Citation Nr: 1141129 Decision Date: 11/04/11 Archive Date: 11/21/11 DOCKET NO. 10-18 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for residuals of a traumatic brain injury. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from February 1986 to September 1988 and from October 2004 to August 2005, as well as other periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). He received the combat action badge, among others, for his service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and May 2009 rating decisions of the RO in Portland, Oregon. In June 2011, the Veteran testified at a travel board hearing before the undersigned. A transcript of the hearing is of record. At the time of the hearing, the Veteran submitted additional evidence with a waiver of review by the Agency of Original Jurisdiction (AOJ). This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2011). FINDINGS OF FACT 1. The Veteran has experienced constant ringing in his ears since service in combat, in Iraq. 2. The Veteran has provided competent and credible testimony that he hit his head when he fell from a 20 foot guard tower, in service. A VA medical professional has diagnosed the Veteran with a traumatic brain injury due to the Veteran's fall and assessed his current symptoms as due to the fall. CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). 2. The criteria for entitlement to service connection for residuals of a traumatic brain injury have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Regarding the issues of service connection for tinnitus and residuals of a traumatic brain injury, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2011). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2011). Further, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2011). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to prevail on the issue of service connection on the merits, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). a. Tinnitus The Veteran has claimed service connection for tinnitus based on his exposure to noise in service, beginning right away upon his deployment to Iraq, in October 2004 (prior to the 20 foot fall discussed below). Service treatment records indicate that he was exposed to routine noise in service. Therefore, Shedden element (2) has been met. Regarding a current disability, a post-deployment private audiology examination report, dated in May 2005, diagnosed tinnitus that was constant and started in October 2004, during active combat in Iraq. Therefore, Shedden element (1) has been met. In written statements and sworn testimony, the Veteran has reported that he has experienced continuous ringing in his ears since he arrived in Iraq, prior to the January 2005 fall and head injury. See Transcript (T.) page 17. In other words, he claims his tinnitus is separate from the residuals of the traumatic brain injury discussed below. The Board finds that the Veteran is competent to report ringing in his ears as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Board finds his statements and sworn testimony to be credible. As finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider the internal consistency of the Veteran's statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). In this case, the Board finds it particularly significant that the Veteran's sworn testimony before the Board, in June 2011, was consistent with his report to the May 2005 private audiologist, regarding the onset of his tinnitus. T. page 17. Similarly, the May 2011 VA speech evaluation indicates that he reported that he did not have ringing in his ears until he began working with jets in the military. This is also consistent with his reports regarding the onset of his symptoms to the May 2005 audiologist. The Board also places a high probative value on the May 2005 private audiology report that indicated the Veteran's tinnitus was constant and had been present since he arrived in Iraq. The Board notes the October 2007 VA negative opinion. The examiner stated that since tinnitus was associated with nerve damage from hearing loss and the Veteran's service medical records showed he had hearing loss before serving in Iraq, that tinnitus was most likely related to the hearing loss he had prior to serving in Iraq. The Board finds this opinion lacks probative value as the opinion fails to discuss the Veteran's credible lay assertion regarding the onset of his tinnitus. Based on the foregoing, the Board finds that service connection for tinnitus should be granted. b. Traumatic Brain Injury Next, the Veteran claims that he is entitled to service connection for residuals of a traumatic brain injury (TBI) sustained during a fall in service. He was diagnosed with residuals of a TBI in April 2008, by a VA physician, Dr. B. Specifically, following a lengthy VA TBI evaluation, Dr. B. diagnosed a TBI productive of loss of consciousness, post-event amnesia, and the Veteran's current symptoms. The Shedden element (1), regarding a current diagnosis of residuals of a TBI, has been met based on the April 2008 diagnosis by Dr. B. Regarding the incurrence of an in-service injury, the Veteran reported to Dr. B. that in January 2005 while serving in a 20 foot guard tower, in Iraq, he was trying to grab a piece of equipment that had been knocked over by the wind when his foot caught on a sandbag. He lost his balance and fell out of a window and onto the ground. He reported that a witness from a passing vehicle later told him that he did a complete somersault in the air and landed directly onto his left foot, before then falling onto his back and head. He also reported that he was wearing a helmet and full gear at the time and that he lost consciousness for less than one minute. Service treatment records confirm that the fall occurred and that the Veteran fractured his left foot in the process. Service treatment records do not indicate that he was treated for a head injury following the fall. However, he submitted a corroborating statement from a fellow service member, T.S., who witnessed the event and called paramedics to assist the Veteran. T.S. indicated that the guard tower in question was adjacent to a fuel pump truck where he had been filling up his vehicle. T.S. reported that it looked as if the Veteran fell at least 15 feet, landed on his feet and then hit his head on the ground. He further observed that the Veteran did not move for at least 30 seconds and he assumed the Veteran was knocked out. T.S. and others with him called for help. He reported that when medical staff arrived, they indicated the Veteran had broken his foot and sustained a mild concussion. The Board finds the Veteran is competent to report his observation that he hit his head after falling 20 feet, as the observation came to him through his senses. Layno, 6 Vet. App. at 469. Likewise, the witness of the event is competent to report his observation of the fall and his impression of the event. Id. The Board also finds their statements credible. As finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider the internal consistency of the Veteran's statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). In this case, the Board finds it particularly significant that the Veteran's sworn testimony before the Board was consistent with his report to the April 2008 VA physician. T. pages 9-11. And, perhaps more significantly, he reported the fall, and that he hit his head, to the VA physician before he ever filed a claim for service connection for his residuals of a TBI. Further, the Board finds the Veteran's report regarding the facts of the in-service incident to be plausible despite the lack of treatment for a head injury following the event. Indeed, it is plausible that he would have continued to fall over and hit his head after falling to the ground from a height of 20 feet. Additionally, due to the severity of his foot injury, it is also plausible that his foot injury became the field medics' primary concern. The Board finds that his report is credible, particularly in light of the fact that he was evacuated and underwent surgery for his foot following the fall. Based on the foregoing, the Board finds that Shedden element (2) has been met. Next, regarding a relationship between the in-service fall and the current diagnosis of residuals of a TBI, the Board turns to the basis of the VA physician's diagnosis. In March 2008, Dr. B. conducted a thorough VA TBI evaluation following a referral by a December 2007 VA social worker. The Veteran initially screened positive for a TBI in December 2007. The VA social worker who conducted the December 2007 TBI screen noted that the Veteran had experienced a fall in service and had lost consciousness, been dazed, confused or felt like he was seeing stars and immediately after the event, did not remember what had happened. Further, he reported that he experienced new or increased problems after the fall, including sensitivity to bright light, irritability, and headaches. In addition to those symptoms, he also reported that he had sleep problems during the week preceding the TBI screen. During the March 2008 VA TBI evaluation, Dr. B. considered the following medical history regarding the TBI: that the Veteran lost consciousness for a duration of one minute to 30 minutes at the most; he had disorientation or confusion related to the fall for less than 30 minutes; he had post traumatic amnesia for less than 30 minutes; he was wearing a helmet and his skull was not penetrated; he was evacuated from the theatre for other medical reasons; he had never had prior treatment for a TBI; he had never had a prior brain injury or concussion even though he played football and was a wrestler in high school; and he has not experienced a TBI since the in-service occurrence. Further, Dr. B. considered his report that he has been told that he is acting differently. Further, at the March 2008 VA TBI evaluation, Dr. B. noted the following neurobehavioral symptoms: mild loss of balance; mild coordination problems; mild headaches; mild vision problems including blurring; mild hearing difficulty; and moderate sensitivity to noise; moderate numbness or tingling on parts of the body; mild concentration problems; mild forgetfulness; mild problems with slowed thinking, difficulty getting organized, and unable to finish things; moderate fatigue, loss of energy, and getting tired easily; mild difficulty falling asleep or staying asleep; mild feelings of being anxious or tense; moderate irritability and being easily annoyed; and mild problems with poor frustration tolerance and feeling overwhelmed by things. As part of the March 2008 VA TBI evaluation, Dr. B. also conducted a mental status examination. She noted that the Veteran was well-groomed, very jovial but appropriate with serious content of the interview. She also found him to be awake, alert and oriented. He did not show signs of frontal release. Glabellar release was negative. He was able to recall 2 out of 3 items at five minutes. His speech was fluent. Naming, comprehension and repetition were intact. His senses of smells were intact. There was no nystagmus. His facial sensory was intact but there was no facial symmetry. His tongue and uvula were midline. His gag reflex was intact. She also examined his motor skills and found no problems. Sensory testing was intact. His coordination was intact as to the finger to nose and rapid alternating movements of hand/palm heel to shin. There was no obvious dysmetria and Romberg test was negative. However, he was unable to keep his balance when shifting directions 180 degrees and when trying to stand on one leg (particularly the right leg). He had a tandem gait and with no ataxia. He was able to walk on his heels and toes. His mood was euthymic, thoughts were linear without obvious delusion or psychosis. Based on the outcome of the VA TBI evaluation noted above, Dr. B. assessed a TBI productive of brief, initial loss of consciousness and post-event amnesia as well as the Veteran's current symptoms. The Board acknowledges that Dr. B.'s assessment of a TBI was based in large part on the Veteran's reports of a head injury in service. However, as noted above, the Board has found the Veteran's reports of the event in service to be competent and credible. Significantly, Dr. B.'s report indicated that there had been no TBI prior to service, nor since the January 2005 incident. In light of Dr. B's report, the Board finds that the TBI is related to the fall in service and that Shedden element (3) has been met. Based on the foregoing, service connection for residuals of a TBI is granted. ORDER Service connection for tinnitus, is granted, subject to the laws and regulations governing monetary awards. Service connection for residuals of a traumatic brain injury, is granted, subject to the laws and regulations governing monetary awards. ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs