Citation Nr: 1623728 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 11-25 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include cognitive learning disorder, and concussion residuals. 2. Entitlement to service connection for attention deficit disorder (ADD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from June 1976 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 2008, and July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2012, the Veteran testified at a Board hearing conducted before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board notes that the Veteran's appeal originally included the issue of entitlement to an increased evaluation for major depressive disorder; however, the Veteran did not submit a substantive appeal for that particular issue following the issuance of a June 2011 statement of the case. 38 C.F.R. § 20.202. In fact, the Veteran specifically limited her August 2011 VA Form 9 to the issues above. Accordingly, the issue of entitlement to an increased evaluation for major depressive disorder is no longer in appellate status, and no further consideration is required. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The record evidence is at least in relative equipoise as to whether the Veteran's residuals of a TBI, are manifested as a result of her active military service. 2. The probative evidence of record does not demonstrate that the Veteran suffers from attention deficit disorder. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for the residuals of a TBI have been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for establishing entitlement to service connection for ADD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Residuals of TBI VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit of service connection for TBI residuals. Any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. ADD VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). A standard October 2007 letter satisfied the duty to notify provisions. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The RO associated the Veteran's service treatment records (STRs), and VA treatment records with the claims file. Private treatment records have also been associated with the record. The Veteran has not identified any treatment records aside from those that are already of record, nor is there any indication that the Veteran has sought additional treatment relevant to the instant appeal. The prior remand instructions were substantially complied with for the Veteran's claim. The December 2013 Board remand requested that the Veteran have an opportunity to provide authorization for private records, and be given an examination for her TBI residuals. Private medical records have been obtained, and the Veteran underwent examination in April 2014. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The April 2014 examination was adequate, as the examination report shows that the examiners considered the Veteran's relevant medical/military/occupational history, reviewed relevant physical examinations with testing and provided reasoned analysis to support the medical opinion provided. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate). The Veteran was also provided an opportunity to set forth her contentions during a Board hearing in May 2012, which fulfilled the requirements set forth by Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). In July 2014, the Board notified the Appellant that the Veterans Law Judge who held the May 2012 Board hearing in this appeal is no longer employed by the Board. The Veteran was offered the opportunity for another Board hearing before a different Veterans Law Judge, or to consider the appeal based on the evidence of record. 38 U.S.C.A. § 7107(c). The Veteran elected to have her appeal determined based on the evidence of record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant." Id. at 367. Residuals of TBI The Veteran contends that her in-service motor vehicle accident caused additional disability beyond her service-connected mood disorder. The Veteran asserts that she has problems with short-term memory, problems forming words together and speaking, and that she has poor attention to detail. The Veteran also asserted problems with motor skills, vision, and headaches associated with her accident. The Veteran stated that she sought continued treatment from a cognitive behavior therapist for approximately five years. The Veteran's VA examination from April 2014, and private medical report from R.D.E., M.D. from January 2014 confirm the Veteran's current cognitive and comprehension problems. Thus, the Veteran suffers from residuals of a TBI and fulfills the current disability element of service connection. The Veteran's STRs show that in May 1979 she was involved in a car accident which resulted in a concussion. Hospital records show that the Veteran was brought to the emergency room in a comatose state and eventually regained consciousness. The Veteran was given an impression of cerebral contusion. Throughout the appeal period, the Veteran has consistently stated that she was a passenger in a motor vehicle accident, where she lost consciousness for a few hours. The Veteran suffered a traumatic injury to her head while in-service where she lost consciousness for a period of time, the Veteran suffered a TBI in-service. Regarding the issue of nexus, the April 2014 VA examiner concluded that it was less likely than not that the Veteran sustained lasting cognitive deficits from her motor vehicle accident in 1979. The examiner also stated that the evidence did not support a current diagnosis of a cognitive disorder, and that there was no significant and compelling information that the Veteran sustained lasting cognitive deficits, especially in light of two prior essentially normal neuropsychological evaluations. The examiner further noted that it is very difficult to ascribe symptoms thirty-five years after an injury and relative declines in certain cognitive domains cannot be ruled out. In contrast to the April 2014 VA examiner's conclusions, a private physician, R.E., M.D. provided a positive nexus opinion. The private physician provided a complete review of the Veteran's medical history. The physician reviewed the Veteran's accident, hospitalization, immediate symptoms after release from the hospital, along with her past medical history. The physician noted that post accident, the Veteran suffered from vision problems, depressive symptoms, mood swings, increased anger, sensitivity to loud sounds, bright lights, ringing in her ears, difficulty finding the right words when speaking, and problems with memory and concentration. In review of the Veteran's employment functioning, the physician stated that prior to the Veteran's TBI she was highly skilled, adaptable and capable of learning new information, but that since the injury, her cognitive functioning appears to be gradually declining over time, with worsened irritability and mood swings. In further review of the Veteran's recent occupational history, the Veteran reported that she felt she was unable to fulfill complex tasks anymore, and stated that she makes more mistakes which in turn exacerbates her depression. The Veteran reported a loss of confidence, and social isolation, and that she had to quit her job due to being overwhelmed. The physician asserted that the Veteran's long term effects of her TBI did not show up until many years after her initial trauma, which is not uncommon. The physician concluded that the Veteran suffered from many symptoms common to TBI and that she suffered from obvious cognitive problems. The physician noted that prior testing revealed cognitive deficits, and stated that the Veteran's cognitive deficits were getting worse with time. The physician stated that without a doubt, the Veteran suffered a moderate to severe TBI that directly caused at least moderate residual cognitive deficits. In weighing the opinions of record, the Board finds that the private opinion dated from January 2014 is of more probative weight than the VA April 2014 opinion. The Board finds the thoroughness of the private submission, and the detailed discussion of the Veteran's symptom progression of greater probative value. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the review of the claims file and thoroughness and detail of the opinion). Thus, the Veteran is entitled to service connection for the residuals of her TBI. ADD In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Both the April 2014 VA examination, and January 2014 private medical report failed to diagnose the Veteran with ADD. The January 2014 private report specifically noted that ADD medication was prescribed to the Veteran, but that she did not meet the criteria for a diagnosis of ADD or ADHD. Thus, the Board finds that the Veteran does not suffer from the specific cognitive impairment of ADD or ADHD. In addition to the medical evidence, the Board has also considered the Veteran's statements that she has the specific cognitive impairment of ADD. However, a chronic cognitive disorder such as ADD/ADHD is not a medical condition a lay person is competent to diagnose. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). The Veteran does not have the medical expertise to diagnose herself with a cognitive learning disability, nor does she have the medical expertise to provide an opinion regarding its etiology. Thus, her lay assertion that she has developed the specific disorder of ADD or ADHD due to her service lacks any probative value. Accordingly, service connection for ADD is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claims, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include cognitive learning disorder, and concussion residuals is granted. Entitlement to service connection for attention deficit disorder (ADD) is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs