Citation Nr: 1336719 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-20 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and friend ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 2003 to January 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In October 2008 a hearing was held before a decision review officer (DRO) at the RO. In August 2012 a Travel Board hearing was held before the undersigned. Transcripts of both hearings are associated with the record. In October 2012 the Board remanded this matter for additional development. FINDING OF FACT 1. The Veteran sustained TBI injuries in service. 2. Competent evidence shows that he has scars, headshake, and balance, gait and coordination disturbances that are attributed to TBI injury. CONCLUSION OF LAW Service connection for scars, headshake, and balance, gait, and coordination disturbances as residuals of TBI is warranted. 38 U.S.C.A. §§ 1110, 1154(b) 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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). The VCAA applies to this claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 claim prior to its initial adjudication. A February 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. Regarding notice, the Board observes that at the Travel Board hearing before the undersigned the Veteran was not specifically advised of what is needed to substantiate his claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board has considered whether the Veteran has been prejudiced by such omission (which would require corrective action), and has found that he has not been prejudiced. The testimony elicited by his representative (and the undersigned) at the reflects that he is aware that to substantiate this claim he must show that he now has the disability (it is conceded, and not in dispute, that he was exposed to concussive/head trauma in service) for which service connection is sought. His (and his friend's) testimony describing alleged symptoms of TBI reflects that he is well aware of what remains necessary to substantiate his claim. Notably, the development (for a VA examination) sought on remand was for the purpose of assisting him in substantiating his claim. The Board therefore finds that a remand for corrective notice is not necessary. The Veteran's available service treatment records (STRs) and VA treatment records have been associated with the claims file. The RO arranged for VA examinations in March 2007 (general), December 2007 (neuropsychological evaluation); July 2008 (TBI); February 2011 (psychiatric); and December 2012 (TBI, pursuant to Board remand). Together, the examination reports are adequate for rating purposes, as the examiners considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noted pertinent history and made all findings necessary for a proper determination in the matter, and explained the rationale for the opinions offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent and available evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis 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. Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (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). If a Veteran served in combat, lay evidence is satisfactory to prove occurrence of an injury in such service, if consistent with the circumstances of service. 38 U.S.C.A. § 1154(b). 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). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. [The Board notes that this decision does not encompass psychiatric disability, tinnitus, and/or headaches. PTSD and tinnitus are service connected, and service connection for headaches was the subject of a separate claim by the Veteran, and unappealed (therefore outside the Board's jurisdiction) denial rating decision.] It is also noteworthy at the outset that it has been established by the Veteran's testimony/accounts (which are consistent with official records), and is not in dispute, that during service in combat circumstances he sustained concussive/head injuries from the effects of explosions in near proximity and from being thrown about (with head trauma) in a vehicle from the effects of an explosion. The Veteran's STRs do not show treatment for or diagnosis of memory problems, facial numbness, twitchiness and/or blackouts/seizures. However, in an October 2006 post-deployment questionnaire he endorsed having numbness or tingling in the hands or feet, and difficulty remembering that developed during his deployment. On March 2007 (less than 2 months following service separation) examination on behalf of VA the cranial nerves and other neurological system were normal on clinical evaluation. Mental status examination revealed the Veteran was alert and oriented times three; his behavior and comprehension were normal, and his memory was intact. He was found to have residual numbness from a lymph node resection on the left side of neck. On October 2007 VA outpatient neurology consultation, the Veteran described multiple head and blast injuries. He reported being subjected to loud noises from blasts and from diesel engines. He related that during his second deployment (2005-2006) he sustained concussive trauma with loss of consciousness on several occasions from mortar shells exploding nearby. He reported headaches, and it was noted that the headaches (which are not at issue herein) are probably related to TBI. A November 2007 VA mental health outpatient progress note reflects that the Veteran's speech was then found to be of normal rate, rhythm and tone, and well linked. His cognitive function was grossly intact. His insight was intact and he had good judgment. On December 2007 VA neuropsychological evaluation the Veteran reported that during his second tour in Iraq he was thrown from a vehicle (and lost consciousness for approximately five minutes) by a blast at the rear of a vehicle he was driving. He related that another time he was knocked off his feet by exploding mortar rounds and sustained a bruise on his temple, but did not lose consciousness; in another such incident (involving and exploding mortar round), he sustained a gash on the head and became "dazed and confused." In yet another incident a mortar round went off in the barracks and a large piece of wood fell and hit him in the head (rendering him unconscious for about 20 minutes). Afterwards, he was treated with medication and returned to duty. He stated that he experienced loss of sensation in his left upper extremity. On neuropsychological evaluation he reported having migraine headaches with blurred vision 3 to 4 times a week. He also reported having slurred speech and stuttering difficulties and believed these were related to a TBI in Iraq. He reported having significant memory problems (such as going to the store and forgetting what he was to purchase), and reported having difficulty remembering remote significant events. He stated that his memory was "perfect" before Iraq and that his current "memory struggles" are embarrassing to him. On behavioral observation the examiner noted that the Veteran did not exhibit any of the speech or memory difficulties he described. In fact, he was quite adept at remembering times, dates, and details of past events. He displayed good judgment during the interview and testing. It was noted that testing indicated that the Veteran was experiencing moderate-severe levels of depression and anxiety, and other measures of emotional functioning, indicative of high levels of psychological distress. The distress contributed significantly to his reduced cognitive efficiency. The Axis I diagnoses were rule out cognitive disorder, not otherwise specified, conversion disorder, PTSD and dysthymia. The Axis III diagnoses were history of TBI, tinnitus, sensorineural hearing loss, and unexplained temporary paralysis. In February 2008 the Veteran was seen by a VA clinical neuropsychologist for evaluation of short-term memory. It was noted that he had recently completed neuropsychological and cognitive-linguistic evaluations. Given those evaluations the neuropsychologist felt it was inappropriate and untimely to complete another evaluation. She suggested that the Veteran continue to participate in psychotherapy to address his significant psychiatric distress (PTSD and dysthymia), as that was likely contributing to his short-term memory loss. She noted that psychiatric distress (e.g., disrupted sleep, intrusive thoughts, fatigue, hypervigilance, etc.) is well known to reduce cognitive efficiency, particularly in the areas of attention and memory, and short-term memory complaints are often related to variable attention rather than to actual memory impairment. A March 2008 VA speech pathology progress note reflects that the Veteran had extensive work-up for TBI, PTSD, mental health and other problems. He reported he had been subjected to multiple blasts, with several periods of unconsciousness. He reported daily headaches, nausea, episodes of falling, left-sided weakness, memory problems, and hearing loss. He endorsed PTSD symptoms and sleep difficulties. The diagnosis was questionable cognitive-communication deficits which may be the result of, or exacerbated by, current psychological status. A March 2008 MRI [magnetic resonance imaging] for complaints of left side weakness, with falls related to sudden worsening of the left side was interpreted as normal, with no evidence of infarction or demyelination. On July 2008 VA TBI examination in connection with the instant claim, after reviewing the claims file and treatment records (including a mini mental state examination report, a CT [computed tomography] scan and an MRI of the brain, a speech and communication evaluation, and neuropsychological testing) and following clinical evaluation, the VA examiner found, "the consensus [among the care providers who had evaluated the Veteran] was that problems with attention and concentration and short term memory were more related to psychiatric distress than posttraumatic stress disorder and dysthymia and neuropsychological testing could not demonstrate a separate cognitive deficit." The examiner noted "[a]lthough the patient has a number of complaints with difficulty of function of his left side, he has no clear pathologic objective findings." The examiner concluded, "based on the pattern of his neurologic examination imaging results and neuropsych testing it is more likely than not that the patient's symptoms reflect post traumatic stress disorder and or other psychiatric additions defined by the mental health specialist and it is less likely than not that he has post mild traumatic brain injury." On July 2008 VA PTSD examination, it was noted that the Veteran had severe short-term memory impairment and severe long-term memory problems. He had no impairment of thought process or communication, and his rate and flow of speech were normal. On February 2011 examination on behalf of VA the Veteran reported that he sustained a TBI which resulted in migraines consisting of headaches as well as problems with sensation and visualization. He also had seizures which were preceded by hyperventilating. He claimed the TBI led to memory loss and "dissociation." He stated that he was unable to work full-time, and perform at his previous physical and mental level due to the impact of his PTSD and TBI. On examination, his communication and speech were normal, (but at times speech was circumstantial). He had impaired attention or focus, and was unable to remember certain words. His thought process was normal. There was evidence of mildly impaired judgment (acting upon hypervigilant thoughts, beliefs or feelings). His abstract thinking was not impaired. Memory was moderately impaired in that he claimed that he fails to complete tasks at times. He claimed he forgets his own name (including on a job interview one week prior). TBI was diagnosed under Axis III. The examiner noted that the Veteran had difficulty understanding complex commands due to the extent, degree and range of his psychiatric symptoms. He also noted that a specific and separate evaluation for TBI and the impact it may have on the Veteran's overall psychopathology was necessary, as his complaint of headaches and seizures could be attributable to anxiety levels and may not have a neurological basis s from a TBI. An April 2012 CT of the head showed no evidence of acute intercranial hemorrhage or mass effect. There was opacification of the frontal sinuses and ethmoid air cells. At his August 2012 Travel Board hearing, the Veteran testified that he had memory problems, facial numbness, twitchiness and blackouts/seizures which appeared sometime around May 2007, after his service in Iraq. He stated that his life is not normal like it once was; as an example he related that he cannot feel his face to perform personal hygiene (shave). His friend testified that he had seizures or passing out episodes, when she would have to catch him before he fell. On December 2012 VA examination for TBI (by a neurologist), the examiner opined that it was less likely than not (less than 50 percent probability) that the claimed condition was incurred in or caused by the claimed injury, event, or illness in-service. The examiner explained that while exposure to multiple mortar blasts with episodes of loss of consciousness would have resulted in multiple mild TBI's, it was not likely that the multiplicity of symptoms presented resulted from the TBI's. The examiner indicated that based on review of the entire record and 35 years of experience it was his opinion that the symptoms were emotionally generated. The examiner noted the Veteran's history and subjective complaints and indicated that the complaints of mild memory loss and attention and concentration, deficits were not confirmed by objective testing. The examiner indicated that the Veteran's motor activity and spatial orientation were normal. The Veteran had no neurobehavioral effects and his communication and consciousness were normal. The December 2012 VA examiner found that the Veteran has scars headshake, and gait, coordination and balance complaints due to TBI. At the outset, it is noteworthy that the Veteran is acknowledged to have served in combat. He is entitled to consideration of his claim under the relaxed evidentiary standards of 38 U.S.C.A. § 1154(b). Applying those standards, it is established, and not in dispute, that he sustained TBIs from the concussive effects of being in proximity to explosions and being tossed about a vehicle in which he was riding in service. However, the remaining question to be resolved regarding the Veteran's claim, i.e., whether he has current disability that is a residual of the TBI's in service is a medical question which must be addressed by competent (medical) evidence. As was noted above, service connection has been established for a psychiatric disability and for tinnitus, and an unappealed rating decision denied service connection for headaches. Therefore, those disabilities are not for consideration herein. A VA neurologist has found that the Veteran has scars, headshakes, and reported balance, gait, and coordination problems as residuals of TBI. While that examiner also indicated that the Veteran's presenting complaints were not related to injuries/events in service, given the acknowledgment by that provider that these symptoms and pathology are attributable to TBI, that there is no evidence of TBI other than in service, that the symptoms appeared so soon after service, and applying the relaxed evidentiary standards of 38 U.S.C.A. § 1154(b) and the provisions of 38 C.F.R. § 3.102, the Board finds that the Veteran's scars noted by the VA examiner, headshakes, and balance, gait, and coordination problems are shown to be residuals of TBIs in service, and that service connection for such symptoms and pathology is warranted. As to the further symptoms and pathology claimed (to include seizures other motor activity, memory loss, lack of judgment, deficits in concentration, orientation, executive function, and judgment), the December 2012 VA examiner either indicated that they were not shown or that they are due to co-existing (and service-connected) psychiatric disability. ORDER Service connection for scars, headshakes, and reported gait, balance, and coordination deficits as residuals of TBI is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs