Citation Nr: 21073110 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-07 920 DATE: December 7, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for headaches (claimed as migraines), to include as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. During his January 2021 "virtual" teleconference hearing before this Board, so prior to the promulgation of a decision in this appeal, the Veteran withdrew his claim for service connection for a TBI. 2. The Veteran has competently and credibly reported that his tinnitus began during his service and has been recurrent since; it is just as likely as not this is true. 3. The evidence of record also is in relative balance (equipoise), meaning as likely as not, concerning whether the Veteran's hypertension is caused or aggravated by his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeal of the claim for service connection for a TBI. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Resolving all reasonable doubt in the Veteran's favor, the criteria are met for his entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(d), 3.307, 3.309. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria also are met for his entitlement to service connection for hypertension secondary to his service-connected PTSD. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to June 2005. In January 2021, in support of these claims, the Veteran testified at a "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Withdrawn Claim 1. Entitlement to service connection for a TBI The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be by the appellant or authorized representative. 38 C.F.R. § 19.55; Anderson v. Brown, 9 Vet. App. 542 (1996). Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Hanson v. Brown, 9 Vet. App. 29 (1996). A withdrawal is effective upon receipt of the request. 38 C.F.R. § 19.55. Here, during the January 2021 virtual teleconference hearing before this Board, the Veteran and his representative indicated they are no longer appealing this claim for service connection for a TBI. Their statement of intention to withdraw the appeal of this claim satisfies the requirements for its withdrawal. Although the Court has distinguished written withdrawals from those, instead, done on the record orally during a hearing, here, the record shows the Veteran decided to withdraw the appeal of this claim after discussion with his representative, who is an attorney, and the request to withdraw the appeal of this claim is "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio, 25 Vet. App. at 57; see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, as the Veteran has withdrawn his appeal of the claim for service connection for a TBI, there remain no allegations of error of fact or law for appellate consideration concerning this claim. Accordingly, the Board does not have jurisdiction over this claim and, consequently, it is summarily dismissed. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in the denial of the claim for service connection. However, service connection may be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For qualifying service, certain "chronic" disabilities, including other organic diseases of the nervous system such as tinnitus, will presumed to have been incurred in service if they manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, or during a presumptive period, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, or legitimately questionable, then a showing of continuity of symptoms after discharge is required to support the claim but may, in this circumstance, establish the required correlation between the disability being claimed and the Veteran's service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) and (b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began after a rocket explosion while deployed to Iraq and that it has persisted ever since. See, e.g., January 2021 Board Virtual Hearing Transcript. When considering the pertinent evidence and the governing legal authority, and affording him the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. Even though a layman, the Veteran is competent to report experiencing tinnitus, both while in service and during the years since. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Given the inherent nature of this disease, the Veteran's lay statements are sufficient to establish tinnitus as a current disability. But even that notwithstanding, a diagnosis of tinnitus was confirmed during an April 2015 VA audiological examination. So there clearly is no disputing he has this disease. As for the additional question of whether there is a correlation ("nexus") between this disease and his service, the Veteran as mentioned reports first experiencing symptoms of tinnitus (ringing in his ears) following an explosion during his deployment in June 2004. See May 2015 Notice of Disagreement (NOD). The April 2015 VA examiner, however, concluded that it is less likely than not the Veteran's tinnitus is related to his service because service treatment records (STRs) do not mention any symptoms of his disease in service. In addition, there was no significant threshold shift in the Veteran's hearing acuity when measured during his examination for separation from service in turn, according to this VA examiner, indicating the Veteran did not experience a military-related noise injury. Nevertheless, on review of the entire evidentiary record, the Board finds no reason to question the veracity of the Veteran's assertions of in-service onset of his tinnitus. Regardless of the examiner's opinion, the record does not indicate that the Veteran's assertions regarding the inception of his tinnitus during his service (versus since) are not credible. He is competent to comment on when he started experiencing tinnitus since, as mentioned, it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). The credibility of lay statements may not be refuted or impeached solely by the absence of corroborating medical evidence, such as actual treatment records, although this is a consideration when determining whether the claimed disability is the result of the Veteran's service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). And, as already explained, tinnitus is a rare type of disability that may be established based on lay evidence, alone, when there is credible evidence of continuity of symptomatology since service. See Charles, 16 Vet. App. at 374; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (explaining that this showing of continuity of symptomatology since service under 38 C.F.R. § 3.303(b) as an alternative means of establishing the required link to service only applies to the conditions specifically noted as "chronic", per se, according to § 3.309(a)). Tinnitus is one such disease. Therefore, the Veteran is competent to state that his tinnitus began during his service and that he has continued to experience recurrent tinnitus since his service. Thus, resolving all reasonable doubt in the Veteran's favor, service connection is found to be warranted for his tinnitus. As such, this claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for hypertension, including as secondary to service-connected PTSD It is not in dispute that the Veteran has hypertension. What must be resolved is whether this disease is etiologically related to his military service including, as he is specifically alleging, secondary to his service-connected PTSD. On this determinative issue, there is probative (competent and credible) evidence both for and against the claim. Notably, in support of his claim, the Veteran submitted a private opinion from Dr. S.L.N. in February 2018. This commenting doctor opined that the Veteran's hypertension was caused by his service-connected PTSD. On the contrary, a February 2016 VA examiner concluded the Veteran's hypertension is less likely than not proximately due to or the result of his service-connected PTSD because there is no known correlation between the two conditions. However, this medical opinion has failings because the VA examiner did not address whether the Veteran's service-connected PTSD, even if not necessarily causing, alternatively is aggravating his hypertension. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Two opinions are required for secondary service connection claims: 1) is the claimed disorder "caused by" or "due to" the service-connected disability; and, 2) is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). Consequently, the Board finds the February 2016 examination report and opinion inadequate as it does not comport with the holdings in Allen and certainly is no more probative than Dr. S.L.N. February 2018 statement conversely supporting the claim. Normally, according to the holding in Barr v. Nicholson, 21 Vet. App. 303 (2007), the deficiencies in the February 2016 VA examination report would require remanding the claim to obtain clarification or all necessary additional information or comment. However, since the February 2018 opinion from Dr. S.L.N. is as probative (again, meaning as competent and credible), if not more so, than the VA opinion against the claim, the Board is going ahead and granting the claim for service connection for hypertension because the evidence, at the very least, is in relative equipoise as to whether the Veteran's hypertension is secondary to his service-connected PTSD again, meaning aggravated by his PTSD even if not caused by it. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this circumstance of relative balance of the evidence for versus against the claim, the claim must be granted rather than denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) ("a [V]eteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. As such, the claim for service connection for hypertension is granted in full. REASONS FOR REMAND 1. Entitlement to service connection for headaches (claimed as migraines) is remanded. The Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed headaches, which he alleges also are the result of his service-connected PTSD. See, e.g., January 2021 Board Virtual Hearing Transcript. In support of his contention, the Veteran cites to a single notation in his post-service treatment records diagnosing his condition as "posttraumatic headaches." Id. See also July 2013 VA Treatment Record. VA's duty to assist includes providing a medical examination for an opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Therefore, the Board finds it necessary to have the Veteran undergo a VA examination for an opinion concerning the etiology of his headaches especially in terms of whether related or attributable to his service or service-connected PTSD (i.e., caused or aggravated by the PTSD). McLendon, 20 Vet. App. at 79. Accordingly, this claim is REMANDED for the following action: 1. Contact the Veteran and inquire whether there are any additional records concerning his claim for headaches needing to be obtained. If there are, obtain these additional records following proper procedure and protocol (38 C.F.R. § 3.159(c)) and appropriately notify him and his representative if unable to obtain records that he identifies (38 C.F.R. § 3.159(e)). 2. After obtaining all additional treatment or other relevant records, provide the Veteran a VA examination with an appropriate VA clinician to determine the nature and etiology of his headaches, including in terms of whether secondary to his service-connected PTSD. The claims file, including a complete copy of this decision and remand, must be made available to the designated examiner, and the opinion should include discussion of the Veteran's documented medical history and assertions. Based on review of the Veteran's medical records, his lay statements regarding the development and treatment of his headaches, and a review of all other relevant evidence in the claims file including, again, a complete copy of this decision remand, the examiner should answer the following questions: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's headaches are caused OR are aggravated by his service-connected PTSD? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the headaches by the Veteran's service-connected PTSD. (b.) If not, is it at least as likely as not (a 50 percent or greater probability) the Veteran's headaches began during his service from April 2002 to June 2005, within a year of his discharge so by June 2006, or are otherwise related or attributable to his service? When responding, whether favorably or unfavorably, the examiner must discuss the rationale for all medical opinions provided or conclusions preferably citing to supporting evidence in the file and/or accepted medical authority. The mere absence of evidence of treatment for headaches in the Veteran's service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion, certainly not since this claim also is predicated on the alternative notion that service-connected disability (PTSD) is causing or aggravating the headaches, so not based exclusively on what occurred during service but also during the many years since service. The examiner is also advised that the Veteran is competent to report his symptoms and history, and his reports must be specifically considered in formulating all opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason or explanation for doing so. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.