Citation Nr: 1334020 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-06 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from October 1957 to September 1959 and from August 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In connection with this appeal the Veteran testified at a hearing before a Decision Review Officer (DRO) in Wichita, Kansas in May 2011. A transcript of the hearing is associated with the claims file. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDINGS OF FACT 1. Residuals of a TBI are not etiologically related to the Veteran's active service. 2. Tinnitus is not etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. Residuals of a TBI were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA must notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA has to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), 38 C.F.R. § 3.159 (2013). The notice to a claimant must be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in September 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The September 2009 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service medical records and private treatment records are of record. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any outstanding evidence. The Board acknowledges that the Veteran has not been provided a VA examination in response to his claims of entitlement to service connection for TBI and tinnitus. Additionally, no VA medical opinion has been obtained in response to this claim. In claims for service connection, VA is obligated to provide a VA examination or obtain a medical opinion when: (1) there is competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability), (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a presumptive period, (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability, and (4) there is not sufficient medical evidence to make a decision. 38 C.F.R. § 3.159(c)(4) (2013); Charles v. Principi, 16 Vet. App. 370 (2002). As discussed below, the evidence shows that the Veteran has repeatedly reported that his symptoms started when he was into his 60s in 1999 or 2000, and that the symptoms did not start in service. The Veteran has not claimed that he had experienced his symptoms since service. In addition, the medical evidence of record does not attribute the Veteran's current symptoms to an in-service head injury - the Veteran's treating neurologist did not attribute the Veteran's symptoms to a head injury, stating instead that the Veteran most likely has frontotemporal dementia, and did not indicate that the Veteran's TBI and tinnitus are etiologically related to the Veteran's active service. Thus, there is no basis to believe that an additional examination and opinion would further substantiate the claims, and such examination/opinion is not warranted. Accordingly, the Board will address the merits of the claims. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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). An alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. 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. 38 C.F.R. § 3.303(b) (2013); Hickson v. West, 12 Vet. App. 247 (1999). However, the Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), such as organic diseases of the nervous system. Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). VA must give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 38 U.S.C. § 1154(a) (2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77. Continuity of symptoms, not continuity of treatment, is the essence of evidence supporting the continuity of symptomatology. Wilson v. Derwinski, 2 Vet.App 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency, "a legal concept determining whether testimony may be heard and considered", and credibility, "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran has asserted that he sustained a head injury in 1959 when he was in active service. He stated that he was a weather forecaster aboard the USS Estes. He reported that he fell and that his head hit the steel floor of the ship. The Veteran stated that he was knocked unconscious and was blacked out for three to four days. He reported that he was not taken to sick bay, but rather put into a bunk by his ship mates, where he slept the entire time he was unconscious. The Veteran stated that, to the best of his knowledge, he was not seen by a physician during that time. The Veteran stated that once he awakened, he arose, took a shower, changed his clothes, and went back to work. The Veteran reported that his condition at the time was good, he did not experience any major problems after the accident, and he did not report the injury to his superiors or seek medical treatment for it. The Veteran reported that the major problems only appeared later in his life, in his 60s in 1999 or 2000, when his head started hurting in the same spot that he had injured during the fall (above his eyebrows) and he started having problems with memory and black-outs. The Veteran's September 1959 discharge examination showed nothing out of the ordinary. The Veteran's head, face, neck, and throat were all found to be clinically normal upon examination, and he was deemed physically fit to perform active duty service at sea and foreign service. Additionally, the Veteran did not report any sort of head injury or TBI residuals, to include tinnitus, at the time of his discharge examination. In October 1959 the Veteran was afforded another discharge examination. At that time, the Veteran checked "yes" when asked if he experienced "frequent or severe headaches." In the physician's summary section, the doctor put "headache" next to "eye trouble, eye strain," not noting anything else about it. The Veteran also checked "yes" on question 34, "[h]ave you ever had any illness or injury other than those already noted." Next to the question, the Veteran put "NSU April 1959 Wespac," without any explanation as to what the note meant. This notation was not elaborated upon by the VA examiner. The Veteran's head, face, neck, and throat were all found to be clinically normal upon examination and he was deemed physically fit to transfer and to perform active duty service at sea and on foreign service. Additionally, the Veteran did not report any sort of head injury, or residuals of a head injury, to include tinnitus, at the time of that examination. In November 1960 the Veteran was afforded a Reserve periodic examination. The Veteran checked "yes" when asked if he experienced "frequent or severe headaches." The examiner added a note in the physician's summary which stated that the Veteran has had headaches and sinusitis since high school. At this time, the Veteran described his health as "good," and he was deemed fit for service. There is no indication from the examination report that the Veteran reported a history of head injury or tinnitus. On his May 1966 entrance examination, the Veteran was described as fit for enlistment and Active Duty Training (ACDUTRA). He checked "no" when asked if he had experienced headaches, and there is no indication from the examination report that he reported a history of head injury, TBI residuals, or tinnitus at that time. The same resulted from the Veteran's June 1970 examination - he checked "no" for headaches and was deemed fit for an extension of enlistment. The Veteran's head, face, neck, and throat were all found to be clinically normal upon physical examination, as was his neurologic system. There was no notation on the examination report indicating that the Veteran had a history of any head injury, residuals of TBI, or tinnitus at any point during his periods of active service. A review of the Veteran's post-service medical records shows that the Veteran did not complain of any residuals of a head injury until January 2009 and did not seek treatment for any residuals of a head injury until that time. Since January 2009, the Veteran has been treated at a private facility for memory loss, dementia, altered awareness, auditory and visual hallucinations, and black-outs. Doctor J.C., a neurologist, noted that, according to the Veteran and his daughter, the Veteran has experienced slow, progressive short-term memory loss for the 5-10 years prior to 2009. The memory loss apparently became significant about six months prior to the doctor's visit, as the Veteran began forgetting people and objects. The Veteran also spent a significant amount of money during that period of time and did not remember doing it. The doctor noted that the Veteran had been depressed since the death of his spouse, and taking Lexapro, an anti-depressant. He had also developed some obsessive-compulsive tendencies, on which the doctor did not elaborate. Dr. J.C. treated the Veteran from then on, and the Veteran also apparently saw a psychiatrist for his depression. Dr. J.C. diagnosed the Veteran with psychosis (with mild depression possibly contributing to the psychosis) and mild dementia, with possible frontotemporal dementia. The doctor prescribed Seroquel, which seemed to resolve the Veteran's hallucinations, and Aricept, which improved the Veteran's cognition, memory, and alertness. The doctor stated that the Veteran's MRI showed some localized left temporal atrophy, which could be the result of remote trauma or infarct. The neurologist considered a diagnosis of the beginning stages of Alzheimer's, but opined that the Veteran's symptoms were more indicative of frontotemporal dementia. Dr. J.C. reported that the Veteran had stated that he did have a severe head injury as a young man, but that the Veteran denied any cognitive complaints until more recently. The neurologist noted that the Veteran's cognitive deficits were relatively subtle, and were out of proportion with the amount of hallucinations the Veteran reported. This led the doctor to opine that the Veteran might have primary depression with associated psychosis, or frontotemporal dementia. In July 2009, the doctor noted that the Veteran had discontinued taking Seroquel at the advice of his psychiatrist, who was concerned about the Veteran taking this along with his anti-depressant (Citalopram at that point in time). The neurologist stated that the hallucinations may or may not return, depending on whether they were a symptom of the mood disturbance or of the frontotemporal dementia. The doctor stated that the Veteran should not drive or operate heavy machinery due to the dementia and impaired judgment stemming therefrom, and the black-outs. In addition, the Veteran has stated that the tinnitus he experienced was connected to the TBI. He described the tinnitus at the May 2011 DRO hearing as not being able to hear what people say to him, especially when they speak at normal volume. The Veteran expressly denied hearing what sounds like ringing, door bells, crickets, or high-pitch squeals in his ears. It appears that the Veteran was describing hearing loss, and not tinnitus. Regardless of the characterization, the Veteran reportedly did not have problems with tinnitus or other symptoms he associates with TBI until he reached his 60s in 1999 or 2000, and there is no mention of tinnitus in his private treatment records or service medical records. VA must give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 38 U.S.C. § 1154(a) (2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77. The Federal Circuit has explicitly reiterated that it rejected the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis." When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.2009). The Veteran is certainly competent to report that he sustained a head injury while in active service and can report that he has been experiencing symptoms such as headaches, memory loss, and tinnitus. However, the Veteran cannot diagnose a disability as complicated as TBI - such a diagnosis requires the expertise of a medical professional. The Veteran is also not competent to describe the injury as a TBI, or to assess his tinnitus or other symptoms as residuals of TBI. Nor can the Veteran draw a nexus between his current symptoms and a head injury which occurred over 40 years ago. No evidence of TBI or TBI residuals was found on the examination for discharge from service. The Veteran has not reported that his current symptoms have been chronic and continuous since service, and has not stated that his current symptoms started in-service or right after discharge from service. In fact, there is no documented complaint or treatment of any residuals of a head injury until January 2009, over 40 years following his separation from service, and by his own admission, he did not experience any complaints he feels are related to his head injury until he reached his 60s in 1999 or 2000. The Veteran, as a lay person, is not able to draw the nexus between his current symptoms and the head injury he states that he experienced in service. The neurologist who had examined and treated the Veteran regularly diagnosed the Veteran with psychosis and mild dementia. Moreover, he did not state that the psychosis and dementia were the result of a head injury, and instead concluded that these more likely represented frontotemporal dementia. The Veteran may have sustained a head injury in service. However, the more competent, probative, and persuasive evidence of record is against the proposition that there is any link between his current symptoms, including tinnitus, and a head injury sustained in service. Therefore, based on all of the foregoing, the Board must conclude that the preponderance of the evidence is against the claims and that entitlement to service connection for TBI and tinnitus is not warranted. ORDER Entitlement to service connection for TBI is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs