Citation Nr: 1338701 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-14 070 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for head injury residuals, including traumatic brain injury (TBI) residuals and a concussive disorder. 2. Entitlement to an increased disability rating for chronic tension headaches with an element of common migraine, currently 10 percent disabling. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 2002 to December 2002, and from October 2003 to April 2005. He served in Iraq and was awarded the Combat Action Badge (CAB). This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Chicago, Illinois, Regional Office (RO) which denied both service connection for TBI and an increased rating for chronic tension headaches with an element of common migraine. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence. The Board has reframed the issues in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The issues of entitlement to a TDIU and entitlement to an increased disability rating for chronic tension headaches with an element of common migraine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy and sustained a head injury. 2. The Veteran has been diagnosed with head injury residuals. 3. The Veteran's head injury residuals are related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for head injury residuals , including TBI residuals and a concussive disorder, are met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(d) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to 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.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this decision, the Board grants service connection for head injury residuals , including TBI residuals and a concussive disorder. As such action represents a complete allowance of the Veteran's claim, no further discussion of VA's duty to notify and to assist is necessary as to that issue. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The condition at issue, TBI, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is seeking service connection for head injury residuals for injuries that he contends he sustained in combat while on active duty in Iraq. After a review of all the evidence, lay and medical, the Board finds that the Veteran engaged in combat with the enemy and sustained a head injury. His service personnel records reflect that he served in Iraq as a gunner and was awarded the CAB. Throughout the record the Veteran indicates that in February 2004, he was injured after being struck in the back of the head by his vehicle's turret hatch while riding as a gunner. He also conveys injuring his head after being caught in the blast radius of one or more improvised explosive devices (IED). These events were witnessed by a soldier in the Veteran's unit. A statement was submitted by the soldier in February 2010. Head trauma is consistent with the circumstances, conditions and hardships of the Veteran's combat. In the absence of any evidence to the contrary, the Board finds that the Veteran sustained a combat related head injury. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). As to the issue of whether the Veteran has a current head injury disability, the Board finds that the competent evidence is in relative equipoise. The Veteran's service treatment records reflect no complaint, finding, or diagnosis of a head injury during active service. A February 2009 MRI of the Veteran's brain did reveal a very small subarachnoid cyst on the left side next to the cerebellum. At a January 2008 VA TBI screening, the Veteran conveyed symptoms including memory issues, balance or dizziness issues, sensitivity to bright light, irritability, headaches, and sleep problems. The report of an April 2008 VA TBI evaluation noted additional symptoms including headaches (for which he is currently service connected), poor coordination and concentration, nausea, and fatigue. The examiner opined that the findings were consistent with a diagnosis of TBI. At a February 2009 VA neuropsychology consultation, the Veteran was diagnosed with cognitive disorder NOS and concussion, with symptoms including pain, headaches, impaired attention, and slowed motor speed. The examiner opined that the Veteran sustained a mild closed head injury from blast exposure. In July 2010, the Veteran received a VA neurological examination for compensation purposes. He reported suffering from headaches three times per week. The examiner diagnosed the Veteran with "closed head trauma without traumatic brain injury." As the evidence is in relative equipoise, the Board will resolve reasonable doubt in the Veteran's favor to find that he currently suffers from head injury residuals. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board further finds that the evidence is in relative equipoise on the question of whether the Veteran's head injury residuals are related to service. As noted above, service treatment records reflect no complaint, finding, or diagnosis of a head injury during active service. The April 2008 VA TBI examiner found that the Veteran's TBI was caused by the turret hatch accident in Iraq. Similarly, the July 2010 VA neurological examiner found that the Veteran's closed head trauma was caused by the same accident. The February 2009 VA neurological examiner opined that the Veteran's closed head trauma was the result of blast exposure in Iraq. Resolving reasonable doubt in favor of the Veteran, as the Veteran sustained a combat related head injury and no alternative explanation for his head injury residuals has been advanced, the Board finds that the medical evidence sufficiently indicates that his head injury residuals are as likely as not related to his in-service combat experiences. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran was awarded the CAB and sustained an in-service head injury. He has been diagnosed with head injury residuals. The weight of the medical evidence indicates that the Veteran's head injury residuals are as likely as not related to service. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for head injury residuals (including TBI residuals and a concussive disorder) are met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for head injury residuals, including TBI residuals and a concussive disorder, is granted. REMAND Increased Disability Rating for Chronic Tension Headaches The Veteran contends that an increased disability rating is warranted for his service connected chronic tension headaches with an element of common migraine, currently rated as 10 percent disabling, as he is suffering from weekly prostrating headaches which interfere with his daily activities. Headaches are a symptom associated with the TBI residuals rating criteria. 38 C.F.R. § 4.130, Diagnostic Code 8045. Therefore, the Veteran's increased rating claim for his service-connected headache disorder is inextricably intertwined with the grant of service connection for head injury residuals (including TBI residuals and a concussive disorder) above. The claim will need to be readjudicated by the RO along with the assigning of an initial rating for his service-connected head injury residuals. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). TDIU The Court has directed that when entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Entitlement to a TDIU requires an accurate assessment of the functional impairment associated with all the veteran's service-connected disabilities. 38 C.F.R. § 4.16(b) (2013). In a February 2009 VA treatment record, the Veteran conveyed having lost his job. The report of a June 2010 VA PTSD mental health follow-up noted that the Veteran was having a hard time finding work, and that he was discouraged and depressed. As discussed in the July 2010 VA neurological examination for compensation purposes, "it is recognized that the cognitive symptoms associated with PTSD may overlap with symptoms of mild TBI." While the Veteran's May 2012 substantive appeal does indicate that the Veteran may have been employed at that time, it is unclear what, if any, job he was working. As the Veteran's employability may be related to his service-connected head injury residuals, the issue of entitlement to a TDIU has been raised. This issue has not been previously adjudicated or considered. Given the above award of service connection for head injury residuals, and the remand of the appeal for an increased disability rating for chronic tension headaches with an element of common migraine, the Board remands the issue of entitlement to a TDIU to the RO for evaluation. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all post-service neurological treatment received, including treatment for headaches and TBI, along with the addresses of all health care providers identified. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available documentation pertaining to the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical documentation since January 2010 pertaining to the treatment of the Veteran's head injury residuals, including headaches and TBI, not already of record. 3. Then readjudicate the claim of entitlement to an increased disability rating for chronic tension headaches with an element of common migraine, and adjudicate the claim of entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran should be issued the appropriate statement of the case (SOC) and/or supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs