Citation Nr: 21074308 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-03 155A DATE: December 14, 2021 ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI). 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. ORDER Entitlement to service connection for traumatic brain injury (TBI) is denied. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's traumatic brain injury (TBI) is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran's post-traumatic stress disorder (PTSD) is not shown to be causally or etiologically related to any disease, injury, or incident in service. 3. The Veteran is not shown to have had a bilateral hearing loss disability of such severity to constitute a disability for VA compensation purposes. 4. The Veteran's tinnitus was not etiologically related to an event, disease, or injury in service, nor was it shown in service or manifest to a compensable degree within a year of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for traumatic brain injury (TBI) have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for post-traumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 4.125(a). 3. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 4. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1966 to July 1969. The Veteran died in August 2016. The RO notified the Veteran's spouse in February 2019 that she had been recognized as the appropriate substitute for the deceased Veteran. As such, the Board finds that the appellant has been substituted as the claimant with respect to the issues on appeal. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. Following the rating decision, a timely Notice of Disagreement (NOD) was received in August 2016, and a statement of the case was issued in February 2019. A VA Form 9 was submitted in February 2019 by the Appellant's Attorney, and the Appellant's claims were certified to the Board in July 2019. The Appellant then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in May 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish an entitlement to service connection, the Appellant must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Appellant's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for traumatic brain injury (TBI). Prior to his passing, the Veteran filed a claim for entitlement to service connection for TBI. In a statement from July 2016, the Appellant submitted a statement that indicated her husband was injured in a jeep accident during his service and injured his head. She also wrote that he "chose no treatment on [his] head injury," until he started having "recurring headaches [and] stress related neurological tics." See July 2016 NOD. The Appellant was given a Board hearing in May 2021 before the undersigned Veterans Law Judge. During the hearing, the Appellant testified that the Veteran had been in a Jeep accident and "he had sustained a head injury that required nine stitches on the ... back of his skull [and] he was comatose for three days." She testified that the Veteran "would just have these random really bad headaches ... they just would randomly happen." She also testified that he was forgetful, in that "he had some problems with remembering why he was going into another room, which I think a lot of us do ... not chronically, but ... there was an issue." The Appellant is competent to report that which she observed, such as the Veteran's complaints and behavior. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the criteria for entitlement to service connection, the Board notes that the Veteran has not undergone a VA examination for this disability. The Veteran was scheduled for a VA examination, but he was unable to attend due to medical difficulties. Furthermore, a VAMC record from March 2012 indicates that the Veteran has headaches "off and on." That same record indicates that the Veteran reported that he "has had MRIs, CTs, and EEG and no abnormality [was] detected." The Veteran's service treatment records do indicate that the Veteran was involved in a motor vehicle accident in February 1968 while on active duty. The Veteran was treated for "concussive head injury," which included scalp lacerations. The Veteran's claims file contains a private treatment report from the Dr. J.E. at the Ellis Clinic, from June 2021. The report indicates that the Veteran was not seen in person, as he had passed away, but that his claims file was reviewed. The examination report noted that the Veteran had previously complained of headaches and noted the jeep accident while in service. Dr. J.E. then wrote that "it is more likely than not that he had a documented concussion and that the concussion caused residual traumatic brain injury." The Board notes that this opinion was also given in conjunction with three other positive nexus opinions, one for each of the Appellant's unrelated claims. As such, the private exam from June 2021 did indeed note that the Veteran had a current diagnosis of "residual traumatic brain injury." Therefore, the Veteran has a diagnosis pursuant to 38 C.F.R. § 3.303(a). While there is no reason to question the competency or credibility of Dr. J.E., the Board finds that the etiological opinion provided by the June 2021 private exam is not entitled to probative weight. To begin, the report provided was not conducted in person, as that was not possible. The examiner based their opinion on the Appellant's lay statements that the Veteran experienced headaches following his separation from service and following the jeep accident, only. The Board finds that this opinion therefore amounts to mere speculation. Furthermore, the Board finds that the opinion is brief and conclusory, and additionally notes that the report was provided alongside three other unrelated reports, each with similar conclusions and limited rationales. Importantly, while not strictly required in all circumstances, the practices of medicine have been founded upon examination of the subject, which was not possible in this case. Thus, the opinion amounts to nothing more than speculation, since it was largely based upon the recollections of the appellant and a review of the record, but no in-person examination. And the appellant herself, while credible, is not been shown to be competent to relate pertinent information that can only be garnered by a personal examination. As such, the Board attributes the nexus opinion by Dr. J.E. no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran has not met the criteria for entitlement to service connection. While the Veteran's diagnosis of "residuals of traumatic brain injury" has arguably been confirmed by the June 2021 private examiner, and while the Veteran does have an in-service injury of the jeep accident, it has not been shown that the diagnosis is etiologically related to that in-service injury. VAMC records do not include a nexus opinion, and while the Veteran was scheduled for a VA examination, he was unfortunately unable to attend. While the private report from June 2021 noted a diagnosis of TBI, that report was not based on an in-person clinical evaluation, and the Board has afforded that nexus opinion no probative weight. No further etiological opinions have been associated with the claims file. The Board also notes that the initial claim for entitlement to service connection of TBI was submitted in 2016, approximately forty-six years after the Veterans' separation from service. See further Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.) As such, the Board finds that the third criteria for entitlement to service connection has not been satisfied. 38 C.F.R. § § 3.303(a). For the foregoing reasons, the preponderance of the evidence is against the claim and entitlement to service connection for TBI is not warranted. As the preponderance of the evidence weighs against the claim, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3, Gilbert v. Derwinski, Vet. App. 49, 55-57. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). The Board incorporates its discussion from the sections above by reference. Prior to his passing, the Veteran filed a claim for entitlement to service connection for PTSD. In a statement from July 2016, the Appellant wrote that the Veteran had PTSD, and that "he's had some nervous shakes and bad dreams." The NOD from July 2016 also notes that the Veteran "did attempt suicide in [1984]." During the Appellant's hearing in May 2021, she testified that the Veteran had "problems in his sleep," and that "he kicked through the night." She testified that "according to his children, when he came back from [Vietnam] he was easily triggered." She further testified that he had symptoms of depression, and occasional anger. As noted above, the Appellant is competent to report that which she observed, such as the Veteran's behavior. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Entitlement to service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-V, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304 (f), 4.125(a). To begin, the Veteran was scheduled for a VA psychological examination, however he was unable to attend due to medical difficulties. As such, there is no VA examination of record to provide either a diagnosis, or an etiological opinion. Having said that, the Veteran was given a diagnosis of PTSD by the June 2021 examiner, Dr. J.E. While that diagnosis was not made with the requisite DSM, and the Veteran was not seen in person, the report clearly indicates that the Veteran had a diagnosis. See 38 C.F.R. § 4.125(a). The Veteran did not report any specific in-service injuries or events, but testimony from the Appellant in May 2021 indicates that the Veteran's PTSD may be a result of being stationed in Vietnam. The Veteran's DD-214 indicates that he was awarded the National Defense Service Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal, and that he spent approximately one year and seven months overseas in the Republic of Vietnam. As noted above, the Veteran's claims file includes a private treatment report from Dr. J.E., submitted in June 2021. Again, this report was not conducted in person, but Dr. J.E. indicated that he reviewed the Veteran's claims file. The report then notes that "it is more likely than not, that he was in active duty in hostile environments with many close calls in Vietnam and that this caused the release of stress hormones which sensitize the brain causing post-traumatic stress disorder." Again, there is no indication that any DSM was used for this diagnosis, much less the appropriate DSM-V. While the June 2021 private examiner's report did note a diagnosis of PTSD, the Board again finds that the nexus opinion provided was not based upon competent evidence that any current disability was related to the Veteran's service. The opinion itself was brief and conclusory, and it was largely basad upon recollections of the Appellant and a review of the record, yet no in-person examination took place. The Board therefore finds that this opinion essentially amounts to nothing more than mere speculation without the requisite examination of the Veteran. Importantly, the examination of the subject, while not strictly required in all circumstances, is a founding practice of medicine and psychology, and this practice cannot so easily be replaced even under the liberalized standards of VA law. As such, the Board finds that the nexus opinion provided in the June 2021 private exam is entitled to no probative weight. See Nieves-Rodriguez v. Peake, Id. Therefore, while the Veteran does arguably have a current diagnosis of PTSD, and while the Appellant has pointed to his service in Vietnam as being the cause of that diagnosis, there is no available nexus opinion that has been provided probative weight, demonstrating that those two factors are etiologically linked. See 38 C.F.R. § 3.304 (f), 4.125(a). Thus, the Board finds that the third and final criteria for entitlement to service connection has not been met. See 38 C.F.R. § 3.304 (f), 4.125(a). As such, the Board finds that entitlement to service connection for PTSD is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and service connection for PTSD is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. 3. Entitlement to service connection for a bilateral hearing loss disability. The Board incorporates its discussion from the sections above by reference. In the case of any Veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent of more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. 38 U.S.C. § 1112 (a)(1). The term chronic disease includes organic diseases of the nervous system, such as sensorineural hearing loss. 38 U.S.C. § 1101 (3); see also 38 C.F.R. § 3.309 (a). Prior to his passing, the Veteran filed a claim for entitlement to service connection for a bilateral hearing loss disability. During the Appellant's hearing in May 2021, she testified that the Veteran's "hearing loss was pretty profound." She testified that the Veteran had believed that it was due to the Veteran's military service, and that "he said he'd had several big explosions nearby that kind of concussed his hearing." She also stated that, while he used loud power tools later in life, "he'd also use ear protection," and that he was "being very protective of what [hearing] he had left." As noted above, the Appellant is competent to report that which she observed, such as the Veteran's complaints of hearing problems. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). To begin, the Veteran has not been given a VA audiological examination for his claimed bilateral hearing loss disability. The Veteran was scheduled for a VA examination, but due to medical difficulties, he was unable to attend that exam. The Veteran's VAMC records do not indicate that he was given a diagnosis of bilateral hearing loss. A VAMC record from February 2016 indicates that the Veteran "is hard of hearing," but subsequent records from that same date note that the Veteran's "hearing [was] intact." The Veteran's claims file contains no audiological records documenting hearing loss during the period on appeal. As indicated above, the Veteran's claims file contains a private report from June 2021 from Dr. J.W. The report indicates that the Veteran's claims file was reviewed, although the Veteran was not seen in person, and audiological testing had not taken place. The report notes the Veteran's audiogram from his service treatment records and indicated that this "showed severe hearing loss consistent with noise-induced hearing loss." The report continued that the Veteran "was around the noise of trucks and vehicles ... therefore, it is more likely than not that his noise exposure in basic training and in Vietnam and in Quartermaster Corp, contributed to and aggravated his noise-induced hearing loss and tinnitus." Again, as the Veteran was unable to be seen in person for this report, audiological testing could not be conducted, and the Veteran's claimed bilateral hearing loss disability could not be confirmed. The Board finds that the private report from June 2021 is afforded no probative weight as to both the presence of a bilateral hearing loss diagnosis and to the etiology of the claimed disability. As noted in prior sections, aside from the report being brief and conclusory, it is included with three other unrelated disability claims. More importantly, the Veteran was unable to be seen in person, and therefore, audiological testing could not take place to confirm the claimed diagnosis under 38 C.F.R. § 3.385. Therefore, while the June 2021 examiner did provide a diagnosis of bilateral hearing loss, the Board finds that without the associated in-person audiological testing, that the diagnosis was based on mere speculation. Thus, notwithstanding the Appellant's competent assertions that the Veteran had a bilateral hearing loss disability, there is no available audiometric evidence to indicate that the Veteran had a present diagnosis of a bilateral hearing loss disability for VA purposes and the claim must be denied on the basis that the Veteran does not have a current disability under 38 C.F.R. § 3.385. See Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). Furthermore, the Board notes that there is no indication that any such diagnosis had manifested within one year of the Veteran's discharge from service. 38 C.F.R. § § 3.303(a), 3.309 (a). Thus, entitlement to service connection for a bilateral hearing loss disability is not warranted. In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for tinnitus. The Board incorporates its discussion from the sections above by reference. Prior to his passing, the Veteran filed a claim for entitlement to service connection for tinnitus. During the Appellant's hearing in May 2021, she testified that the Veteran had complained about ringing and/or "buzzing" in his ears. The Appellant is competent to report that which she observed. See Jandreau, Id. The Board notes that service connection for tinnitus can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. To begin, during the Veteran's lifetime, he submitted no statements to indicate that he had a current disability of tinnitus. Neither the NOD from July 2016, nor the resubmitted NOD from August 2016, nor the supplemental statement from June 2016 indicate that the Veteran complained of tinnitus. VAMC records also do not indicate that the Veteran had a present diagnosis of tinnitus. In no available VAMC/CAPRI reports was it noted that the Veteran complained of buzzing or ringing in his ears, nor were any similar symptoms noted. The Veteran has also not been given a VA examination for this disability. While he was scheduled for a VA exam, unfortunately the Veteran was unable to attend due to medical difficulties. The Veteran's claims file does include a private treatment report from Dr. J.E., submitted in June 2021. While an in-person examination was not possible, the private examiner indicated that the claims file was reviewed. The report indicates that the Veteran had a current diagnosis of tinnitus. As such, the first criteria for entitlement to service connection has arguably been met. 38 C.F.R. §§ 3.303. Similar to the preceding section, the Appellant has argued that the Veteran was exposed to loud noises and "several big explosions" that occurred while the Veteran was in service. Considering the Veteran's foreign service in the Republic of Vietnam, the Board finds that the second criteria has also therefore been met. Regarding the third criteria however, the Board again notes that the Veteran was unable to attend the scheduled VA examination due to medical difficulties. The claims file does however include a nexus opinion from the June 2021 private examiner. In that report, Dr. J.E. wrote that the Veteran had a current diagnosis of tinnitus, which was due to his service "because of the prolonged exposure to loud noises when he was serving in the Quartermaster Corp." As discussed in previous sections, the Board finds that the June 2021 nexus opinion is not afforded any probative weight. Audiological testing did not take place, and while that is not strictly necessary for a diagnosis of tinnitus, the Veteran was not present during the exam to self-report tinnitus. The report was brief and conclusory and was submitted alongside similar paragraphs provided for unrelated disability claims of the Veteran. Importantly, the Board finds that the etiological opinion provided was based on only a review of the claims file and the statements from the Appellant. And the appellant herself, while credible, is not been shown to be competent to relate pertinent information that can only be garnered by a personal examination. As such, the nexus opinion provided is essentially based on mere speculation, and the Board affords that nexus opinion no probative weight. No further etiological opinions have been rendered regarding the Veteran's tinnitus disability. As such, the Board finds that the third criteria for entitlement to service connection for tinnitus has not been satisfied, as it has not been shown that the Veteran's tinnitus is at least as likely as not due to his active-duty service. 38 C.F.R. §§ 3.303. The Board also notes that, service connection for tinnitus is recognized as a chronic disease, which can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). As indicated above however, during his lifetime, the Veteran had provided no statements or information surrounding his claimed tinnitus, much less that it has continued since his separation from service. The Board also notes that the Veteran's original claim was submitted approximately forty-six years following his separation from service. See Maxon, Id. Thus, the Appellant's claim for entitlement to service connection for tinnitus can also not be established through continuity of symptomatology. 38 C.F.R. § 3.309. The Board truly sympathizes with the Appellant and has thoroughly contemplated each of the Veteran's claims of entitlement to service connection. Unfortunately, however, the Board must find that the preponderance of the evidence is against such a finding. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the doctrine is not applicable. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, although the Board could not render a favorable outcome in this decision, we would like to express our gratitude for the Veteran's honorable service to our country. The Board is also cognizant of the loss the Appellant has sustained and the sacrifices that she has made in support of her late husband; as such, we would also like to express our gratitude for her service in that regard. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.