Citation Nr: 20021084 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 16-20 788 DATE: March 24, 2020 ORDER Service connection for traumatic brain injury (TBI) is denied. REMANDED Whether new and material evidence has been received to reopen the claim for service connection for bilateral hearing loss is remanded. Whether new and material evidence has been received to reopen the claim for service connection for tinnitus is remanded. FINDINGS OF FACT 1. The Veteran’s service treatment records are void of any treatment for, or diagnosis of, traumatic brain injury or concussion. 2. The Veteran’s VA medical records do not show treatment for, diagnosis of, or residuals of, a traumatic brain injury during the claim or proximately to the filing of the current claim. 3. The preponderance of the credible and probative evidence is against a finding that the Veteran has a current diagnosis of, or residuals for, a traumatic brain injury (TBI). CONCLUSION OF LAW The criteria for service connection for traumatic brain injury (TBI) have not been met. U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. He received the Combat Infantryman Badge. These matters come before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision. That decision denied service connection for bilateral hearing loss and tinnitus on the basis of no new and material evidence being submitted; and also denied service connection for traumatic brain injury (TBI). The Board acknowledges that the Veteran has a current Notice of Disagreement with regard to his application of entitlement to total disability and individual unemployability (TDIU). However, since that appeal is currently before the AOJ and depending on rating issues not currently before the Board, the Board will not take jurisdiction of that matter. Service connection for traumatic brain injury (TBI) is denied. The Veteran contends that service connection is warranted for traumatic brain injury (TBI) because he was involved in explosions that gave him concussions while serving in Vietnam. See NOD received 11/25/2014 at page 2. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). For direct service connection to be awarded, there generally must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an 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 disease or injury. 38 U.S.C. § 1110. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The first element requires that the Veteran have a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Additionally, the Federal Circuit held that “disability” refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). A review of the Veteran’s current VA treatment records reveals no treatment for TBI or residuals. Further, the Board notes that it is not listed as an active problem on the Veteran’s medical problem list. See Capri received 1/11/2019 at page 8. Additionally, in the Veteran’s June 2016 C&P Examination for Mental Disorders, the examiner expressly checked that the Veteran does not have a diagnosed traumatic brain injury. See C&P exam received 6/21/2016 at page 2. Additionally, the Board finds that the Veteran’s service treatment records are absent of any complaints of, or treatments for, a concussion or traumatic brain injury. See STR-Medical received 3/13/2007. The Board further notes that the Veteran was found to be clinically normal at separation and affirmatively indicated that there was no change to his medical condition. Id. at pages 24 and 36. Although, the aforementioned would ordinarily not bar a finding that the claim triggers VA’s duty to assist; here, the Board finds that a remand for an examination is not warranted because the Veteran does not meet the elements of McLendon because he does not have a current disability nor persistent recurrent symptoms of a disability nor is there indication of functional impact. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (holding that the VA is obligated to provide an examination when the record contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; evidence establishing that the veteran suffered an event, injury or disease in-service; and an indication that the claimed disability or symptoms may be associated with the established event, injury, or disease in-service or with another service-connected disability; and insufficient competent medical evidence for VA to make a decision on the claim). As such, the Board finds VA’s duty to assist has not been triggered in this instance. As the preponderance of the competent and credible evidence weighs against the claim, there is no doubt to be resolved and the service connection for TBI is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral hearing loss 2. Whether new and material evidence has been received to reopen a claim for service connection for tinnitus The Board finds that VA’s duty to assist has been trigger in determining whether to reopen the above issue. See 38 C.F.R. § 3.159 (as in effect prior to Feb. 19, 2019) (stating that upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim and VA will give the assistance described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual attempting to reopen a finally decided claim). In this regard, during a C&P Examination for mental disorders, the Veteran stated that he tried to work at Ford Motor Company after Vietnam, but they did not hire him because of his hearing loss. See Capri received 8/24/2017 at page 99. The claims file does not reflect evidence from Ford and it also does not show that the Veteran has authorized VA to try to obtain such evidence. [There is a VA Form 21-4142 for a private doctor.] This evidence was not previously submitted prior to May 2007 and it may be material as it might tend to prove a basis of his previous denial, namely that the Veteran’s hearing was normal at discharge. As such, the Board finds that this evidence triggers the VA’s duty to assist. Relatedly, the Board finds that the Veteran’s claim for service connection for tinnitus is inextricably intertwined with his hearing loss claim because the two conditions are etiologically related. VA examination received 5/08/2007 at page 2.; See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that where a decision on one issue may have a "significant impact" upon another, the two claims are inextricably intertwined), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009). Therefore, the Veteran’s petition to reopen the claim for service connection for tinnitus is also remanded. These matters are REMANDED for the following actions: 1. Request that the Veteran authorize VA to obtain the relevant records from Ford Motor Company and take appropriate steps to obtain the records. Also, notify that the Veteran may submit them to VA if he has them in his possession. 2. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. (Continued on the next page)   3. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.