Citation Nr: 1334233 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-35 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable rating for chronic muscle tension headaches. 2. Entitlement to service connection for a perforated ear drum. 3. Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder. 4. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to February 1955. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Although the September 2008 rating decision did not address any psychiatric disorders other than PTSD and major depressive disorder, the Board has explaned the issue to include all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issues of entitlement to a compensable rating for headaches, service connection for a psychiatric disability, and entitlement to a TDIU are addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT Neither a perforated ear drum nor any residual thereof has been present at any time during the pendency of the Veteran's claim. CONCLUSION OF LAW The criteria for service connection for an ear drum perforation are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in August 2007, prior to the initial adjudication of the claim. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the record reflects that service treatment records and all available post-service medical evidence identified by the Veteran has been obtained.. In addition, the Veteran was afforded an appropriate VA examination. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. The Veteran was scheduled for a Travel Board hearing in August 2013. He failed to appear for the hearing without explanation and has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed withdrawn. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis Service treatment records reflect that the Veteran was seen in October 1954 for possible sinusitis due to barotrauma. The Veteran reportedly had been exposed in training to forces/ noises associated with firing large guns. However, sinus and skull evaluations including X-rays were negative for any effects of barotrauma. The examinationwas positive for hysterical elements. No organic disorder was identified. The Veteran was referred to psychiatric services. The Veteran was separated from service following a Board Medical Survey due to an inadequate personality. The Veteran's service treatment and examination records do not reveal any findings of a perforated ear drum. Post-service medical records, including records of audiology examinations, are similarly negative for any evidence of a perforated ear drum or any residual thereof.. An audiology treatment examination in August 2006 and an April 2010 VA examination disclosed no abnormality of the tympanic membranes. Thus, the evidence of a perforated ear drum in service or thereafter is limited to the Veteran's own statements. While the Veteran is competent to report symptoms susceptible to lay observation, as a lay person, he lacks the expertise required diagnose a perforated ear drum or any residuals thereof. In view of the absence of any competent evidence of a perforated ear drum and the medical evidence showing that the Veteran's ear drums are normal, this claim must be denied. In reaching this decision the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for tympanic membrane perforation is denied. REMAND Headaches Diagnostic Code 8100 provides for a 50 percent rating for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is provided for migraine headaches with characteristic prostrating attacks averaging one attack in two months over last several months. Less frequent attacks warrant a noncompensable rating. The Veteran was most recently afforded a VA examination to address his headaches in May 2011. That examiner diagnosed muscle tension headaches, but failed to provide an adequate assessment of the frequency of any prostrating attacks of the headaches. The examiner did note that the Veteran reported having headaches two or three times weekly, sometimes with vertigo or a dizzy sensation, and lasting from five to sixty minutes. The Veteran reported frequently treating the headaches with Vicodin or Lorazepam, and that he would go indoors and sit quietly, trying to avoid going outdoors. The examiner noted that the Veteran had had these headaches for the past 35 years, but that when they occurred other than his having to sit quietly he was not "prostrated as such" due to the headaches. This assessment of not being "prostrated as such" appears somewhat at odds with the Veteran's description of his headaches at that examination, "as if his head is in a vise and being compressed from all sides." Additionally, the examiner noted that the Veteran's claims file was unavailable for review, though the examiner did have access to some electronic medical records. In light of these circumstances, the Board has determined that the Veteran should be afforded another VA examination to determine the degree of severity of his headaches. Psychiatric Disability As the Veteran's authorized representative pointed out in September 2013 written argument, the Veteran was hospitalized in March 2008 with a diagnosis of PTSD and traumatic brain injury (TBI) based on the Veteran's assertion that he had shot himself in the head in service. This history of shooting himself in service is not supported by service clinical records. The Veteran provided an alternate narrative during an October 2007 VA neurological consultation. At that time, he asserted that canons had gone off over his head and "blew his head off." Clearly, neither of these events actually happened. These statement appear to be hyperbolic references to an episode in service when the Veteran was subjected to the sound/blast effect of the firing a "big gun" while he was in training and not wearing any hearing protection. At a January 2010 VA psychiatric examination for compensation purposes, the "big gun" was identified as a 155 mm gun. Service records reflect some treatment for sinus or headache difficulties, with the Veteran having been placed on a sick list for six days in October 1954 for diagnosed acute sinusitis, with noted barotrauma and headaches. They also reflect that he was diagnosed with a discharged from service due to inadequate personality. Service treatment records also note some nervousness. The Veteran has attributed significant difficulties, including psychiatric difficulties, to his alleged exposure to the above-noted in-service gun blast without hearing protection. At the January psychiatric 2010 examination, the Veteran provided a post-service history of having five or six jobs between 1955 and 1975, and being fired from all of them. He reported working for the railroad and injuring his back in that capacity in 1968, and as a result undergoing back surgery twice, in 1968 and 1972. He reported having last worked in 1975. The Veteran also reported having supported himself between 1976 and 1998 through "illegal" activity. He asserted that he was awarded Social Security benefits based on his age in 1998. The Veteran also reported a long history following service of violence against multiple wives and a girlfriend, with past wives leaving him due to this violence. At the January 2010 VA examination, he blamed this history of violence on brain trauma from the "big gun" in service. The examiner accepted the narrative of the Veteran having suffered brain trauma in service, and attributed cognitive deficiencies to the traumatic brain injury reported by the Veteran. The examiner diagnosed PTSD and TBI on the basis of the aforementioned incident reported by the Veteran. Additionally, the January 2010 psychiatric examiner accepted the Veteran's self-report of having a minimal or no history of abuse of alcohol or illicit drugs. This history is contrary to that relied upon by a VA examiner who examined the Veteran for TBI/cognitive disorder and PTSD in December 2009. The December 2009 examiner rather relied upon an assessed "extensive history of polysubstance use starting in 1955 until 1999." The December 2009 examiner reported as follows: He states that he is not using alcohol at all. However, the C-File shows that in 2009 the Veteran has problems with alcohol abuse. He has a history of using street drugs and used marijuana the first time six months after his injury. He also abused other drugs that he got from Mexico. He states that he stopped using drugs during 1999. The Veteran's assertion of ceasing to use drugs in 1999 would appear to undermine the Veteran's assertion at other times of never having used illicit drugs, and to call into question his report at the January 2010 examination of minimal to no history of illicit drug use. The question of past illicit drug use is of particular import in this case, because of the December 2009 examiner's assessment of current disability: The two disorders that accounts (sic) mostly for the enduring pattern of his impairment [are] chronic residuals of Substance-Induced Persisting Amnesic Disorder due to polysubstance abuse (alcohol and unknown substances) currently in Full Sustained Remission and Major Depressive Disorder (MDD). These disorders are not service connected and more likely than not residuals of his more than 45 years of polysubstance abuse. The December 2009 examiner thus attributed current identified cognitive and psychiatric impairments to residuals of polysubstance abuse, whereas the January 2010 VA examiner attributed them to TBI and PTSD from the asserted in-service canon blast incident. The December 2009 examiner explicitly ruled out a PTSD diagnosis, based on the absence of symptoms required for a diagnosis of PTSD under categories of "reliving" and "avoidance". The December 2009 examiner thereby concluded that the Veteran's symptoms, including hypervigilance with "associated anger" (and "history of violence"), "irritation," and "anxiousness," were more likely from another source, and observed that these symptoms may result from long-term substance abuse "even after years of sustained remission." The January psychiatric 2010 VA examiner did not review the claims files until after preparing a first examination report in which he concluded that the Veteran suffered from TBI and PTSD from a gun blast episode in service. After reviewing the claims files, the examiner prepared an addendum showing diagnoses three Axis I disorders, all of which he attributed to the in-service gun blast episode or otherwise found them to have developed contemporaneously with that episode: Dementia not otherwise specified [...] as the residual state of his current traumatic brain injury damage (organic/physical). The second diagnosis would be that of posttraumatic stress disorder [...] due to the gunshot blast in 10/1954 also with almost all symptoms fully blooming by 1955. This represents the psychological response and consequences of the gunshot or canon shot injury. The third diagnosis would be that of major depression severe, recurrent, severe with psychosis [...] secondary to both the posttraumatic stress disorder symptoms and the traumatic brain injury symptoms with a residual of dementia, the latter being the most prominent cause of depression in my opinion. The January psychiatric 2010 VA examiner stated at the end of the addendum that he did not have the time to review the report of a VA neurological/ TBI examination in January 2010, and that he did not review the results of neuropsychological testing performed in June 2008 and January 2009. These oversights on their face appear troubling since the January 2010 examiner relied heavily on the inaccurage premise that the Veteran sustained TBI or physical brain injury from the reported canon blast in service. The report of the January 2010 TBI/brain injury examination which the January 2010 psychiatric examiner did not review, notes that the neurologist did review the claims files including pertinent neurological records. The neurologist noted that service records included a record of service hospitalization beginning on October 26, 1954, when the initial diagnoses were sinusitis and headaches, and the impression upon that admission, including based on examination with neurological examination, was of psychogenic headaches and possible conversion reaction. Sinus and skull x-rays during the hospitalization were normal, and the hospital discharge assessment was inadequate personality. The January 2010 neurologist noted that the service medical board at the time of service separation also found inadequate personality. The neurologist further noted that while service records show that headaches began following the exposure to gunfire, there was no service record of head trauma. The January 2010 TBI examiner asked the Veteran to state whether he ever suffered a head injury in service, but the Veteran was unable to offer an explanation or to provide any history of in-service head injury. The examiner concluded that the TBI diagnosis rendered in a May 2008 psychiatric admission was erroneous, since there was no history of brain injury. The examiner additionally noted that an MRI of the brain in May 2007 and head CT scans in August 2007 and March 2009 all produced normal findings. Neuropsychological testing and consultation were noted to have been attempted, but the Veteran refused to attend appointments when scheduled, or to agree to appointments, when these were attempted in April 2008 and again in September 2009, and the Veteran similarly cancelled several electromyelogram appointments in 2008. There were no abnormal neurological findings on the January 2010 TBI examination, and the examiner stated that "TBI was not detected." The Veteran provided a VA staff psychiatrist's brief note, dated in August 2009, opining that the Veteran's major depressive disorder was "more likely than not due to severe chronic tension headaches, which are service connected." In contrast, the January 2010 TBI examiner opined that the Veteran's tension headaches were, "secondary to psychogenic factors including anxiety and depression." The August 2009 letter does raise an alternative theory of causation to support the claim for service connection for a psychiatric disorder. The December 2009 TBI/cognitive disorder examiner noted that the Veteran has had a significant variety of psychiatric as well as Axis II diagnoses in recent years. The December 2009 examiner attributed psychiatric symptoms as most likely due to decades of polysubstance abuse, as already noted. Unlike the January 2010 VA psychiatric examiner, the December 2009 examiner accurately noted the absence of medical findings or documented history to support TBI. Because TBI has not been supported by neurological scans, tests, or evaluations, or indeed by plain questioning posed by the January 2010 VA neurologist to the Veteran of any history of head trauma, the January 2010 VA psychiatric examiner's diagnoses substantially relying on the presence of TBI in service are not probative. The January 2010 VA psychiatric examiner's failure to review past MRI brain and head CT scan findings and the contemporaneous January 2010 TBI examination report (with its finding of no TBI) also renders the examination report inadequate. Ultimately, the report of the December 2009 TBI/ cognitive disorder examination appears also to be insufficient because that examiner relied substantially upon a several-decade history of polysubstance abuse, which history appears to the Board, from a careful reading of the examination report, to have been based on a few statements (elsewhere contradicted) by the Veteran regarding past illicit substance use, and the Veteran's acknowledgement that he engaged in unspecified illegal activities to support himself between 1975 and 1999. In short, the voluminous record before the Board is still inadequate for adjudication purposes. The Board believes that an additional VA psychiatric examination by a different examiner is in order rather than merely an addendum opinion, in order to avoid the possibility of pre-judgment on the part of the January 2010 VA psychiatric examiner. The question of pre-judgment is particularly raised where, as here, the January 2010 psychiatric examiner at first did not review the claims files, and when he did so in order to prepare an addendum, he explicitly neglected to review neurological findings which were against the presence of TBI, where the January 2010 VA examiner's opinion was substantially dependent upon the presence of TBI related to service. TDIU The claim for TDIU is inextricably intertwined with other claims that are being remanded. Therefore, the Board will defer its decision on the TDIU claim. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran all required notice in response to the claim for service connection for psychiatric disability, other than PTSD and major depressive disorder. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remanded claims. 3. Request the Veteran to provide clarifying information concerning his history, if any, of drug and/or alcohol abuse. 4. Thereafter, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the nature and extent of the Veteran's service-connected muscle tension headaches. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to include an assessement of the frequency of any prostrating attacks associated with the disability. 5. The Veteran also should be afforded a VA examination by a psychiatrist or psychologist, who has not previously addressed the Veteran's claim. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. With respect to each such disorder, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder is etiologically related to the Veteran's active service. With respect to each such disorder which the examiner determines is not related to the Veteran's active service, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder was caused or permanently worsened by service-connected disability. A list of the Veteran's service-connected disabilities should be provided to the examiner. As of the time of this Board remand, the record reflects service connection for bilateral hearing loss, tinnitus, and chronic muscle tension headaches. For purposes of the opinions, the examiner should not accept the Veteran's statements concerning the incurrence of traumatic brain injury in service as accurate. The rationale for each opinion expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 6. The RO or the AMC should also undertake any other development it determines to be warranted. 7. Thereafter, the RO or the AMC should readjudicate the Veteran's claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them an appropriate opportunity to respond before returning the case to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It must also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs