Citation Nr: 1336720 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-00 124A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to an initial disability rating in excess of 10 percent for Schatzki's ring with gastroesophageal reflux disease and hiatal hernia. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1996 to November 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, that denied service connection for traumatic brain injury (TBI) with associated migraine headaches, memory loss, and difficulty concentrating, hiatal hernia, gastroesophageal reflux disease (GERD), and bilateral flexible flat foot. In June 2012, the Veteran presented sworn testimony during a Travel Board hearing in Fargo, North Dakota, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The Board issued a decision in September 2012 that remanded the claims for service connection for residuals of a TBI, hiatal hernia, GERD, and bilateral pes planus. That decision also denied an increased rating for a Schatzki ring. In a January 2013 rating decision, the Appeals Management Center (AMC) granted service connection for hiatal hernia and GERD effective May 15, 2009. Both disabilities were included in the 10 percent rating that had been assigned for the Veteran's already service connected Schatzki's ring. These grants of service connection are considered to be full grants of the benefits on appeal for the Veteran's hiatal hernia and GERD claims. The claims of entitlement to service connection for hiatal hernia and GERD are no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). However, in an August 2013 informal hearing presentation (IHP), the Veteran's representative argued that the Veteran disagreed with the 10 percent evaluation assigned for his now service-connected Schatzki's ring with hiatal hernia and GERD. Such constitutes a notice of disagreement (NOD) with the initial evaluation assigned for the hiatal hernia and GERD disabilities. Although the Board has previously adjudicated the initial evaluation assigned for the Veteran's service-connected Schatzki's ring, this NOD pertains to the new evaluation which now includes service-connected hiatal hernia and GERD. This evaluation has not yet been addressed by the Board and is therefore not finally decided by the Board. Despite this NOD as to the initial evaluation for Schatzki's ring with hiatal hernia and GERD, no statement of the case (SOC) has been issued for this issue. Because the filing of an NOD initiates appellate review, the claim for an increased initial rating for Schatzki's ring with hiatal hernia and GERD must be remanded for the preparation of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The issues of entitlement to service connection for bilateral pes planus and an increased initial rating for Schatzki's ring with hiatal hernia and GERD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has residuals of a traumatic brain injury that are the result of a disease or injury in active duty service. CONCLUSION OF LAW Residuals of a traumatic brain injury were not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in October 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The October 2008 letter also notified him of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and was sent prior initial adjudication of the Veteran's claim. Nothing more is required. VA's duty to assist has also been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file. The Veteran has not identified any outstanding private or other treatment records that he felt were relevant to his claim or that he wished for VA to obtain. The Veteran underwent VA examinations to evaluate his claimed TBI in December 2008 and November 2012. The reports from those examinations have been included in the claims file for review. The examinations involved a review of the claims file, a thorough examination of the Veteran, consideration of the Veteran's lay statements/history, and conclusions that were supported by sufficient rationale. The examinations are thereby adequate for to decide the TBI claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Some discussion of the Veteran's personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified. Information was also elicited from the Veteran concerning his contentions regarding the nature and etiology of his claimed TBI residuals. Notably, this hearing testimony, in part, triggered the Board's decision to remand this claim for further evidentiary development, including obtaining a new VA examination. As noted above, the Board remanded the Veteran's TBI claim in September 2012 to the AMC for further evidentiary development, including obtaining updated VA treatment records and providing the Veteran with a new VA examination and opinion for his claimed TBI residuals. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records and associated them with the Veteran's electronic claims file. The Veteran was also provided a VA TBI examination in November 2012. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). Essentially, in order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For veterans who engaged in combat with the enemy, lay testimony alone may be enough to establish an in-service event where such testimony is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of the injury. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Veteran claims that he was in close proximity to three IED detonations while serving in Iraq. He claims that he has experienced headaches, difficulty concentrating, and memory loss as a result. Therefore, he believes service connection is warranted. A review of the medical evidence reflects that the Veteran has been treated for complaints of headaches, difficulty concentrating, and memory loss. Additionally, a VA neurologist has diagnosed him with post-concussion syndrome based on his subjective complaints. The first element of Hickson is met. A review of the Veteran's service treatment records is negative for any complaints of headaches, difficulty concentrating, or memory loss in service. However, a December 2006 post-deployment health assessment noted the Veteran's report of being hit by three IED detonations while deployed. Additionally, he has been awarded the Combat Action Badge, indicating combat experience. His exposure to IED detonations is consistent with his combat experience and his military occupational specialty (MOS) of explosive ordnance disposal. As such, his reported exposure to IED detonations can be conceded and the second element of Hickson is met. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Although an in-service event and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's in-service exposure to IED detonations and his current complaints of headaches, difficulty concentrating, and memory loss. See Hickson, supra. The Veteran has been afforded two VA examinations in conjunction with his TBI claim. He was first examined in December 2008. At that time, he complained of mild headaches, difficulty concentrating, and memory loss. He reported being seen by a VA neurologist and having undergone an EEG and MRI which were both negative. He also relayed accounts of the three IED detonation experiences. The examiner concluded that there was nothing in the Veteran's history, on physical examination, or in his review of the records to indicate that the Veteran underwent a minor TBI and that the lack of temporal association between the in-service IED detonations and his first reported symptoms indicated that they were not related. He noted that the Veteran was currently operating at a very high level of intellectual function. He further noted that the Veteran's documented use of marijuana and service-connected psychiatric disorder may account for some of his reported symptoms. The Veteran was more recently examined in November 2012. At that time, he again reported migraine headaches, difficulty concentrating, and memory loss beginning in 2007, at least 6 months after his in-service incidents. Although the examiner noted the Veteran's in-service experiences, he also noted that the Veteran did not experience any loss of consciousness and that an August 2006 post-deployment questionnaire noted that the Veteran was not injured in any of these incidents. He further pointed out the Veteran's September 2006 separation examination during which he did not complain of any problems and specifically denied any lightheadedness, dizziness, or memory loss. The examiner concluded that the Veteran had not experienced a TBI, as he did not experience symptoms until months after the IED detonations. Further, he opined that the Veteran's symptoms were related to emotional stress, as they improved with a reduction in stress. As such, he was unable to link the Veteran's symptoms to his military service. The remaining medical evidence includes VA treatment records referencing neurological treatment and diagnoses of post-concussion syndrome. To the extent that the Veteran claims that the diagnosis of post-concussion syndrome is sufficient as a medical nexus upon which to grant service connection, the Board notes that it is free to favor one medical opinion over another as long as it provides an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the Board finds the two VA examiners' opinions more probative than the VA neurologist's diagnosis of post-concussion syndrome. The VA examiners provided rationales for their conclusions and addressed potential other causes for the Veteran's symptoms, including his psychiatric disorder and marijuana use. The VA neurologist did not address these possible causes. Further, the VA neurologist failed to address the Veteran's specific denial of neurological symptoms in service and at his separation examination or the gap in time between the in-service incidents and his first reported symptoms. The Veteran's report of symptoms immediately following the in-service IED detonations is not deemed credible. He specifically denied injuries or symptoms following these incidents. Had he been experiencing problems with headaches, memory loss, and difficulty concentrating, it would have clearly been in his best interest to report the same. He clearly reported that he was "feeling fine." It is also notable that he to two VA examiners that his symptoms did not begin until at least 6 months after service. Thus, if the VA neurologist relied on any such statements in diagnosing the Veteran with post-concussive syndrome, the diagnosis would be predicated on a less than credible history and assigned limited probative value. Coburn v. Nicholson, 19 Vet. App. 427 (2006) (held that reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran). In light of these deficiencies, the Board finds the diagnosis of post-concussive syndrome from the VA neurologist to be less probative as to the etiology of the Veteran's complaints of headaches, difficulty concentrating, and memory loss than the VA opinions and insufficient to grant service connection. The only other evidence which purports to link the Veteran's current complaints of headaches, difficulty concentrating, and memory loss to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of neurological medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe what he experiences (in this case, headaches, difficulty concentrating, and memory loss), he is not able to provide competent evidence as to the etiology of these complaints. Providing such an opinion requires medical expertise in the cause and symptoms of TBIs, particularly in the context of psychiatric disorders and marijuana use. The Veteran and his representative have no such expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also 38 C.F.R. § 3.159 (a)(1) (2013). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. In this case, the Veteran has not consistently complained of headaches, difficulty concentrating, and memory loss since service. Further, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). TBI, headaches, difficulty concentrating, and memory loss are not on the list of chronic diseases. These are not organic diseases of the nervous system. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. The competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service and his current complaints of headaches, difficulty concentrating, and memory loss. Although the Board notes the Veteran's current complaints and conceded in-service exposure to IED detonations, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for residuals of a TBI must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for residuals of a traumatic brain injury is denied. REMAND As noted above, there is no evidence in the claims file to indicate that the RO issued an SOC in response to the Veteran's NOD with the initial evaluation assigned for Schatzki's ring with hiatal hernia and GERD. Therefore, the issue of entitlement to an initial evaluation in excess of 10 percent for Schatzki's ring with hiatal hernia and GERD must be remanded to the RO/AMC to issue an SOC. See Manlincon, supra. After a thorough review of the claims file, the Board finds that further evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for bilateral pes planus. The Board sincerely regrets the delay caused by this additional remand but finds that the development requested herein is necessary prior to a final adjudication of the appeal. The Veteran was afforded a VA examination for his pes planus in November 2012. The examiner concluded that the Veteran's current pes planus was not related to his military service, at least in part, because there was no documentation of foot complaints in the service treatment records. Although the Veteran's complaints of foot pain following an IED explosion until the present were not documented in the service treatment records, these complaints are consistent with his combat service and MOS and are, therefore, conceded. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Although the examiner noted the Veteran's complaints of in-service foot pain, he stated that they were time limited. This is inconsistent with the Veteran's testimony of foot pain since the in-service IED detonation. See DRO informal conference report, January 2011; Board hearing transcript, June 2012. Additionally, the examiner failed to address whether the Veteran's carrying of 50 to 80 pounds of equipment while performing his explosive ordnance disposal duties in Iraq could have caused his current pes planus. In light of these deficiencies, the examination is not adequate to decide. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The case must be remanded to obtain an addendum medical opinion. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his representative with a statement of the case regarding his claim of entitlement to an initial evaluation in excess of 10 percent for Schatzki's ring with hiatal hernia and GERD. They should be advised of the time period in which to perfect an appeal. If the Veteran perfects an appeal, the issue should then be returned to the Board for further appellate consideration. 2. Following completion of the above, return the Veteran's claims file to the original November 2012 VA examiner, if possible, for an addendum opinion. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination, including the Veteran's DRO and Board testimony that he has experienced foot pain since service and that he carried 50 to 80 pounds of equipment while serving in Iraq. This must be noted in the examination report. If the original November 2012 examiner is unavailable, the Veteran's claims file should be provided to another appropriate examiner for review. The Veteran may be recalled for examination if deemed necessary. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed pes planus was caused or aggravated by his military service, including exposure to IED detonations and/or carrying 50 to 80 pounds of equipment. He should specifically address the Veteran's contentions of continuous foot pain since service. The examiner is reminded that the Veteran's reports of foot pain and carrying heavy equipment during his combat service are presumed to have occurred. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection bilateral pes planus should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs