Citation Nr: 1748522 Decision Date: 10/27/17 Archive Date: 11/03/17 DOCKET NO. 10-07 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of a head injury/traumatic brain injury (TBI). 2. Entitlement to a compensable disability rating for residuals of a fracture of the fourth metacarpal of the left hand. 3. Entitlement to a disability rating in excess of 10 percent for residuals of a left wrist ganglionectomy. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1978 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. During the pendency of the appeal, an August 2014 rating decision increased the Veteran's disability rating for his residuals of a left wrist ganglionectomy from noncompensable to 10 percent. When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran and his spouse testified at a hearing in August 2013 before the undersigned. A copy of the transcript has been associated with the electronic claims file. At the time this matter was before the Board in July 2015, the issues of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder; entitlement to a compensable disability rating for residuals of a gunshot wound to the left leg; and entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities were also listed on the title page of the decision. In an August 2015 rating determination, the RO granted service connection for erectile dysfunction and assigned a non-compensable disability evaluation. The RO also granted special monthly compensation for loss of use of a creative organ at that time. In a December 2015 rating determination, the RO granted a TDIU. These are grants of the full benefits sought, and, as such, no further action will be taken with regard to these claims. In conjunction with the July 2015 Board remand, the RO also issued a statement of the case on the issue of entitlement to a compensable disability rating for residuals of a gunshot wound to the left leg. The Veteran has not perfected his appeal on this issue and the Board will not discuss this issue in this decision. The issues of entitlement to a compensable disability rating for residuals of a fracture of the fourth metacarpal of the left hand and entitlement to a disability rating in excess of 10 percent for residuals of a left wrist ganglionectomy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center in Washington, DC. FINDING OF FACT Current residuals of a head injury/TBI have not been demonstrated. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury/TBI have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of 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). In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d. 372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). At the outset, the Board notes that service connection is currently in effect for post-traumatic headaches resulting from the same incident which the Veteran claims serves as the basis for his residuals of a head injury/TBI. The Veteran maintains that he currently has residuals of a TBI as a result of being hit in the head while in service. Service treatment records reveal that the Veteran sustained an injury to the left occipital region in November 1980 that required sutures being placed in the occipital and frontal regions. The sutures were removed in December 1980. There were no further findings or complaints of head injuries in service. At the time of the Veteran's July 1983 service separation examination, normal findings were reported of the head, face, neck, and scalp. Normal neurological findings were also reported. In the notes section of the report, there were no notations or findings related to the head/scalp. The Board does note that the Veteran checked the "yes" box when asked if he had or had ever had a head injury in service. However, in the notes section, there were no other notations other than that the Veteran had received sutures in his scalp. On his initial VA application for compensation, the Veteran did not mention any residuals of a head injury. There were also no notations or findings of a head injury at the time of a September 1983 VA examination performed in conjunction with other claims for service connection. An August 2011 CT scan of the head revealed a normal brain examination. In conjunction with his claim, the Veteran was afforded a VA examination in February 2013. The examiner noted that there was at least one event that may have placed him at risk for a traumatic brain injury. He noted that the Veteran stated that while he was at Fort Riley in Kansas he got into a physical altercation in 1980. He stated that in 1980 he was involved in a physical altercation which involved being hit with a belt buckle, which led to several lacerations on his head. The Veteran did not recall if there was any loss of consciousness, however, he did say he felt dazed and confused for hours after the event. He was ultimately brought to the emergency room and ended up with a fractured left hand. He also said he was "bloodied up in the scalp". Minutes to hours after the altercation, the Veteran stated that he continued to feel dazed and confused but his symptoms of being dazed and confused shortly resolved after this period. Days to months after the event it was difficult for the Veteran to determine whether or not he had experienced anything directly from the physical altercation. In other words, he was unable to determine whether or not cognitive and/or physical symptoms were the result of his physical altercation. The Veteran, during his history, stated that he had been a polysubstance abuser, mainly abusing heroin and Codeine for several decades. The examiner stated that the while Veteran indicated that he experienced some forgetfulness and some headaches, he stated that he could not determine whether or not this came directly from the head injury. The Veteran attributed some of his headaches and memory loss to his heroin use that it was difficult for him to quantify. Following examination of the Veteran and review of the record, the examiner indicated that it was his opinion that the incident described by the Veteran was unlikely to have caused a traumatic brain injury. He indicated that the Veteran stated that he got into a physical altercation in which he was hit with a belt buckle which led to laceration over this head and scalp. He did have some difficulty maintaining his ability to work through the decades, however, he did admit that most of this was likely due to his polysubstance abuse, mainly the heroin. Post-service treatment records contain no diagnoses of residuals of traumatic brain injury. After reviewing all the evidence both lay and medical, service connection for residuals of head injury/TBI is not warranted. Although the Veteran was found to have sustained a head injury in service, there were no traumatic brain injury residuals resulting from the inservice injury. Congress, as a general rule, limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1110, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability). Simply put, the general rule is that in the absence of proof of present disability there can be no valid claim. Based on the above, to the extent that the medical evidence addresses whether the Veteran has residuals of a head injury/TBI, it indicates that he does not. The Veteran is competent to report his current symptoms, but his reports must be weighed against the medical evidence of record. See Grover v. West, 12 Vet. App. 109, 112 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has a residuals of a head injury/TBI, the medical evidence showing an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. Moreover, as the question of causation extends beyond an immediately observable cause-and-effect relationship he is not competent to render a diagnosis or address etiology in the present case. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran currently has residuals of a head injury/TBI, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Consequently, his statements, without some form of objective medical corroboration, are not probative. The weight of the evidence is against a finding that the Veteran currently has residuals of a head injury/TBI. A necessary element for establishing service connection-evidence of a current disability-has not been shown. For the foregoing reasons, the claim for service connection for residuals of a head injury/TBI is 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, that doctrine is not applicable. ORDER Service connection for residuals of a head injury/TBI is denied. REMAND Regarding the claims for increased ratings for left wrist ganglionectomy and residuals of a fracture of the fourth metacarpal of the left hand, in Correia v. McDonald, 28 Vet. App. 158 (2016) the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible when assessing joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. The October 2016 VA examination reports do not comply with Correia. Accordingly, another examination to address the Correia deficiencies is necessary. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. After the development requested above has been completed, schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected residuals of a left wrist ganglionectomy and residuals of a fracture of the left 4th metacarpal, to include any functional effects. The Veteran's claims file should be made available to and be reviewed by the examiner, and he or she must indicate whether such review was accomplished. The examiner should determine the range of motion of the Veteran's left wrist and left 4th metacarpal in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. The VA examiner should state whether either the left wrist or left 4th metacarpal can be considered a "weight-bearing joint" for purposes of range of motion testing of the joint. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 3. Then readjudicate the Veteran's remaining claims in light of this and all other additional evidence. If any claim continues to be denied, send him an SSOC and, after he has had an opportunity to respond to it, return the file 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs