Citation Nr: 20021924 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-54 457 DATE: March 27, 2020 ORDER Entitlement to service connection for bilateral tinnitus is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. FINDING OF FACT The Veteran’s tinnitus is etiologically related to acoustic trauma experienced during active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307. 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1993 to December 2000, September 2001 to September 2003, and April 2005 to May 2007. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran requested a hearing before a Veterans’ Law Judge in an October 2016 Form 9, however that request was withdrawn by the Veteran through his representative in a December 2019 correspondence. Service Connection Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1132. Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss and tinnitus. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that 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 causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case, as sensorineural hearing loss and tinnitus are chronic diseases, and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. Entitlement to service connection for bilateral tinnitus As an initial matter, the Board notes that tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). In a November 2013 VA examination, the VA examiner diagnosed the Veteran with tinnitus and noted that the Veteran reported experiencing a “constant buzzing” bilaterally which began in 2006 after being exposed to an IED explosion and had continued since that time. The Veteran is competent to report the onset of his tinnitus. Furthermore, the Board finds that the Veteran’s reports of tinnitus from his time spent on active duty is credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran’s tinnitus began in service and that it has continued since that time. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Service treatment records reveal that the Veteran was involved in an IED blast in 2006. As such, the Board finds that the Veteran was exposed to acoustic trauma while in service. Based on the foregoing, the Board finds that the elements for service connection for tinnitus have been met. Accordingly, service connection for tinnitus is warranted. REASONS FOR REMAND Entitlement to service connection for a traumatic brain injury (TBI) is remanded. The Veteran is seeking service connection for a traumatic brain injury. Service treatment records reveal that the Veteran received treatment for post-concussion syndrome, seizures, and memory loss while on active duty following exposure to an IED explosion. In connection with the Veteran’s claim, the Veteran received VA examinations in November 2013 and September 2016. In the November 2013 VA examination, the Veteran was noted to have a diagnosis of TBI. The examiner noted that the Veteran had been involved in an IED explosion in 2006 while serving active duty. But opined that it is “less likely as not that the Veteran sustained a TBI during military service” noting that the Veteran was approximately 50 meters from the blast and did not strike his head. The examiner, however, failed to discuss the Veteran’s in-service treatment for post-concussion syndrome and memory loss. Accordingly, the Board finds this examination to be inadequate for determining entitlement to service connection for TBI. In the September 2016 VA examination, the examiner opined that the Veteran had no diagnosis of TBI. While the examiner did note that the Veteran was within 50 to 70 feet of an IED explosion, the examiner failed to discuss the Veteran’s in-service treatment for post-concussion syndrome and memory loss. Additionally, in reviewing the Veteran’s reported symptoms, the examiner failed to acknowledge the Veteran’s instances of memory loss stating instead that the Veteran had “no complaints of impairment of memory, attention, concentration, or executive function.” Accordingly, the Board finds this examination to also be inadequate for determining entitlement to service connection for TBI. In support of his claim, the Veteran submitted private treatment records. In a September 2017 clinical note, the Veteran’s private neurologist stated that the Veteran’s left temporal lobe shows signs of atrophy that is more than would be considered normal at his age. The neurologist further stated that TBI can cause atrophy in the area and can lead to seizures and cognitive difficulties. As there is conflicting medical evidence contained in the record, the Board finds that remand is warranted to obtain a new VA medical examination regarding the nature and etiology of the Veteran’s claimed TBI. The matter is REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to address the etiology of the Veteran’s claimed TBI. All pertinent evidence of record must be made available to and reviewed by the examiner. Specifically, the examiner must discuss and comment on the September 2017 statements by the Veteran’s private neurologist regarding atrophy of the left temporal lobe, as well as noted in-service treatment for post-concussion syndrome, seizures, and memory loss. Any indicated studies should be performed. Following a review of the relevant records (to include the above noted medical opinions, both private and VA) and lay statements, the examiner should state an opinion regarding the following: (a) Whether the Veteran has a current diagnosis of TBI; and (Continued on the next page)   (b) Whether the Veteran’s claimed TBI at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, 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.