Citation Nr: 21031476 Decision Date: 05/22/21 Archive Date: 05/22/21 DOCKET NO. 16-46 258 DATE: May 22, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to an initial disability rating in excess of 80 percent for a seizure disorder is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's current tinnitus had its onset during active service. 2. The evidence does not reflect that the Veteran averages at least one major seizure per month over the last year, for any year during the period on appeal. 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 an initial disability rating in excess of 80 percent for a seizure disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code (DC) 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 1971 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) dated October 2013 and April 2017. In the October 2013 rating decision, the RO, in pertinent part, granted service connection for a seizure disorder and assigned an initial disability rating of 80 percent, effective February 10, 2012. In the April 2017 rating decision, the RO denied service connection for tinnitus. In its April 2020 decision, in pertinent part, the Board denied service connection for tinnitus and remanded the issue of entitlement to an initial disability rating in excess of 80 percent for a seizure disorder. The Veteran timely appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, by way of a January 2021 Order, granted the parties' December 2020 Joint Motion for Partial Remand (JMPR), vacated the Board's April 2020 decision, and remanded the issue of entitlement to service connection for tinnitus for further adjudication consistent with the JMPR. The Board notes that while the Veteran originally requested videoconference hearings in his November 2016 and July 2018 substantive appeals, he subsequently withdrew his hearing requests in correspondence dated July 2019. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Tinnitus is considered by VA to be an organic disease of the nervous system, which is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A lay person is competent to report on the onset and reoccurrence of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. Here, the Veteran asserts that his current tinnitus had its onset during active service, to include as due to a head injury and/or military noise exposure. As an initial matter, the Board finds that the Veteran has a current disability of tinnitus, which is capable of lay observation and diagnosis. See VA treatment records dated February 2014 to December 2018; March 2017 VA audiology examination report; August 2017 Notice of Disagreement (NOD); January 2021 Statement in Support of Claim; see also Charles v. Principi, 16 Vet. App. 370 (2002). Next, the Board concedes exposure to loud military noise due to the Veteran's military occupational specialty (MOS) of aircraft armament systems technician, which has a "high" probability of noise exposure according to the Department of Defense's Duty MOS Noise Exposure Listing. Additionally, the Veteran is already service connected for a closed head injury with cerebral contusion that occurred during service. Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran's current tinnitus and his in-service noise exposure and/or head injury. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current tinnitus had its onset during active service. In his August 2017 NOD, the Veteran reported that after an in-service head injury, he started having ringing in his ears, and that the ringing continued once he started working on the flight line. In a January 2021 Statement in Support of Claim, the Veteran wrote, "I first started experiencing what I now know to be tinnitus shortly after my service-connected head injury in 1973. I started having recurrent and prolonged buzzing in both of my ears every few days or so. Before the head injury I never had this buzzing in my ears. The frequency of recurrence remained about the same to my recollection until sometime after I switched over to be an aircraft armament technician in the late 1980's. That job involved being around running jet engines on a daily basis. The jet engine noise seemed to trigger the buzzing/tinnitus in my ears and so it became much more frequent for the remainder of my service. By the time I was discharged in 1993 the buzzing was nearly continuous and always in the background. Since 1993, the tinnitus has gradually become louder and more intrusive...I am not sure of the exact cause of my tinnitus, but I believe it to be initially related to my head injury since it began right after the head injury. I believe it was worsened/aggravated when I transferred into the aircraft armament position since the frequency and intensity of the tinnitus increased after I started working around jet engines. Either way, the tinnitus began during and has persisted ever since my service in the Air Force. It is now constant." Given the observable nature of tinnitus, the Board finds that it can be linked to service by way of credible reports of experiencing symptoms since service. The Board has no reason to doubt the Veteran's credibility, and it affords great probative value to his lay reports of symptoms. The Board acknowledges that in a January 1993 Hearing Conservation Examination report rendered during the Veteran's service, he denied experiencing ringing in his ears. Nevertheless, the Board emphasizes that the evidence need only be in relative equipoise for the Veteran to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an aside, the Board notes that the March 2017 VA medical opinion was found inadequate in the December 2020 JMPR. Thus, the Board affords it no probative value. For these reasons, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. The appeal is therefore granted. 2. Entitlement to an initial disability rating in excess of 80 percent for a seizure disorder The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where a veteran is diagnosed with multiple disabilities of the same body part or system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. 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 her through her 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's seizure disorder is rated pursuant to the General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula) under 38 C.F.R. § 4.124a. The General Rating Formula provides that a confirmed diagnosis of epilepsy with a history of seizures is rated 10 percent disabling. Epilepsy with at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months, is rated 20 percent disabling. Epilepsy with at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly, is rated 40 percent disabling. Epilepsy averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week, is rated 60 percent disabling. Epilepsy averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly is rated 80 percent disabling. Epilepsy averaging at least 1 major seizure per month over the last year is rated 100 percent disabling. Note (1) to DC 8911 provides that a major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. Note (2) to DC 8911 provides that a minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). Note (1) to the General Rating Formula provides that, when continuous medication is shown necessary for the control of epilepsy, the minimum rating will be 10 percent, and this rating will not be combined with any other rating for epilepsy. Note (2) to the General Rating Formula provides that, in the presence of major and minor seizures, the predominating type of epilepsy is to be rated. Note (3) to the General Rating Formula provides that there will be no distinction between diurnal and nocturnal major seizures. Under DC 8914, psychomotor seizures will be rated as major seizures under the General Rating Formula when characterized by automatic states and/or generalized convulsions and unconsciousness. Psychomotor seizures will be rated as minor seizures under the General Rating Formula when characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood, or autonomic disturbances. In this matter, the Veteran asserts that an initial disability rating in excess of 80 percent for his seizure disorder is warranted. On review of the evidence, both lay and medical, the Board finds that the preponderance of the evidence is against the assignment of an initial disability rating of 100 percent for the Veteran's seizure disorder. Specifically, the evidence does not reflect that the Veteran averages at least one major seizure per month over the last year, for any year during the period on appeal. While the August 2013 VA examiner determined that the Veteran previously had major seizures, he noted that the Veteran had not had any major seizures in the past 2 years. The August 2013 VA examiner also found that the Veteran had never had any major psychomotor seizures. Additionally, the October 2016 VA examiner determined that the Veteran had never had any major seizures or major psychomotor seizures. In VA treatment records dated April 2014 to June 2020, the Veteran reported that he had not had any major seizures with loss of consciousness since 2011, which predates the period on appeal. The Board has considered the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). However, note (1) to the General Rating Formula indicates that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent, but cannot be combined with any other rating for epilepsy. As such, the holding in Jones is not applicable to this case, because the Veteran is already in receipt of 80 percent disability rating under the General Rating Formula. For these reasons, the Board finds that the preponderance of the evidence is against the assignment of an initial disability rating in excess of 80 percent for the Veteran's seizure disorder. The appeal is therefore denied. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.