connection are established. Turning to the third element, service treatment records do not reflect any complaints of or treatment for ringing of the ears or tinnitus. In June 1968, the Veteran sought treatment for an ear infection and pain, complaining that he could not hear. His left ear was irrigated, and he was prescribed medicine. Left external otitis was diagnosed. 08/05/2015 STR-Medical at 14-18. A May 1970 Report of Medical Examination conducted for separation purposes reflects that his 'ears-general' were clinically evaluated as normal. On a May 1970 Report of Medical History completed by the Veteran for separation purposes he checked the 'No' boxes for 'running ears' and 'ear, nose or throat trouble.' Id. at 4-6. In September 2015, the Veteran underwent an audiological examination. Sensorineural hearing loss was diagnosed. With regard to tinnitus, the Veteran reported buzzing sound in both ears, mostly in the right ear. He reported that the tinnitus started while in Vietnam. He states that he reported seeking VA treatment but did not pursue it. The examiner provided a negative etiological opinion. In July 2018, the Veteran underwent an audiological examination. The Veteran reported that when in Vietnam he had an ear infection that caused him to lose hearing for 2-3 days and was treated with Penicillin. The infection cleared and the hearing recovered but he was left with a hissing/buzzing tinnitus. Since that time the tinnitus has increased in frequency and intensity and tended to be worse in the right ear. The examiner provided a negative etiological opinion due to a lack of documented complaints in the service treatment records. In January 2019, the Veteran underwent an audiological examination. He reported constant bilateral rushing tinnitus that can sometimes sound like a buzz. Tinnitus is worse in the right ear. The Veteran reported that this began in Vietnam shortly after having a bilateral ear infection. Based on hearing within normal limits from entrance to separation and the Veteran's present hearing loss configuration there is no evidence of any auditory damage from ear infection. Also, based on review of service treatment records, there is no evidence of acoustic trauma. There is no complaint and/or treatment of tinnitus in service treatment records. The first documented complaint of tinnitus was not until September 2015 at a C&P evaluation. Therefore, it is not at least as likely as not that tinnitus is related to military service. In a February 2019 addendum opinion, it was noted that the Veteran presented with normal hearing at entrance and again at separation. In addition, there is no documented complaint of tinnitus and/or hearing loss present until September 2015. The Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss and/or tinnitus directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss and/or tinnitus was "unlikely." Therefore, regardless of the Veteran's military occupational specialty which concedes acoustic trauma, there is no objective evidence to confirm any auditory damage from ear infection or from service noise exposure. In addition, there is no evidence that disabling hearing loss and/or tinnitus manifested itself to a compensable degree during or within one year of discharge from service. Based on this evidence the examiner stood by the prior opinion that hearing loss and tinnitus are not at least as likely not due to auditory damage related to service noise exposure or ear infection. At the Board hearing, the Veteran testified that he began to experience ringing in his ears following his in-service ear infection. He noticed an "irritation" off and on during service. In the last 10-15 years it had gotten progressively worse. 09/16/2021 Hearing Transcript at 4-5. While acknowledging the negative service treatment records and negative etiological opinions of record, in light of the documented in-service ear infection, conceded noise exposure, and Veteran's subjective complaints in service and following service, the Board finds that service connection is warranted for tinnitus. As tinnitus, as organic disease of the nervous system, is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection is permissible based solely on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, Counsel 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.