Citation Nr: 21008408 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-38 230 DATE: February 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for residuals of a rib fracture is granted. REMANDED Entitlement to service connection for a groin injury is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, he sustained a rib fracture during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for residuals of a rib fracture are 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 in the United States Marine Corps from June 1968 to December 1969, to include service in Vietnam. For the Veteran’s meritorious service, he was awarded the Combat Action Ribbon, among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in April 2015 and October 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the hearing is of record. Service connection Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus The Veteran asserts that he is entitled to service connection for tinnitus. The Veteran’s service treatment records do not document complaints, treatment, or a diagnosis of tinnitus. Additionally, the Veteran did not report tinnitus on his December 1969 separation examination. In October 2018, the Veteran appeared for a VA examination to determine the nature and etiology of his tinnitus. The Veteran reported hazardous noise exposure from guns and hand grenades; and stated that he experienced little occupational hazardous noise post-service, but that he did participate in recreational shooting with the use of hearing protection. The examiner determined that the Veteran’s tinnitus was less likely than not related to the Veteran’s military service. The examiner explained that the Veteran’s tinnitus is likely related to his hearing loss which had its onset 50 years after separation. The examiner also opined that the Veteran’s hearing loss was not a result of his military service because medical literature did not support a delayed onset of noise induced hearing loss. The Veteran appeared for another VA examination in September 2019. During the examination, the Veteran reported that he did not remember exactly when he first noticed his tinnitus, but he stated that he first became aware of it before he left the active service. The examiner, however, did not opined whether the Veteran’s current tinnitus was related to his military service. During the Veteran’s September 2020 hearing, the Veteran reported that he has ringing in his ears every day. The Veteran stated that he noticed his tinnitus began while in service due to hazardous noise exposure from guns, artillery, and rockets. The Board finds that the Veteran’s lay statements are competent and credible. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d 1372, 1377. Here, the Board finds that the Veteran is competent to report when his tinnitus symptoms first appeared because the symptoms are capable of lay observation. Additionally, the Veteran’s testimony has been consistent throughout the record. Further, as the Veteran was awarded the combat action ribbon, his statements about the in-service incurrence of his tinnitus are accepted, as they are consistent with the circumstances of his service. 38 U.S.C. § 1154(b). The final question, then, is whether the Veteran’s current tinnitus is related to his active service. Though there is a negative VA opinion on this issue, the Board finds that the Veteran’s statements regarding the onset of his tinnitus and its continuous nature place this question at least in equipoise. Accordingly, affording him the benefit of the doubt, the Board finds that the nexus element for service connection has been met. In summary, the Veteran has a current disability, had an in-service incurrence of that disability, and resolving all reasonable doubt in his favor, that disability is related to his active service. The criteria for service connection for tinnitus are met. 2. Entitlement to service connection for residuals of a rib fracture The Veteran also asserts that he is entitled to service connection for a rib fracture he sustained during his active duty service. In this regard, during the Veteran’s September 2020 Board hearing, the Veteran stated that he was in a truck accident in Vietnam during participation in combat action. According to the Veteran, this accident resulted in multiple injuries to include a fractured rib. He reported that he still feels pain in his chest from this injury. The Veteran’s truck accident has been verified by his military personnel record. Additionally, October 2018 VA treatment records confirm that the Veteran has a healed rib fracture. The Veteran's DD-214 shows that his military occupational specialty was a rifleman. He also participated in the Vietnam War and received a Combat Action Ribbon. The Board finds that the Veteran engaged in combat with the enemy and sustained a rib fracture during service. Due to the fact that the Veteran served as a rifleman, is in receipt of the Combat Action Ribbon, and sustaining a rib fracture is consistent with the circumstances, conditions or hardships of combat service, the lay account of a fractured rib while performing his duties as a rifleman is deemed credible and of significant probative value. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Additionally, the Veteran’s injury is consistent with a truck accident and he competently reported that he has not been in any other major accidents. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran sustained a rib fracture during his active duty service and currently feels chest pain as a result of the fracture. As such, entitlement to service connection for residuals of a rib fracture is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a groin injury is remanded. The Veteran is seeking service connection for residuals of a groin injury. The Veteran asserts that he sustained a groin injury when he was involved in an in-service truck accident. This accident has been verified by the Veteran’s military personnel records. However, the Board cannot make a fully informed decision on the issue of service connection for a groin injury because no VA examiner has opined whether the pain the Veteran experiences in his groin is at least as likely as not related to his in-service injury. Thus, a remand is warranted to obtain a VA examination. 2. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. The Veteran is seeking service connection for residuals of a TBI. The Veteran asserts that he sustained a TBI when he was involved in an in-service truck accident. This accident has been verified by the Veteran’s military personnel records. The Veteran appeared for a VA examination in April 2015. The examiner opined that the Veteran did not have a TBI. At most, the examiner stated that the Veteran sustained a concussion without residuals. The Board finds the April 2015 examiner’s opinion to be inadequate. In this regard, the Veteran reported during his September 2020 hearing that he has experience headaches since his in-service truck accident and also experiences memory loss. The April 2015 examiner did not address recurrent headaches or memory loss in rendering an opinion, thus, a new examination and opinion is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any facility where he is receiving private treatment for a groin injury or a TBI. Make two requests for the authorized records from his private treating physicians, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination to determine the nature and possible relationship to service of his claimed groin injury. After reviewing the Veteran’s claims file and performing all indicated tests, the examiner is to state whether the Veteran currently suffers from a groin disability and, if so, whether it is at least as likely as not that this disability is related to his active service. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for a VA examination to determine the nature and possible relationship to service of the Veteran’s claimed TBI. The Veteran’s claims file, to include this remand, must be reviewed prior to performing the examination. The examiner is to state whether the Veteran currently displays any symptoms of a TBI, to include his claimed headaches and memory loss. If the examiner determines that the Veteran shows any symptoms of a TBI, then the examiner is to state whether it is at least as likely as not that such identified symptoms are related to or had their onset during the Veteran’s active service, to include his in-service truck accident. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.