Fountain v. McDonald

Robert Fountain (plaintiff) served in the US Army driving large-engine diesel trucks, exposing Fountain to a high level of noise. At one point, an explosion occurred near Fountain’s head. Afterward, Fountain was diagnosed with hearing loss. Foutain filed a claim for a service-connected disability and was granted entitlement for hearing loss at a noncompensable level. Later, Fountain filed a claim for disability for tinnitus and for an increase in hearing loss. A Department of Veterans Affairs (VA) (defendant) examiner found that the tinnitus was likely not caused by hearing trauma during active duty, because VA examinations shortly after Fountain’s separation from active duty did not show tinnitus and because Fountain had not complained of tinnitus during or shortly after service. The VA regional office (RO) denied Fountain’s claim, finding no service connection for the tinnitus. Fountain did not appeal the decision. However, Fountain later filed a claim to reopen the decision on the basis that he had experienced tinnitus during service but had not earlier reported it because the VA had not asked about it and because he had not been aware it was considered a type of disability. The RO denied the request to reopen the claim because there was no new material evidence. Fountain appealed to the Board of Veterans’ Appeals (the board). The board found that Fountain’s new statements explaining why Fountain had not mentioned tinnitus before were new and material evidence but denied the claim on the ground that the weight of the evidence still suggested no service connection. Specifically, the board found that Fountain’s lay evidence lacked credibility because Fountain had not reported the tinnitus during active service and because Fountain had waited several years to file a claim for tinnitus even though Fountain had filed another hearing-related claim. Fountain appealed.