Citation Nr: 22014233 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 20-00 264 DATE: March 11, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for residuals of a head injury, diagnosed as a traumatic brain injury (TBI), is granted. Entitlement to service connection for migraine headaches, secondary to residuals of a head injury, is granted. Entitlement to service connection for major depressive disorder, secondary to migraine headaches, is granted. FINDINGS OF FACT 1. Tinnitus had its onset in service. 2. The Veteran suffered a head injury in service, diagnosed as TBI, with residual symptomatology. 3. The Veteran's migraine headaches are proximately due to his service-connected residuals of a head injury. 4. The Veteran's major depressive disorder is proximately due to his service-connected migraine headaches. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for residuals of a head injury, diagnosed as TBI, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1973 to December 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a February 2022 virtual hearing. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in entrance examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. See 38 U.S.C. § 1111; 38C.F.R. §3.304(b); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). To rebut the presumption of sound condition under 38U.S.C. § 1111 for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citations omitted). 1. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus, contending such began during service and has been recurrent since his discharge from service as a result of acoustic trauma from jet engines, generators and gun fire. See, e.g., August 2017 audiological evaluation report; see also February 2022 Board hearing. The Veteran has a current diagnosis of tinnitus. See, e.g., March 2018 audiological Disability Benefits Questionnaire (DBQ). Thus, the first element of service connection is met. Regarding in-service incurrence, the Veteran has consistently and repeatedly stated that his duties involved being near aircraft, exposing him to jet engines and other acoustic trauma. The Board finds the Veteran's account of acoustic trauma and noise exposure during service to be credible and consistent with the circumstances of his service. Because in-service noise exposure is established, the second element of service connection has been met. The remaining question is whether there is a nexus between the Veteran's in-service noise exposure and his tinnitus. The Veteran has competently and credibly reported that he experienced tinnitus during and since service due to the in-service acoustic trauma. Based on the evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted because the disability had its onset in service. In reaching this determination, the Board acknowledges the negative nexus opinion in a March 2018 audiological DBQ. The Board finds the opinion provided to be of limited value as the examiner's negative nexus opinion was based, at least in part, on the finding that the Veteran's service treatment records were silent for complaints, treatment, or diagnosis of tinnitus. The Board also notes that the Veteran has submitted a March 2019 Dr. J.E. private medical evaluation in which it was opined that it was more likely than not that his exposures in the Air Force caused injury to the hearing cells. Based on the Veteran's credible lay statements as to the onset of his tinnitus, as well as the conceded acoustic trauma during service and the private medical evaluation report from Dr. J.E., finding the evidence is in an approximate balance of positive and negative evidence, the benefit of the doubt doctrine is applicable, and service connection for tinnitus is warranted. 38 C.F.R. § 3.303(d); see also Fountain v. McDonald, 27 Vet. App. 258 (2015). 2. Entitlement to service connection for residuals of a head injury, to include a TBI. 3. Entitlement to service connection for headaches, to include as secondary to head injury. 4. Entitlement to service connection for major depressive disorder, to include as secondary to head injury and/or headaches. The Veteran seeks service connection for residuals of a head injury, to include headaches and major depressive disorder (or, alternatively, secondary to headaches). Specifically, the Veteran states that during a mile run in February 1973 during basic training, a fellow service member tripped and fell in front of him, and he fell over the other service member and hit his head on the pavement, suffering a loss of consciousness. See November 2017 statement. Upon regaining consciousness, his symptoms included a bad headache which resolved after about one week, but he began experiencing recurrent migraine headaches with side effects like blurred vision, slurred speech, and numbness on parts of the right side of his body. Id. He has further reported that his symptoms have been recurrent since the injury in February 1973. Id. The Veteran's service treatment records do not specifically show treatment for or complaints of a head injury. However, on April 1974 report of medical history, the Veteran reported frequent problems sleeping; depression or excessive worry; head injury; and frequent or severe headaches. It was noted that he had a history of head injury from a car accident some time ago, and that his depression and insomnia were due to school and money problems. A June 1976 military hospital treatment record noted his complaint of severe recurrent frontal headaches, present since 14 years old. An August 1976 Dr. A.R. record noted the Veteran's report of headaches since age 12, and that he favored a diagnosis of vascular headaches and cerebral dysrhythmia. And a November 1976 Air Force hospital treatment record noted the Veteran's report of recurrent headaches all his life, which have become more frequent and severe over time, associated with right-side numbness. To the extent the evidence suggests that the Veteran had a pre-existing headache disorder, the Board notes that such was not found on December 1972 entrance examination, and the presumption of soundness applies in this case, and it is presumed the Veteran was in sound condition upon entry into service. The Veteran has current diagnoses of major depressive disorder, migraine headaches, and TBI. See October 2017 mental disorders DBQ; March 2018 headaches DBQ; March 2018 TBI DBQ. Thus, the Veteran has satisfied the first element of service connection. Regarding in-service incurrence, the Veteran has consistently and repeatedly stated that he suffered a fall in February 1973 during service, injuring his head, and that since he has had recurrent headaches and other symptomatology. The Board finds the Veteran's account of his head injury during service to be credible. Because in-service injury is established, the second element of service connection has been met. As to the Veteran's claim for service connection for residuals of a head injury, the evidence includes a March 2018 TBI DBQ. The examiner opined that it was at least as likely as not that the Veteran's TBI was incurred in and was caused by his fall in February 1973. The Veteran's current symptoms are short-term memory loss, headaches, fatigue (due to the headaches), difficulty concentrating, nausea (due to the headaches), blurred vision (due to the headaches), sensitivity to light and sound (due to the headaches), and dizziness (due to the headaches), due to the TBI. The Veteran has also submitted a March 2019 Dr. J.E. private medical evaluation report in which it was opined that the Veteran's TBI was more likely than not caused by the acute fall in February 1973. Inasmuch as there is no medical opinion against the Veteran's claim for service connection for residuals of a head injury, diagnosed as TBI, the Board finds that the evidence is persuasively in favor of the Veteran, and entitlement to service connection for residuals of a head injury, diagnosed as TBI, is warranted. The Veteran also seeks service connection for migraine headaches, to include as secondary to his now service-connected residuals of a head injury. The evidence of record includes a March 2018 headaches DBQ opining that the Veteran's diagnosed migraine headaches were at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. It was noted that there was no evidence or complaint of headaches or a head injury on December 1972 enlistment examination. In addition, it was noted that the currently diagnosed migraine headaches are at least as likely as not the same headaches for which he sought treatment in the above-noted November 1976 Air Force hospital treatment record. Hence, it was concluded that the Veteran's current migraine headaches were at least as likely as not incurred in and/or caused by the Veteran's fall in February 1973. The evidence also includes a March 2019 Dr. J.E. private medical evaluation report opining that it was more likely than not that the February 1973 fall caused an injury to the brain, causing post-concussion headaches with a vascular component. There is no competent evidence contrary to the March 2018 headaches DBQ and the March 2019 Dr. J.E. private medical evaluation report, both of which are in favor of the Veteran's claim for service connection for migraine headaches. Thus, the Board finds that entitlement to service connection for migraine headaches is warranted on a secondary basis as due to his service-connected residuals of a head injury. See 38 C.F.R. § 3.310(a). With respect to the claim for service connection for major depressive disorder, the Veteran contends that such disorder is secondary to his service-connected residuals of a head injury, or alternatively, secondary to his service-connected migraine headaches. The pertinent evidence of record includes a March 2018 mental disorders DBQ indicating that the Veteran sometimes becomes irritable and depressed by the chronicity of his ongoing headache symptoms. It was opined that the Veteran's major depressive disorder was due to his migraine headaches. In a March 2019 Dr. J.E. private medical evaluation report, it was opined that it was more likely than not that the TBI has caused a change in the emotional part of his brain, causing depression. There is no competent evidence contrary to the March 2018 mental disorders DBQ and the March 2019 Dr. J.E. private medical evaluation report, both of which are in favor of the Veteran's claim for service connection for major depressive disorder. Thus, the Board finds that entitlement to service connection for major depressive disorder is warranted on a secondary basis as due to his service-connected migraine headaches. See 38 C.F.R. § 3.310(a). In summary, the Board finds that the evidence persuasively favors the Veteran's claims for service connection for residuals of a head injury, migraine headaches and major depressive disorder. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, service connection for residuals of a head injury, migraine headaches and major depressive disorder is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.