Citation Nr: 22010482 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 17-37 808 DATE: February 23, 2022 ORDER New and material evidence having been received, reopening of the previously denied claim for service connection for a traumatic brain injury (TBI) (previously characterized as a "head injury" or "residuals of a head injury") is granted. Service connection for residuals of a TBI, to include headaches, is granted. Service connection for tinnitus is granted. REMAND Entitlement to service connection for a right ear hearing loss disability is remanded. FINDINGS OF FACT 1. In a July 1977 rating decision, the RO denied service connection for residuals of a head injury. The Veteran did not file an appeal or submit new and material evidence within one year of notification of the decision. 2. In a July 1996 rating decision, the RO denied service connection for residuals of a head injury because the claim submitted was not well-grounded; the Veteran did not respond or submit additional evidence within one year of notification of the decision. 3. Evidence submitted since the July 1996 rating decision was not previously of record and relates to an unestablished fact necessary to substantiate the claim of service connection for a head injury. 4. The evidence is at least evenly balanced as to whether the Veteran's current residuals of a TBI, to include headaches, are due to injury in service. 5. The evidence is at least evenly balanced as to whether the Veteran's current tinnitus began during service. CONCLUSIONS OF LAW 1. The July 1977 rating decision that denied the claim of service connection for a head injury is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The July 1996 rating decision that denied the claim of service connection for residuals of a head injury is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. Evidence received since the July 1996 rating decision is new and material and sufficient to reopen the previously denied claim of service connection for head injury/head injury residuals (now characterized as "residuals of a TBI"). 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Resolving all doubt in favor of the Veteran, the criteria for service connection for residuals of a TBI, to include headaches, have been met. 38 C.F.R. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. Resolving all doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 C.F.R. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to July 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO reopened the previously denied claim of service connection for residuals of a head injury, but confirmed and continued the denial of the claim on the merits. The RO also denied claims of service connection for a bilateral hearing loss disability, and tinnitus. In October 2016, VA received the Veteran's Notice of Disagreement (NOD). In a June 2017 rating decision, the RO granted service connection for a left ear hearing loss disability and assigned an initial noncompensable rating, effective October 8, 2015. As this constitutes a full grant of benefits sought on appeal, the issue of service connection for a left ear hearing loss disability is no longer in appellate status. In June 2017, the RO issued a Statement of the Case (SOC). In July 2017, VA received the Veteran's VA Form 9 appeal to the Board. In October 2021, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. New and Material Evidence Whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a TBI. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of the substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). In July 1977, VA received the Veteran's initial claim for a "head injury." July 1977 VA Form 21-526e, Veteran's Application for Compensation or Pension at Separation from Service. In a July 1977 rating decision, the RO denied the claim for service connection for a head injury because the Veteran "did not show treatment for this injury while in the service and the available SMR's are entirely negative for this disability." The Veteran received notification of the decision in August 1977. However, he did not file an NOD or submit new and material evidence within one year of notification of the July 1977 rating decision. Therefore, the July 1977 rating decision became final. In October 1995, the Veteran filed a new claim for service connection for a head injury. However, in a July 1996 rating decision, the RO determined that the claim for service connection for a head injury was not well-grounded, in part, because there was "no record of treatment in service for residuals of a head injury." The RO informed the Veteran that no action could be taken on his claim without the receipt of new and material evidence, and that such disallowance did not mean that he could not submit the requested evidence, as long as the requested evidence is received within one year of the date of notification of the July 1996 rating decision. As no response or evidence was received within a year of the July 1996 rating decision, the claim is considered abandoned. 38 C.F.R. § 3.158. Furthermore, because the Veteran did not file a response or submit new and material evidence within one year of notification, the July 1996 rating decision became final. In November 2015, VA received a new claim for service connection for a head injury. In the February 2016 rating decision, the RO reopened the claim, but confirmed and continued the prior denial on the merits. In the legacy system, the Board is also required to address whether it is proper to reopen the claim, irrespective of the RO's actions in this regard. Barnett v. Brown, 83 F.3d 1380, 138384 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). The evidence of record at the time of the July 1996 rating decision included the Veteran's service treatment records, VA hospital reports and a report from a private provider. Evidence received since the July 1996 rating decision includes a January 2016 VA examination, VA treatment records, and the October 2021 Board hearing testimony. The evidence received after the July 1996 rating decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant. The evidence relates to whether there is in-service evidence of a head injury; as noted above, the prior denials were premised on lack of evidence of a head injury during service. Therefore, the evidence is new and material and reopening of the previously denied claim for service connection for a head injury is warranted Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 1. Entitlement to service connection for residuals of a TBI, to include headaches. The Veteran contends that he suffered a head injury during service and has experienced continuous residuals to the present. In this regard, he reports that, while stationed in Germany, he was hit in the head with a two-by-four board during an assault; he lost consciousness following the head injury. The Veteran asserts that he has experienced headaches and memory loss ever since the incident. He sought VA treatment at several VA medical centers for head injury residuals starting shortly after leaving the military, but eventually "just gave up and just started dealing with it myself." Furthermore, the Veteran has testified that his symptoms have worsened as he has gotten older. See October 2021 Board hearing transcript at 5-11. At the outset, the Veteran is competent to report observable symptomatology such as being hit in the head, having a laceration, headache pain, and memory loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007). STRs indicate that the Veteran suffered an in-service head injury consistent with the injury described during the October 2021 Board hearing. Specifically, the Veteran's separation examination indicates that the Veteran was "[h]it left side of head with [a] 2x4 board." The examination indicates that the Veteran lost consciousness for "100 seconds." The injury resulted in a head laceration that required suturing. Finally, the Veteran reported dizziness and headache "occasionally since" the head injury. See STRs dated July 13, 1977. In light of the above STR evidence, the Veteran's statements regarding the in-service head injury are credible because they are consistent with the STR evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995). Furthermore, although the claims file contains no VA treatment records dated prior to 1995, the medical evidence of record indicates that the Veteran has consistently reported experiencing residuals of head injury, including headaches and memory loss, to VA treatment providers from 1995 onwards. See, e.g., VA psychiatric evaluation dated July 24, 1995; VA medical record dated June 18, 1996; VA psychiatry consult dated October 27, 2005; VA psychiatry admission evaluation note dated August 16, 2012. Accordingly, the Veteran's reports of continuity of symptomatology from service are also credible. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran received an initial VA examination for his head injury residuals in January 2016. The examiner concluded that the Veteran experienced a TBI during service but opined that the Veteran's "current constant headache" is less likely than not related to the in-service TBI. Furthermore, the examiner concluded that it was less likely than not that the in-service TBI resulted in any long-term residuals. The examiner could not determine when during service the head injury had occurred. However, the examiner reasoned that "[a]ll available SMRs up to 7/06/1977 are silent for any long term residuals." Additionally, the examiner stated that "[m]edical literatures support that most headache caused by mTBI/head injury is transient and gradually taper off within the first three to six months." Turning to the probative value of the above medical opinion, the following factors are considered when evaluating the probative value of medical opinions: (1) whether the examiner is informed of the pertinent factual premises i.e. medical history of the case; (2) whether the examiner provides a fully articulable opinion, avoiding speculative language that does not provide the certainty needed for medical nexus evidence; and, (3) whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-4 (2008). Here, the examiner's rationale is inadequate. First, given the brevity of the Veteran's period of service and the examiner's inability to determine when the Veteran's in-service head injury had occurred, the conclusion that there were no long-term residuals of the head injury during service is unsupported, and additionally, contradicted by the Veteran's reports of headaches and dizziness at separation from service. Furthermore, the examiner failed to explain how the cited literature applied in the Veteran's case; in this regard, the literature merely showed that most headache symptoms caused by mild TBIs are not long-lasting. Given the above, the above opinion is based on an erroneous factual premise about the Veteran's medical history and, furthermore, is not supported by a reasoned analysis. Accordingly, the January 2016 opinion is afforded no probative value. See id. Nonetheless, the Veteran's report of a head injury, dizziness, and headaches at separation from service is particularly probative. Also probative are the Veteran's credible statements regarding continuity of symptomatology following service. Based on the foregoing, the evidence is at least evenly balanced as to whether the Veteran's residuals of a head injury had onset during service with continuing symptoms to the present. In other words, the evidence supporting the claim consists of the Veteran's competent and credible reports of observable symptoms since service, as well as his report of injury noted at the time of discharge. The probative evidence weighing against the claim is a lack of treatment for head injury during service and a lack of treatment following service. There is no reason to accord more weight to either the probative evidence for, or against, the claim. When the evidence is in equipoise, the Veteran prevails. Accordingly, service connection for residuals of a head injury is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to noise exposure during service. During the October 2021 Board hearing, the Veteran reported that he was exposed to hazardous noise due to his military occupational specialty (MOS) of Hawk fire control crewman. See October 2021 Board hearing transcript at 4. Furthermore, he testified to experiencing hazardous noise exposure near radar operating rooms, comparing the noise level to "an airplane taking off." Id. at 12. Finally, he has reported experiencing tinnitus since the in-service head injury discussed above. He also noticed ringing in his ears after exposure to loud noise during service. See id. at 15. Initially, the Veteran is competent to report observable symptomatology such as ringing in the ears. See Barr, 21 Vet. App. at 303. Given the Veteran's exposure to hazardous noise during service, there is no reason to doubt his credible testimony regarding onset of tinnitus following noise exposure. Finally, there is no reason to doubt his credible testimony regarding tinnitus symptoms following service. See Caluza, 7 Vet. App. at 498. During the period on appeal, the Veteran received an initial VA examination for hearing loss and tinnitus in June 2017. The examiner indicated that the Veteran denied tinnitus and therefore did not provide an etiology opinion for tinnitus. However, during the October 2021 Board hearing, the Veteran testified that he thought the examiner was "talking about tendonitis," rather than tinnitus, and therefore, denied tinnitus symptoms during the June 2017 examination. October 2021 Board hearing transcript at 15. The Veteran's explanation for his denial of tinnitus during the June 2017 is plausible and, therefore, credible in this regard. Accordingly, the examiner's finding that the Veteran did not report tinnitus is afforded no probative value. Based on the foregoing, the Veteran has credibly reported tinnitus symptoms with onset during service and continuing following service. Therefore, the most probative evidence of record supports that Veteran's tinnitus had onset during service with continuing symptomatology to the present. Accordingly, service connection for tinnitus is warranted. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 1. Entitlement to service connection for a right ear hearing loss disability. The Veteran contends that his right ear hearing loss disability is related to noise exposure during service. As noted above, hazardous noise exposure has been conceded due to the Veteran's MOS of Hawk fire control crewman. Nonetheless, the Veteran denied noticing any hearing loss during service. See October 2021 Board hearing transcript at 13. The June 2017 examiner provided a diagnosis of bilateral sensorineural hearing loss. In the examination report, the examiner acknowledged that the Veteran was exposed to noise from serving in an "artillary (sic) unit/advanced weapons fire control" with "no hearing protection." However, the examiner opined that the right ear hearing loss was less likely than not related to service. The examiner reasoned that "[c]omparisons of entry, inservice and separation exams show no change in hearing, no hearing loss of STS [standard threshold shift] in [the] Right ear." Notwithstanding, given that the current decision has granted service connection for tinnitus, remand is warranted for an addendum opinion regarding whether the right ear hearing loss disability may be proximately due to or aggravated beyond its natural progression by the service-connected tinnitus. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion regarding the etiology of the right ear hearing loss disability. The claims file, including a copy of this Remand, must be made available to the examiner, and the examiner should indicate that the claims file was reviewed in the examination report. A complete rationale for all opinions must be provided. The examiner should answer the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the right ear hearing loss disability is proximately due to the service-connected tinnitus? (b.) Is it at least as likely as not that the right ear hearing loss disability is aggravated (i.e. made worse) beyond its natural progression by the service-connected tinnitus? If the examiner finds that the right ear hearing loss disability is, as likely as not, made worse by the service-connected tinnitus, and that such increase in disability is not due to the natural progression of the disease itself, then, the examiner should attempt to determine a baseline level of severity for the right ear hearing loss disability prior to the aggravation progression by the service-connected tinnitus. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.