Citation Nr: 18123980
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-38 069
DATE:	August 7, 2018
ORDER
New and material evidence having been received, the application to reopen entitlement to service connection for tinnitus is granted.
Service connection for tinnitus is granted.
FINDINGS OF FACT
1.  The Veteran had active duty service from August 1980 to May 1983, and from March 1984 to March 1987.
2.  Service connection was originally denied for tinnitus in August 2005.  Evidence submitted following the prior final decision is new and material.
3. Tinnitus is etiologically related to a service-connected disability.
CONCLUSIONS OF LAW
1.  The August 2005 rating decision denying service connection for tinnitus is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 
2.  New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for tinnitus.  38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.309, 3.311, 20.302, 20.110 (2017).
3.  Tinnitus is proximately due to a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
New and Material Evidence to Reopen Claims
Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a).
The Veteran’s claim for service connection for tinnitus was originally denied in an August 2005 rating decision for lack of an in-service incurrence or medical nexus.  His application to reopen was denied in January 2008 and September 2013 rating decisions for failure to submit evidence that related to an unestablished fact necessary to substantiate the claim. 
Since the prior final denial, a January 2012 VA examiner linked tinnitus to service-connected bilateral hearing loss.  A private physician, upon reviewing the VA examination report and other relevant evidence, found that the Veteran’s tinnitus was at least as likely as not incurred in or caused by the claimed in-service noise exposure.  
As this evidence relates to the medical nexus element of service connection, and medical nexus was an unestablished fact necessary to substantiate the claim, the new evidence is material.  As such, his application to reopen the claim for service connection for tinnitus is granted.
Service Connection
Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service.  See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 
Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  See 38 C.F.R. § 3.307.
Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310.  Allen v. Brown, 7 Vet. App. 439 (1995).  In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The Veteran claims his tinnitus was caused by active duty service.  New and material evidence, referenced above, relates his tinnitus to his service-connected bilateral hearing loss.  As such, his claim will be considered under the theory of secondary service connection.
First, the medical evidence has shown treatment for tinnitus throughout the appeal period.  He was diagnosed during a July 2005 VA examination in which he claimed the ringing in his ears started five years prior.  As such, the first element of service connection is met.
Next, the Veteran is currently service connected for multiple disabilities, including bilateral hearing loss.  As such, the second element of secondary service connection is met.
Finally, the medical evidence establishes a link between his service-connected bilateral hearing loss and his current tinnitus.  Specifically, a January 2012 VA examiner found that his tinnitus was as likely as not a symptom associated with hearing loss. 
The examiner did not provide an in-depth rationale on how the Veteran’s tinnitus was associated with his hearing loss.  However, it is highly probative given that no other VA examination report, VA medical records, or private medical opinions contain evidence that directly rebut the examiner’s opinion.  
A private physician submitted a June 2012 medical opinion linking the Veteran’s tinnitus to service, albeit on a direct basis.  Given the opinion finds a causal relationship between service and his current disability, it bolsters rather than contradicts the VA examiner’s findings, even with its differing etiological conclusion.  As such, and with reasonable doubt resolved in the Veteran’s favor, the appeal is granted.   
Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not 
 
required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
 
L. HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Brendan A. Evans, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.