Citation Nr: 1637363 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 11-25 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of heat stroke. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1971 to October 1972, from October 2001 to October 2002, and from May 2007 to March 2009, with additional Army National Guard service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision from the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT A chronic disability manifested as a result of residuals of heat stroke is reasonably shown to have been incurred due to injury in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, service connection for residuals of heat stroke is warranted. 38 U.S.C.A. 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 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 appellant 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, with an emphasis on the evidence that is 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. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Factual Background The Veteran's service records include a January 2008 statement of medical examination and duty status indicating that he was mobilized in June 2007, and he was seen in October 2007 for heat stroke while he was in Kuwait; the injury was determined to have been incurred in the line of duty but was not likely to result in a claim against the government for future medical care. The STRs reflect that he was working for 30 minutes outside, fell backwards, was unconscious for approximately one minute, and hit the back of his head on the ground/gravel. He reported that he did not have any bump, bruise or pain in any specific part of the skull on awakening and could not confirm a head injury. He was taken to an air-conditioned bus and then to his room, reporting a headache and generalized weakness. He was taken off work for probable heat-related illness. On treatment, it was noted that he had slowing of rate of thought, difficulty with concentrating and calculating, and subjective short term memory deficits, status post syncope and possible closed head injury and/or heat stroke. A head CT scan was negative from a traumatic standpoint. MRI results showed numerous nonspecific white matter changes in the bilateral cerebral hemispheres which were noted not to have the appearance on gradient echo or diffusion weighted sequences to suggest recent injury; the impression was that these were most likely representative of chronic changes rather than recent white matter injury. No abnormal mass or mass-effect was otherwise seen, and the ventricles were within normal limits for his age. In late October 2007, the Veteran was seen for headaches and general pain; he reported "not feeling the same as before" with poor memory, decreased concentration and inability to organize things. The impressions included transient episode of altered awareness, and headaches and cognitive symptoms. The treating provider noted that multiple notes since the injury had listed diagnoses such as "heat syncope" and "heat stroke" but there was no documented record of an elevated body temperature, and heat stroke is a very specific diagnosis with specific criteria, the core of which is elevated body temperature. The provider noted that, in the absence of this data, the best that could be said was that the Veteran reportedly had a witnessed change in level of consciousness that was transient and he felt poorly afterward; the ambient heat had led to a possible explanation of heat exhaustion/syncope or heat stroke. The provider also noted that the Veteran reported the headaches and cognitive difficulties arose after the October 2007 event, but there was a prior history of headaches, alcohol use, and behavioral health difficulties, with psychomotor slowing documented, all pre-dating the deployment to Kuwait. It was also noted that the Veteran's interview, history, and examination suggested an individual of average or below-average intellectual development with possible passive-aggressive traits; the provider suggested that with this prior history, the potential for secondary gain with injury (return from theater), and the unclear history of the event itself, a behavioral etiology/basis for the reported symptoms should be considered and perhaps be placed first on the differential diagnosis. The treatment provider recommended evaluation for an underlying Axis II condition through behavioral health in addition to EEG and cardiac evaluation to evaluate for causes of altered levels of awareness. Finally, the treating provider opined that if a head injury was sustained with the fall, it was mild in degree, causing no evidence of injury to the scalp/skull that the Veteran noticed, with only a brief period of possible alteration in consciousness; the provider opined that these characteristics classify the injury, of which there are very limited details, as mild in degree, and sequelae of these types of mild injuries are typically mild and self-limited. On May 2008 neuropsychological evaluation, the Veteran was referred in order to determine the nature and extent of his cognitive difficulties after suffering a heat injury and possible concussion. The examining clinical neuropsychologist noted the history of an October 2007 loss of consciousness while working in extreme heat (black flag conditions) and the subsequent assessments and treatment described above. Following mental status examination and a battery of tests, the diagnoses included adjustment disorder with depressed mood, and cognitive disorder not otherwise specified (mild attentional deficits; slow information processing; deficits in set maintenance and cognitive flexibility; decreased self-monitoring, recall, problem solving and analysis on a verbal task; and mild deficits in complex visual memory). The examiner stated that documentation of an internal body temperature of 106 degrees or more is used to determine if heat stroke occurred, and immediate medical care is required to reduce internal damage; in the Veteran's case, this determination was never made and, according to his report, he received sub-optimal medical attention. The examiner opined that it seems less likely that the Veteran suffered a concussion, and more than likely that his diffuse cognitive difficulties are the result of a heat exposure and most likely the result of a heat stroke. The examiner opined that, compared to previous assessments, the Veteran appeared to be recovering cognitively though he continued to show deficits in attention, slow information processing, set maintenance and cognitive flexibility. The examiner opined that, in time, the Veteran should recover more and be able to function more efficiently especially in completing over learned tasks, though it may be several years before he would be able to restore heat tolerance to pre-morbid levels. On September 2008 Medical Evaluation Board proceedings, the diagnoses included heat injury syncope with residual heat intolerance (<75 degrees), fatigue, lethargy, and cognitive dysfunction; posttraumatic (syncope and trauma, with possible concussion syndrome) chronic migraine headaches; and cognitive disorder not otherwise specified, post heat trauma and syncope, with diffuse microvascular white matter disease, ischemic or hypertensive, all of which were determined to have been incurred in 2007 during active duty and were medically unacceptable. In Physical Evaluation Board proceedings, the Veteran was noted to have had a heat injury in Kuwait and fell, striking his head, and his cognitive deficits had existed since then; although improving, they continued to interfere with the performance of his duties and in many aspects of his daily life. His testing showed impairments in attention, slowed information processing, cognitive flexibility, self-monitoring, recall and problem solving. His commander noted that he was unable to remember work-like procedures and instructions, he had difficulty with focus and required constant reminders, he had to write down instructions, he could not make work-like decisions, and he had difficulty with safety issues as exemplified when he was burned by a radiator's hot water because he could not remember if it was hot or cold. Based on a review of the objective medical evidence of record, the findings of the Physical Evaluation Board were that the Veteran's medical and physical impairment prevented reasonable performance of duties required by grade and military specialty. He was found not to meet the retention standards due to cognitive disorder. On March 2009 VA mental health examination, the Veteran reported experiencing a heat stroke in September 2007; he remembered going out to work in Kuwait in "a metal box", and he remembered putting boxes on a forklift and unloading them. He reported that he was found on the ground and woken up, indicating that he had passed out and hit his head; he was unsure the length of his loss of consciousness. He reported that he was given rest and IV fluids. He reported that, the next day, he became sick again and went to sick call where he was given IV fluids and bed rest, and he was medivacked out after 72 hours. He reported that he went to appointments for about a week and was then sent to Georgia, and he went to wounded warrior treatment for the next year. The examiner noted that the STRs indicate diagnoses of adjustment disorder and major depression. The Veteran reported depression which he largely attributed to abdominal pain, and anxiety about daily life events. He reported that his attitude and mood had changed since the heat stroke incident, stating that he felt more anxious and depressed, and he had difficulty remembering directions and intended activities. The anxiety/depression was considered chronic, mild/moderate, and ongoing since the heat stroke, exacerbating with abdominal problems. Following a mental status examination, the diagnosis was anxiety disorder not otherwise specified. The March 2009 VA examiner noted that neuropsychological testing conducted in November 2007 indicated that the Veteran had "largely returned to his normal level of cognitive functioning since the heat-related injury." The report noted problems with effort/motivation on the part of the Veteran. The examiner also noted that May 2008 neuropsychological testing noted a diagnosis of adjustment disorder with depressed mood and cognitive disorder not otherwise specified. The examiner opined that cognitive disorder diagnoses could not be made on the basis of the current examination and, due to inconsistencies in the previous reported neuropsychological test results, diagnosis was deferred for neuropsychological testing. Regarding anxiety and depressive symptoms, the examiner stated that these were accounted for by the diagnosis of anxiety disorder not otherwise specified; the Veteran's claimed sleep disorder could be partially accounted for by anxiety/depressive symptoms yet the examiner stated that medical etiologies could not be ruled out. On April 2009 VA traumatic brain injury (TBI) examination, the examiner noted the Veteran's history of being outside in the heat in Kuwait for 30 minutes, having syncope and falling back and hitting his head on gravel; he was observed as unconscious for about one minute, sent to medical treatment, evaluated, hydrated, and sent back from deployment. The examiner noted the diagnosis of heat stroke/syncopal episode/concussion/post concussion syndrome, and that an MRI performed at Martin Army hospital found no evidence of acute intracranial pathology, typical periventricular and deep white matter changes consistent with chronic microvascular ischemia. The examiner noted the severity of the initial injury to be mild. On examination, the Veteran reported confusion, memory problems, and headaches. He reported dizziness or vertigo two to three times per day, constant headaches, nearly falling when standing after sitting with some falls, easily fatiguing, moderate memory impairment, and mood swings with anxiety and depression. Despite the complaint of mild memory loss, attention, concentration, or executive functions, there was no objective evidence of these on testing. Following physical examination, the examiner found there was insufficient evidence to warrant an acute diagnosis at that time, and there were no acute findings to warrant diagnosis for TBI. On January 2011 VA treatment, the Veteran was noted to have a history of brain injury as the result of heat stroke and returned for treatment of depressive symptoms. He reported feeling depressed most of the time, lacking motivation, having trouble concentration, and being forgetful with anergia. He reported that his memory trouble made it difficult for him to get things done; however, he slept well, had good appetite, was not suicidal or hopeless, and spent his days "piddling around" his farm and working on vehicles. The impressions included depressive disorder not otherwise specified and cognitive disorder secondary to heat stroke. On May 2011 VA general medical examination, the Veteran reported a history of right side paresthesias since having heat stroke, as well as memory loss, depression, anxiety, and sleep impairment. On neurologic exam, coordination, orientation, memory, and speech were normal. Cranial nerve function was normal bilaterally, and sensory and motor exam findings were normal. On psychiatric exam, affect, mood, and judgment were normal, behavior was appropriate, and comprehension of commands was normal. A March 2011 head CT scan was within normal limits. On May 2011 VA mental disorders examination, the examiner noted a May 2010 neuropsychological assessment report that the Veteran was functioning within the borderline range of intellectual functioning, which represented further decline in intellectual function over the previous year, and measures of effort were mixed suggesting that there could not be complete confidence in the results; diagnoses included cognitive disorder not otherwise specified, pain disorder, depressive disorder, irritability, emotional lability, and demoralization and apathy. On current examination, the examiner opined that the Veteran was moderately to severely impaired by physical, emotional and cognitive limitations. The Veteran reported feeling depressed and feeling bad physically all the time, with anhedonia, loss of interest, feelings of worthlessness, irritability, nervousness, and poor energy. Following a mental status examination, the diagnoses included cognitive disorder not otherwise specified, major depressive disorder, and anxiety disorder not otherwise specified. The examiner opined that the disorders have all been comorbid since the time of in-service heat stroke/TBI. Analysis The Veteran contends, in essence, that he experienced heat stroke while he was stationed in Kuwait and has experienced disabling residuals of the heat stroke every since that time. It is not in dispute that the Veteran has a current cognitive disorder. Therefore, the first element of service connection, a current disability, is established. It is also not in dispute that, during his active duty service, he incurred a heat-related injury with loss of consciousness and striking his head on the ground. Therefore, the second element of service connection, an in-service event or injury, is also established. Finally, competent medical evidence relates his current cognitive disorder to the events in service. The September 2008 Physical Evaluation Board found that the Veteran had a cognitive disorder and that his medical and physical impairment prevented reasonable performance of mitary duties. The May 2011 VA examiner opined that the Veteran's cognitive disorder (not otherwise specified), major depressive disorder, and anxiety disorder (not otherwise specified), have all been comorbid since the time of his in-service heat stroke/TBI. The examiner's opinion supports a finding of in-service incurrence and a causal connection between the Veteran's current disability and his military service. Accordingly, the third element of service connection, a causal link between the current condition and military service, is also established. Resolving reasonable doubt in the Veteran's favor (as required, see 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the Board finds that the evidence reasonably shows that the Veteran has a current chronic disability as residuals of heat stroke that was incurred in service. See 38 C.F.R. § 3.303(a). All of the requirements for establishing service connection are met; service connection for residuals of heat stroke is warranted. ORDER Service connection for residuals of heat stroke is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs