Citation Nr: 1600018 Decision Date: 01/04/16 Archive Date: 01/12/16 DOCKET NO. 12-24 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a traumatic brain injury (TBI). 2. Entitlement to service connection for tinnitus, to include as secondary to TBI. 3. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, major depression, and dementia pugilistica, and to also include as secondary to TBI. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to TBI. 5. Whether new and material evidence has been received to reopen the claim for service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984. He also has unverified service with the United States Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2009 and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in St. Louis, Missouri, and North Little Rock, Arkansas. During the course of the appeal, the claims file was permanently transferred to the RO in North Little Rock, Arkansas, which now has jurisdiction over the claim on appeal. In May 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing has been associated with the electronic file. In the October 2009 rating decision, the RO denied service connection for depression; however, in light of the evidence of record, including diagnoses of adjustment disorder and dementia pugilistica, the Board has characterized the issue on appeal as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS), so is paperless. The issues of entitlement to service connection for TBI; service connection for an acquired psychiatric disorder, to include as secondary to TBI; service connection for erectile dysfunction, to include as secondary to TBI; and whether new and material evidence has been received to reopen the claim for service connection for obstructive sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus is etiologically related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board applies statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The Board has considered this legislation, but finds that, given the favorable action taken below; no discussion of the VCAA at this point is required. The Merits of the Claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all 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), claims for certain chronic diseases--namely those listed in 38 C.F.R. § 3.309(a) --benefit from a somewhat more relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. at 1338-39. With evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Therefore, the continuity-of-symptomatology standard applies to the claim for service connection tinnitus. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has provided competent and credible lay statements of having tinnitus. Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation.") Moreover, the Veteran has been diagnosed with tinnitus, as reflected in the August 2011 VA examination report. The Veteran reported having ringing of the ears since 1980, while serving in the military. He admitted to having ongoing tinnitus since that time and attributed it to gunfire while serving in the military and in-service head injuries sustained while boxing. See the August 2011 VA examination report. The Veteran's service treatment records do not show any reference to, or complaint of tinnitus. Upon discharge from service, the Veteran reported having ear trouble on his June 1985 report of medical history, but there were no noted references to ringing in the ears or tinnitus. The Veteran's DD Form 214 confirms that he served as a canon crewman during his military service. The Veteran's MOS has been determined by the Department of Defense to involve a high probability of hazardous noise exposure. See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing). Thus, the Board finds it credible that the Veteran was exposed to hazardous noise in service based on his MOS and the circumstances of his service. See 38 U.S.C.A. § 1154(a). The question remains whether there is a nexus, or link between the current shown tinnitus and the Veteran's military service. As noted above, the Veteran was afforded a VA audiological examination in August 2011. The Veteran reported having constant, bilateral ringing tinnitus since 1980, while serving in the military. He attributed the tinnitus to in-service gunfire and head injuries sustained in service due to boxing. After review of the electronic file and physical examination testing, the VA examiner assessed the Veteran with tinnitus. The examiner noted no complaints of tinnitus in the Veteran's service treatment records. The examiner concluded that the Veteran's tinnitus is less likely as not caused by or a result of acoustic trauma or experiences in military service because there is no evidence or complaints of tinnitus in the Veteran's service treatment records. The August 2011 VA examiner did not address the Veteran's noise exposure resulting from his MOS in her rationale. The August 2011 VA examiner based her opinion on the absence of documentation of tinnitus in the service treatment records and audiometric data. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran's report of an in-service injury and relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The Board thus finds the opinion of the VA examiner to be of reduced probative value. The Veteran has credibly asserted that relevant symptoms have continued since service. On VA examination in August 2011, he indicated that tinnitus began around 1980 and has continued since that time. He has also denied post-military occupational and recreational noise exposure. See the August 2011 VA examination report. The Board is within its province to weigh the Veteran's statements regarding the symptomatology he has experienced and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that symptoms of tinnitus were continuous since service separation under 38 C.F.R. § 3.303(b). A discussion on the matter of secondary service connection is unnecessary given these findings. Therefore, resolving any doubt in the Veteran's favor, service connection for the Veteran's tinnitus is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. REMAND Remand is required to afford the Veteran VA examinations, which adequately address the relationship, if any, between the Veteran's claimed TBI and service; an acquired psychiatric disorder and service or secondary to TBI; and erectile dysfunction and service or secondary to TBI. Remand is also required for issuance of a statement of the case (SOC) on the issue of whether new and material evidence has been received to reopen the claim for service connection for sleep apnea. In September 2014, the Veteran expressed disagreement with a July 2014 rating decision that discussed the claim; however, no SOC has been issued addressing the claim. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his TBI, acquired psychiatric disorder, and erectile dysfunction. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the electronic file. A specific request should be made for any records of treatment from the Central Arkansas Veterans Healthcare System in Little Rock, Arkansas, since November 2012. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. After all available records have been associated with the electronic file, afford the Veteran a VA examination to determine the etiology of his claimed TBI, ALSO AS TO ANY ACQUIRED ORGANIC BRAIN SYNDROME; acquired psychiatric disorder, and erectile dysfunction. The electronic folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place must be included in the report of the examiner. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, the Board calls the examiner's attention to the following: * During the Veteran's military service, his military occupational specialty (MOS) was a canon crewman. * Service personnel records show that the Veteran was a member of the Fort Hood boxing team during his military service. * Service treatment records reflect several injuries as a result of the Veteran's participation on the boxing team. In November 1980, the Veteran visited sick call when he fractured his nose while boxing. This resulted in a frontal headache with no visual disturbances. In January 1981, the Veteran returned to sick call for right leg pain associated with the running required for boxing team members. He also reported complaints of headaches after being hit in the nose a month earlier. In February 1981, the Veteran sustained a distal fracture of the nasal bone due to a boxing injury, and in May 1981, he returned to sick call again for a possible nasal fracture. The Veteran experienced numbness and pain on the left side of his face after a boxing match in January 1982 and February 1982. February 1982 x-ray testing ruled out nerve damage. In February 1983, the Veteran visited sick call again for numbness and no feeling on the right side of his nose after boxing. After physical examination testing, he was diagnosed with possible nerve damage in the right nasal cavity. Upon discharge from service, the Veteran declined a separation examination; however, he admitted to having broken bones, and denied having frequent or severe headaches on his June 1984 report of medical history. * In July 2009, the Veteran was afforded a VA TBI examination. He reported boxing in service from 1980 to 1984. Upon review of the Veteran's service treatment records, the examiner noted the Veteran getting knocked out on several occasions while boxing and having a broken nose due to boxing on one occasion. After physical examination testing, the VA examiner found no evidence of a TBI. * Post service treatment records contain diagnoses of organic brain syndrome, adjustment disorder, major depression, dementia pugilistica, and erectile dysfunction. All indicated tests and studies must be performed. The examiner must provide a diagnosis for each identified disability. In regard to EACH identified disorder (TBI AND/OR ORGANIC BRAIN SYNDROME, acquired psychiatric disorder, and erectile dysfunction), the examiner must provide an opinion as to whether the disability began during active service or is related to any incident of service. The examiner must also provide an opinion as to whether the Veteran's acquired psychiatric disorder and erectile dysfunction were caused by or aggravated beyond the normal progression (chronically worsened) by his claimed TBI AND/OR ORGANIC BRAIN SYNDROME. The examiner must address the clinical significance, if any, of the diagnosis of organic brain syndrome found on the Veteran's problem list in VA outpatient treatment records. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 3. Issue a SOC to the Veteran and his representative, addressing the issue of whether new and material evidence has been received to reopen the claim for service connection for sleep apnea. The Veteran and his representative must be advised of the time limit in which he may file a Substantive Appeal. Then, only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. 4. After accomplishing any additional development deemed appropriate, readjudicate the claims remaining on appeal. If the benefits sought in connection with the claims remain denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs