Citation Nr: 18159105 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 13-04 749 DATE: December 18, 2018 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to an increased rating in excess of 20 percent for shell fragment wounds of the left shoulder and upper back, with retained foreign body, is remanded. Entitlement to an increased rating in excess of 0 percent for a left shoulder scar is remanded. Entitlement to an increased rating in excess of 0 percent for a mid-back inferior lateral scar is remanded. Entitlement to an increased rating in excess of 0 percent for posterior lateral left lower back scars is remanded. FINDING OF FACT The evidence both supporting and weighing against a finding that the Veteran's tinnitus is related to service is in relative equipoise. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran initially requested a Travel Board hearing before a Veterans Law Judge, but withdrew that request in writing in January 2018. Entitlement to service connection for tinnitus. To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). An alternative method of establishing in-service presence and causal relationship to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488 (1997); Clyburn v. West, 12 Vet. App. 296 (1999). 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. Savage v. Gober, 10 Vet. App. 488 (1997); Hickson v. West, 12 Vet. App. 247 (1999). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic, such as tinnitus. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. That presumption is rebuttable by probative evidence to the contrary. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. The Veteran's service personnel records indicate that the Veteran engaged in combat during service. VA has conceded that he experienced acoustic trauma during service. In a November 2009 VA audiology examination report, the Veteran reported experiencing the onset of tinnitus in 1968, during service in Vietnam. In reviewing the record, the examiner indicated that the Veteran did not mention experiencing tinnitus during in-service audiology examinations and subsequent examinations provided within four years of separation from service. The examiner diagnosed tinnitus, and opined that tinnitus was less likely than not related to service, because the service medical records did not contain any report of tinnitus or any notation indicating in-service incurrence of hearing loss. In several statements provided during the pendency of the appeal, the Veteran has reported experiencing ringing in the ears beginning during his service in Vietnam. The Veteran is competent to report the onset of tinnitus symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In the November 2009 VA audiology examination report, the VA examiner indicated that the Veteran's diagnosed tinnitus was not at least as likely as not related to service primarily, because the Veteran did not report experiencing symptoms during service or within four years of service separation. However, in several statements, the Veteran consistently has indicated that he began experiencing ringing in his ears during his service in Vietnam. The Veteran is competent to report the presence of ringing in his ears and when it began. Considering the acoustic trauma the Veteran experienced during service and his credible statements, indicating onset of symptoms during service, the Board finds that the evidence weighing for and against the claim is in relative equipoise. Resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus is related to service and service connection is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for TBI is remanded. The Board cannot make a fully-informed decision on the issue of service connection for TBI, because no VA examiner has examined the Veteran to determine the potential existence of TBI residuals or if those residuals are related to the Veteran's in-service combat experiences. 2. Entitlement to an increased rating in excess of 0 percent for a left shoulder scar is remanded. 3. Entitlement to an increased rating in excess of 0 percent for a mid-back inferior lateral scar is remanded. 4. Entitlement to an increased rating in excess of 0 percent for posterior lateral left lower back scars is remanded. 5. Entitlement to an increased rating in excess of 20 percent for shell fragment wounds of the left shoulder and upper back, with retained foreign body, is remanded. The Veteran has asserted that the service-connected disabilities on appeal have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records. 2. Schedule the Veteran for a VA TBI examination to be provided by a psychiatrist to ascertain whether he has any current residuals of an in-service head injury sustained during combat. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiners should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must consider the Veteran's lay statements regarding the incurrence of the disabilities and continuity of symptomatology since service. The examiner must clearly identify all residual symptoms (including all subjective complaints) that are determined to be related to any in-service head injury. The examiner must also specifically opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed or claimed impairment or residual is related to an in-service head injury. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected shell fragment wounds of the left shoulder and upper back, with retained foreign body. The examiner must review the claims file and should note that review in the report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the left shoulder and upper back disability alone, and discuss the effect of the Veteran’s left shoulder and upper back disability on any occupational functioning and activities of daily living. The examiner should identify each muscle group involved in the service-connected disability and should provide findings as to the level of disability in each involved muscle group. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of service-connected scars of the left shoulder, mid-back, and posterior lateral left lower back. The examiner must review the claims file and should note that review in the report. The examiner should provide a full description of the scars and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should identify any symptoms and functional impairments due to the scars alone and discuss the effect of the Veteran’s scars on any occupational functioning and activities of daily living. The examiner should provide measurements of the service-connected scars, and photographs. The examiner should state whether any scars are deep, unstable, or painful. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel