Citation Nr: 1315526 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-14 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a variously diagnosed psychiatric disability. 2. Entitlement to service connection for a cognitive disability (claimed to be a residual of a closed-head injury). 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1995 to August 1999 with subsequent reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO). In January 2009, a hearing was held before a Decision Review Officer (DRO) at the RO; a transcript of the hearing is associated with the claims file. In April 2011, the case was remanded for additional development. The Veteran filed a claim seeking service connection for PTSD, and his claim has been adjudicated as limited to that diagnosis. At a January 2009 hearing before a decision review officer (DRO), the Veteran testified he has depression, and a January 2012 VA treatment record notes he has a diagnosis of a mood disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Board has characterized the issue on appeal accordingly. In September 2012 and in October 2012, the Veteran waived initial RO review of additional evidence received. The issue of service connection for a psychiatric disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if action on his part is required. FINDINGS OF FACT 1. A cognitive disability was not noted in service; the preponderance of the evidence is against a finding that any current cognitive disability is related to the Veteran's service or to any event therein. 2. During service the Veteran sustained an acute left knee injury that resolved; a chronic left knee disability was not manifested in service; the preponderance of the evidence is against a finding that any current left knee disability is related to the Veteran's service/an event therein. CONCLUSIONS OF LAW 1. Service connection for a cognitive disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. December 2007 and April 2011 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing; it also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs), pertinent postservice treatment records and Social Security Administration (SSA) records have been secured. The RO arranged for VA examination in May 2011. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. B. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and Virtual VA (VA's electronic data storage system) (no pertinent evidence was found in Virtual VA) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). To substantiate a claim of service connection, there must be evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Cognitive Disability The Veteran and his mother claim that he has a cognitive disorder that resulted from head injuries in service. A November 1998 STR notes the Veteran complained of numbness on the left posterior scalp of three days after he was kicked on the left side of the head while playing rugby. He denied loss of consciousness (LOC), visual disturbance or headache. He had a tingling sensation on the left side of the scalp. The assessment was scalp nerve stinger. He was advised to return for treatment immediately if headaches, LOC or visual disturbances occurred. An April 1999 report of medical history shows that the Veteran endorsed a medical history of head injury, frequent trouble sleeping, depression or excessive worry and periods of unconsciousness. He denied loss of memory and amnesia. An examiner noted that the Veteran sustained a head injury playing rugby followed by a momentary loss of consciousness and headache with no sequelae. An April 1999 report of medical examination shows that psychiatric clinical evaluation was normal. A history of concussion was noted. The STR's contain no mention of a cognitive disability. [There is also no notation of a head injury other than that sustained playing rugby.] A January 2001 report of medical history completed in connection with an examination for retention [in the Reserves] reflects that the Veteran denied a history of loss of memory or amnesia. An April 2001 report of medical examination for retention shows that psychiatric clinical evaluation of the Veteran was normal. It was noted that the Veteran was in good health. Private treatment records show that running while playing softball in June 2001 the veteran had a witnessed cardiac arrest. CPR was immediately instituted and he was found to be in ventricular fibrillation. He was resuscitated; but upon being stabilized had tonic/clonic movements, and subsequently required reintubation and paralyzation. Ultimately it was determined that he had been taking diet pills with Ephedrine. After being stabilized he was transferred for a comprehensive rehabilitation program to address impaired mobility and return to independent living. A history of 3 previous traumatic brain injuries (TBI's), one hitting a goalpost while playing soccer, one from being kicked in the head while playing rugby, and the third while riding a bicycle and hitting a sign (during service, while on leave) was noted. Physical examination in June 2001 found that the Veteran was unable to recall the doctor's name, or any objects at three minutes. His family reported good memory of past history from 1999, but had significant difficulties following that year. The impression was status post cardiac arrest with anoxic encephalopathy, and marked deficits in cognitive, activities of daily living, self-care and mobility. A July 2001 letter from Dr. Neeley notes that the Veteran's brain injury resulted in some marked cognitive deficits. An October 2001 treatment record from Dr. Greenwald also notes that the anoxic encephalopathy resulted in memory and cognitive deficits. A November 2001 private treatment record from Dr. Undesser shows the Veteran had short-term memory impairment as a result of ventricular fibrillatory arrest. A December 2001 VA examination report notes that the Veteran had seriously impaired cognitive function. His history, presentation and performance on the mini-mental state exam suggested that his cognitive function had recovered sufficiently to allow him to work. ??staff psychiatrist diagnosed cognitive disorder, NOS, in partial remission secondary to the brain hypoxia in June 2001. An April 2002 neuropsychological evaluation by Larry S. Friedman, Ph.D. found that the Veteran's serious anoxic brain injury had resulted in diffuse neuropsychological deficits. A July 2002 comprehensive history and physical examination from Dr. Falcon shows anoxic encephalopathy with noted cognitive and evidence behavioral sequellae. An August 2003 VA treatment report notes that the Veteran was troubled by recurrent anger outbursts and short temper since the June 2001 injury. His mother stated that he did not have such outbursts before the anoxic episode. Since the injury, he has also had problems with attention, concentration and memory. A February 2008 VA treatment record notes the Veteran's had difficulty remembering appointments and everyday information since his cardiac arrest in 2001. His mother stated that since the cardiac arrest, she had observed a complete change in his personality; and noted that he had poor organization skills, and significant issues with memory. The record also shows the Veteran had deficits in aspects of executive function, attention, verbal list recall and recognition, and motor functioning. Behavioral observations were consistent with previous reports of poor insight in social situations, poor problem solving skills and apathy. Compared to previous testing, there were generally no significant changes in neurocognitive functioning. Neurocognitive impairments appeared consistent with his cardiac arrest and subsequent anoxic brain injury in 2001. He was given a diagnosis of cognitive disorder NOS (resulting from anoxic head injury secondary to cardiac arrest). On May 24, 2011, a VA clinical neuropsychologist reviewed the record and opined that the Veteran's change in cognitive and emotional functioning is a result of his anoxic brain injury in July 2001. She noted references to possible concussive events in the STR's-a November 1998 STR noting complaints of numbness on the left side of his scalp after being kicked in the head during a rugby game a few days prior. The Veteran claimed momentary LOC and headaches afterward. The consulting provider observed that the original medical note showed no LOC and no headaches; she noted the April 1999 discharge physical examination that listed a history of loss of consciousness related to a 1998 rugby incident conflicted with the original medical note that called it a "stinger" of a scalp nerve. She stated that regardless, a history of concussion would not be linked to the abrupt change in cognition observed after the anoxic brain injury. These events would not be responsible for his anoxic brain injury the cognitive, emotions or functional deficits that he currently experiences. In May 31, 2011, the Veteran's mother stated that the Veteran hit his head on a sign while riding his bike on a recruiting detail in 1996 or 1997. The Veteran recalled that following the rugby injury in service he had a loss of sensation on the left side of his head, After interviewing and examining the Veteran, and reviewing his file, a VA physician opined that the likely etiology of the Veteran's current cognitive disorder was an "anoxic brain injury from sudden death in 2001" and was not related to head injuries in service. The examiner noted that there were no residuals of TBI identified in STRs, noted the Veteran's continuing participation in high-level rugby until separation from service, and noted the Veteran's denial of any TBI residuals on service separation examination. The Veteran continued to participate in competitive rugby (as a member of the Combined Forces Rugby Team) after passing physical standards to join the reserves. Per the Veteran and his mother, as well as medical notes dating to 2001, the Veteran was active and in excellent health up until his cardiac arrest. The examiner noted no evidence for either TBI or residuals attributable to TBI prior to the anoxic brain injury from cardiac arrest in 2001. It is not in dispute that the Veteran has cognitive impairment, as such is documented in the record since June 2001. It is also shown by contemporaneous records (and not in dispute) that the Veteran sustained at least one head injury in service; and given his fairly consistent reports (corroborated by lay statements of others) it may also reasonable be conceded that during service he sustained two additional head traumas which were not documented at the time they occurred. However, residual loss of cognitive function was not noted in service or on postservice periodic examination for Reserve service. Accordingly, service connection for cognitive impairment on the basis that such became manifest in service and persisted is not warranted. Consequently, to establish service connection for cognitive impairment the Veteran must present evidence of a nexus between such impairment and his service/TBI's therein (as alleged). The Veteran's various cognitive impairment became manifest following his episode of anoxia following cardiac arrest in June 2001; that fact is clearly documented in clinical records and is not specifically disputed. There is nothing in the record that relates the June 2001 episode of cardiac arrest and related period of anoxia to his service/injury, disease, or event therein. [While the reason for the cardiac arrest and period of anoxia leading cognitive impairment is not firmly established in the evidence of record, the Veteran's use of a dietary supplement has been implicated.] The Veteran's proposed theory of entitlement appears to be that his TBI's in service were also an etiological factor for his cognitive impairment. Although the Veteran, his mother, and his friend are competent to report symptoms [of cognitive impairment] exhibited by the Veteran that they observed, they are not competent to (by their own opinion) relate the symptoms to a TBI the Veteran suffered in service. However, whether or not cognitive impairment may be attributed to trauma in the past when there is a clearly demonstrated intervening causative event (the cardiac arrest in June 2001) is a matter that is beyond the scope of lay observation. It requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir, 2007). The Veteran, his mother and his friend are laypersons and lack such expertise. They do not cite to any supporting medical opinion or medical literature, and their own opinions are not competent evidence. The only competent evidence that addresses the matter of a nexus between the Veteran's cognitive impairment and his head injuries in service is in the May 2001 opinions of a VA physician and neuropsychologist. They both attribute the Veteran's cognitive impairment to his cardiac arrest/anoxia in June 2001 and indicate that his head injuries in service are not the cause of the cognitive impairment. As they express familiarity with the factual data, and explain the rationale for their opinions (citing to supporting factual data such as the absence of any notation of cognitive impairment following the injuries in service or on examinations afterwards-prior to the cardiac arrest in June 2001) their opinions are probative and persuasive evidence in this matter. Accordingly, the Board finds that the preponderance of the evidence is against this claim, and that the appeal seeking service connection for a cognitive disability must be denied. Left Knee Disability The Veteran claims that he has a left knee disability as a result of an injury he sustained playing rugby in service. At the January 2009 DRO hearing, he testified that he did not have any knee injuries prior to entering service, and has had no knee injuries postservice. An April 1998 STR shows the Veteran was seen for a complaint of left knee pain of four days duration. The assessment was lateral collateral ligament (LCL) strain versus quad tendonitis. A November 1998 record shows an assessment of a Grade I left knee strain and contusion after the Veteran was hit by another rugby player. A January 1999 STR shows status post left medial collateral strain (MCL) strain. An April 1999 report of medical history (in connection with a separation examination) shows that the Veteran endorsed a medical history of "trick" or locked knee. A physician's summary notes that the left knee occasionally gave out, and that there was pain and tense effusion. On April 1999 examination for separation from service the lower extremities were normal on clinical evaluation. Additionally, a January 2001 report of medical examination for retention in the reserves shows that the lower extremities were normal on clinical evaluation. A report of medical history compiled at shows that the Veteran denied a past/current history of "trick" or locked knee. He endorsed a history of swollen/painful joints and broken bones; the physician's summary only noted injuries to the left shoulder. A June 2004 VA treatment record notes the Veteran complained of left knee pain. A May 2007 x-ray report, and October 2007 and November 2007 VA treatment records note complaints of pain and giving out. In November 2007, the assessment was left knee pain, and questionable anterior cruciate ligament (ACL) laxity. On May 2011 VA examination a VA provider opined that the Veteran's left knee lateral collateral ligament strain was unrelated to his left knee complaints in service. He noted that even though the Veteran played what sounded like high-level rugby, there is only one documentation of lateral collateral ligament region injury in 1998. He noted that the Veteran had a medial collateral ligament strain later in 1998, which was resolved when he saw an orthopedic specialist in January 1999, and that the Veteran continued to play rugby. The examiner noted that the separation questionnaire noted that the Veteran's left knee occasionally gave out; but two years later, on examination for the reserves this appeared to have resolved. Per the Veteran's report, he participated in what sounds like high-level rugby while in the reserves; and per 2001 reports, the Veteran was employed by a lumber yard doing truck driving and heavy lifting. The VA examiner found that the left knee complaints experienced in service appeared to be self-limited episodes and remained so until 2007 or so. The examiner noted that VA records are silent for the knee for the past several years. While the record clearly shows that the Veteran sustained a left knee injury in service, it also shows that such episode was "self-limited" and that the complaints resolved with no sequelae. While this was not clear based on the service separation medical history (and particularly a provider's notation therein of occasional symptoms occurring) , it is evident from the report of the Veteran's reserve retention examination report two years later. Consequently, service connection for a left knee disability on the basis that such disability became manifest in service and persisted is not warranted. What remains for consideration is whether or not the Veteran's current left knee disability lateral collateral ligament strain may somehow otherwise be related to his service. In the absence of continuity of symptoms, the matter of a nexus between a current disability and a remote injury is a medical question that is beyond lay observation, and requires medical expertise. The Veteran is a layperson, who offers no explanation of rationale (other than by inference that the current complaints and the injury in service must be related because they affect the same anatomical area), and does not cite to supporting factual data, medical opinion, or medical literature. Therefore, his opinion lacks probative value. The only competent evidence in the record in this matter is the opinion of the May 2011 VA examiner. That provider expresses familiarity with the factual data, citing to them, and explains the rationale for the opinion, i.e., that the injury in service was self-limiting because residuals were not noted on subsequent examination, and also that the separate occasions when the Veteran was seen in service involved different pathology, with only the first occasion involving the anatomy currently implicated. (And that as that first injury in service is shown by subsequent examinations and the Veteran's vigorous activities thereafter to have resolved, the current left knee disability would not be related.) There is no competent evidence to the contrary. Accordingly, the Board finds that the preponderance of the evidence is against a finding of a nexus between the Veteran's current left knee disability and his service, and therefore against his claim. Hence, the benefit of the doubt doctrine does not apply; and the appeal in this matter must be denied. ORDER Service connection for a cognitive disability is denied. Service connection for a left knee disability is denied. REMAND In June 2009, the Veteran's representative asserted that the Veteran's depression/PTSD resulted from an October 1996 repelling accident in service. Investigation reports and statements from witnesses in the record appear to confirm the alleged stressor event in service. Medical/psychiatric opinions in the record have addressed the etiology of the Veteran's cognitive impairment, but not his psychiatric disability. With a current diagnosis of acquired psychiatric disability, treatment in service for suicidal thoughts, and a report of depression therein, the "low threshold" standard, as to when an examination to secure a nexus opinion is required, is met and such examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following: 1. The RO should arrange for a psychiatric examination of the Veteran to determine the nature and likely etiology of his psychiatric disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Please identify by psychiatric diagnosis each acquired psychiatric disability found/shown by the record since the Veteran filed his claim (December 2007). (b) As to each psychiatric disability entity diagnosed, please opine whether or not such disability is at least as likely as not (a 50 % or better probability) related to the Veteran's service, including the alleged stressor and complaints noted therein. The examiner must explain the rationale for all opinions. 2. The RO should then review the record and readjudicate the claim of service connection for a psychiatric disability. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs