Citation Nr: 1621773 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 10-03 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether it was proper to sever service connection for residuals of a traumatic brain injury (TBI). 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and diagnosed as depression. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1978. This matter is on appeal from rating decisions in May 2008 and March 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in April 2016. A transcript of the hearing is of record. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Clear and unmistakable evidence sufficient to sever the grant of service connection for residuals of a TBI has not been shown. 2. It is at least as likely as not that the Veteran's acquired psychiatric disorder is related to his service-connected residuals of a TBI. CONCLUSIONS OF LAW 1. The severance of service connection for residuals of a TBI was not proper, and service connection is restored. 38 U.S.C.A. §§ 1110, 1131, 5107, 5109A (West 2014); 38 C.F.R. § 3.105, 3.303 (2015). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and diagnosed as depression, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Severance of Service Connection Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous, with the burden of proof being upon VA. However, the review of the record is not limited to evidence that was before the RO at the time of the original adjudication. See 38 C.F.R. § 3.105(d); see also Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997). A change in diagnosis may be accepted as a basis for a severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. 38 U.S.C.A. § 5112(b)(6); 38 C.F.R. § 3.105(d). In this case, the Veteran was granted service connection for residuals of a TBI in a December 2009 rating decision, which was based substantially on an in-service incident in May 1976 where he was struck in the head during an armored personnel carrier accident. A VA examination in November 2009, which diagnosed residuals of a TBI, indicated that such residuals were related to his in-service accident, based on the Veteran's statements regarding the incident and the service treatment records. In January 2011, the Veteran claimed entitlement to an increased rating for this decision. In response, based on a new VA examination in July 2011, the RO issued a rating decision in July 2012 proposing to sever service connection for this disability. After another VA examination was performed in January 2013, the RO issued the rating decision on appeal in March 2013, which severed service connection. As an initial matter, there are specific notice requirements which are applicable to severance of service connection. 38 C.F.R. § 3.105(d), (i). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified of the contemplated action and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained or to request a hearing. 38 C.F.R. § 3.105(i). If additional evidence is not received within the 60 day window following notice of the proposed rating reduction, a final rating action will be taken and the award reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). In this case, the RO provided adequate notice to the Veteran of the proposed severance in a July 2012 rating decision, explaining the procedural rights in the accompanying August letter. After this letter was sent, the Veteran was afforded a new VA examination, and the RO did not sever service connection until March 2013, and well over the required 60 days. Based on this evidence, the Board finds that the requirements regarding notice for the severance of service connection have been met. 38 C.F.R. § 3.105(d). Nevertheless, the Board finds that severance of service connection is not warranted, as clear and unmistakable evidence has not been shown. Specifically, service connection was severed based on the observations and opinions submitted by VA examiners in July 2011 and January 2013. In the July 2011 examination, the examiner noted that the Veteran's service treatment records were "clear that the [Veteran] not diagnosed with a concussive injury immediately after the injury." This examiner also noted that the Veteran's complaints were of recent onset. At the VA examination in January 2013, the VA examiner stated that there was "no evidence that the Veteran sustained a TBI in service." While the service treatment records did note a laceration to the head resulting from a vehicular accident, it was not associated with a loss of consciousness. This VA examiner also faulted the November 2009 VA examination for relying on the Veteran's statements which were not corroborated by the record. While the July 2011 and January 2013 VA examinations are of significant weight, and are very thorough, their conclusions are based mostly on a different interpretation of the same facts that were before the VA examiner in November 2009. Indeed, the negative opinions rely heavily on a finding that the Veteran's stated history of symptoms was not credible. However, the November 2009 VA examiner, and later the RO, both obviously found such statements to be credible. Without any additional evidence that would justify finding the Veteran no longer credible or the November 2009 opinion patently incorrect, the new examinations do not rise to the level of "clear and unmistakable evidence." Therefore, as there has been no clear and unmistakable evidence that the original grant of service connection was erroneous, service connection should not be severed. Service Connection The Veteran has submitted a claim seeking service connection for an acquired psychiatric disorder, which has been typically characterized as depression. While he has characterized it as one for PTSD, a service connection claim which describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014 & Supp. 2015). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In this case, the Board determines that service connection should be granted, based on the evidence of record. Specifically, at a VA psychiatric examination in July 2011, the VA examiner stated that the Veteran's psychiatric symptoms were at least as likely as not related to the TBI he experienced in service. While there is not a thorough rationale in support of this opinion, there is no clinical evidence of record contradicting this opinion. In light of the above discussion, the Board concludes that the evidence supports the Veteran's claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is granted. VA Duty to Notify and Assist VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, to the extent it is being adjudicated, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER The severance of service connection for residuals of a TBI was not proper, and service connection is restored. Service connection for an acquired psychiatric disorder, claimed as PTSD and diagnosed as depression, is granted. REMAND As for the Veteran's claim for TDIU, since the Board has reinstated service connection for residuals of a TBI and granted service connection for an acquired psychiatric disorder, his disability picture has now changed. As such, it would be prejudicial to evaluate the Veteran's TDIU claim in the first instance given these changes. Therefore, the RO should reevaluate this issue prior to Board consideration Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from the VA Medical Center in Portland, Oregon, since April 2016, as well as from any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. The RO should undertake any additional action it deems necessary in order to properly adjudicate the claim, including any additional VA examinations. 3. After the above action is completed, if the claim is not fully granted, a supplemental statement of the case should be issued on the issue of entitlement to TDIU, and the claims file should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs