Citation Nr: 18159922 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-44 264 DATE: December 21, 2018 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus did not manifest to a compensable degree in service or within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran did not sustain a traumatic brain injury in service; the preponderance of the evidence is against finding that the Veteran has residuals of TBI incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for residuals of TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2003 to November 2008 in the U.S. Navy, and from November 2008 to September 2012 in the U.S. Army. 1. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus related to noise exposure in service. The question for the Board is whether it is as likely as not that the Veteran’s tinnitus manifested to a compensable degree in service or within the applicable presumptive period, or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has tinnitus, the preponderance of the evidence weighs against finding that his disorder manifested to compensable degree in service or within the initial post separation year, or is at least as likely as not related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). STRs reflect no complaints or findings for tinnitus. Tinnitus is first documented in January 2017 on the Veteran’s claim for VA compensation roughly five years after service separation. The Board accepts that the Veteran is competent to report his symptoms of ringing ears. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, to the extent that he suggests that his symptoms started in service or within the one-year presumptive period after service, the Board finds that he is not credible for the following reasons: He did not report tinnitus in 2012 when he initially claimed entitlement to VA compensation for other disabilities; he denied hearing problems during medical treatment in service in August 2012 and VA treatment in December 2012 and April 2013; he reported during a VA audiological consult in January 2016 that he had a gradual decline in hearing with “occasional tinnitus” in the left ear “over the past two years” with a history of remote noise exposure in service; and he reported at the January 2017 VA audiological examination that he could not recall the date and circumstances of tinnitus. Essentially, the Veteran’s statements are incongruous with his having had onset of tinnitus in service or within the applicable presumptive period. Consequently, the Veteran’s statements have diminished probative value. Also, the Veteran does not specifically contend nor does the competent evidence show that delayed onset tinnitus is related to an in-service injury (acoustic trauma). The Veteran is not competent to opine that his delayed onset tinnitus is related to noise exposure in service as this requires medical training and understanding of the anatomy of the ear and its hearing mechanisms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not provided a favorable medical opinion to weigh in this matter. The Board assigns greater probative value to the STRs, coupled with the many years intervening service and the first documented complaints of tinnitus, and the Veteran’s denial of hearing problems in 2012. STRs are highly probative because they are contemporaneous with the time during which the Veteran suggests that his tinnitus started. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). On balance, the weight of the evidence is against the claim. Accordingly, the claim for service connection for tinnitus is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a TBI. The Veteran reports that, while deployed to Afghanistan in August 2011, he sustained TBI from his proximity to “a blast radius.” See Notice of Disagreement (June 2017). The Board concludes that the preponderance of the evidence weighs against finding that (1) he sustained a TBI during active service and (2) he has residuals of TBI related to an in-service injury or event. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). STRs reflect no complaints, findings, or treatment for injury related to a blast or explosion. An August 2010 treatment note shows normal neurologic findings and that Veteran denied any past history of neurological problems. Following the Veteran’s 2011 deployment to Afghanistan, treatment notes reflect he experienced combat stress, which he discussed with a practitioner. He did not report any experience with a blast or explosion, or any combat physical injury. Treatment record dated in November 2011 reflect that the Veteran hurt his shoulder doing push-ups. He provided a medical history that did not include head injury or exposure to blast/explosion during active service, including Afghanistan. A September 2012 VA treatment record reflects that the Veteran denied experiencing any TBI related events during deployment and the TBI screen was negative. An October 2012 Vet Center intake document reflects that the Veteran denied that he experienced in combat zone any incident involving an explosive device that was sufficient to knock him down or cover his with debris or to cause injury or to cause loss of consciousness. The Veteran further denied a history of “Other Blow or Injury to the Head.” VA received the Veteran’s original claim for VA compensation in December 2012, which did not mention any head injury in service, to include during his deployment to Afghanistan although he did report other injuries incurred during his Afghanistan deployment. See VA Form 21-526 (December 2012). February 2013 correspondence from the Veteran in connection with a post traumatic stress disorder claim reflects the first documented report that he had been in a convoy when an improvised explosive device exploded during active service in August 2011. He reported that the 3rd truck in the convoy was hit and in flames, and that he was situated in the 1st vehicle (not hit). VA received in September 2014 and August 2015 claims for VA benefits from the Veteran. Neither claim mentioned any head injury or residuals of TBI. The Veteran’s January 2017 claim for VA benefits reflects his first documented report of having sustained a TBI. To the extent that the Veteran reports head injury and TBI during active service, the Board finds that he is not credible in view of his denial of such on Vet Center Intake coupled with the absence of any report of head injury or TBI on many VA disability applications prior to receipt of his TBI claim. To the extent that VA treatment records show TBI, this is not predicated on an accurate medical history or supported by medical findings. Therefore, this evidence has no probative value. The more persuasive evidence of record, discussed above, tends to weigh against finding that the Veteran sustained a head injury or TBI during active service. The Board notes that the Veteran has not presented any corroborating evidence of his alleged TBI during active service, or medical evidence showing residuals of TBI. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based upon an inaccurate history is equally inaccurate). See also LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND 3. Entitlement to a TDIU is remanded. The Veteran contends that an award of TDIU is warranted because he has a history of unstable employment with an inability to retain gainful employment due to severe PTSD with “anxiety, panic attacks, and feelings of being confined.” He reports he is unable to be in “social settings without feeling a sense of dred and nervousness.” He reported that he takes several medications that make him sleepy and unable to focus. He reported that he is quick to anger at the slightest disagreement, noting that he was fired from a barbershop job due to this. He reported that his wife is his caregiver, assisting him during “the debilitating attacks.” See VA Form 9 (August 2017). Although a VA PTSD examination was conducted in March 2017, the Board finds that it is inadequate for TDIU purposes. The symptoms were reported as depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. However, the report does not reflect the severity, frequency, or duration of these symptoms; and does not address the effect of the Veteran’s medication on his ability to focus and/or concentrate. It is noted that the Veteran has specifically contended his medication cause impairment precluding his ability to perform the mental tasks required for gainful employment. Also, the Veteran’s August 2017 statement discussed above indicated panic attacks, which suggests that there has been a worsening of symptoms since the March 2017 VA examination, which did not indicate panic attacks. To ensure that VA has met its duty to assist, remand is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2017 to the present. 2. Obtain the Veteran’s vocational rehabilitation records and information related to school attendance from May 2018 to present. 3. Schedule the Veteran for an examination by an appropriate clinician as to the current severity of his PTSD disability, which he alleges causes his unemployability. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his PTSD disability on employment. The examiner should identify all limitations or functional impairment caused solely by his PTSD disability, to include the severity, frequency, and duration of his symptoms including panic attacks. (a) The examiner should ask the Veteran to describe in his own words the functional impact of his PTSD on his ability to engage in substantially gainful work. The Veteran’s response should be recorded in the report. (b) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, the examiner should indicate the objective functional effects of the Veteran’s PTSD on his ability to perform the physical and mental acts required for employment. For instance, with regard to mental acts, the examiner should address functions of the mind to include concentration, focus, attention, and memory. The examiner should indicate whether the Veteran displays objective signs of sleep impairment and, if so, whether this is due to PTSD and/or medications taken therefor; and, if so, the effect of sleep impairment on his ability to concentrate, focus, and maintain attention. The examiner should indicate whether the Veteran has had any medical restrictions imposed on his activities due to service-connected PTSD and/or medications taken therefor. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel