Citation Nr: 1753541	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  12-22 698	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for a traumatic brain injury (TBI) residuals.  

2.  Entitlement to service connection for a post-operative left temporal organic brain disability to include angioma, cavernoma, and arteriovenous malformation (AVM) residuals.  

3.  Entitlement to service connection for a seizure disability.  

4.  Entitlement to service connection for a disability manifested by cognitive dysfunction.  

5.  Entitlement to service connection for a disability manifested by weight loss.  

6.  Entitlement to service connection for a skin disorder to include a rash.  

7.  Entitlement to service connection for a disability manifested by fatigue.  

8.  Entitlement to service connection for Gulf War syndrome.  

WITNESSES AT HEARING ON APPEAL

Appellant and Sister


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel


INTRODUCTION

The Veteran had active service from September 1990 to September 1994.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the San Diego, California, Regional Office of the Department of Veterans Affairs (VA) which denied service connection for a left temporal angioma, seizures, cognitive dysfunction, weight loss, a rash, fatigue, and Gulf War syndrome.  In July 2009, the Albuquerque, New Mexico, Regional Office denied service connection for "status post craniotomy arteriovenous malformation."  In June 2012, the New York, New York, Regional Office (RO) recharacterized the issue as entitlement to service connection for "status post craniotomy arteriovenous malformation" as service connection for TBI residuals and denied the claim.  The Veteran appeared at an April 2017 hearing before the undersigned Veterans Law Judge at the RO.  A hearing transcript is of record.  


FINDING OF FACT

TBI residuals manifested during active service.



CONCLUSION OF LAW

The criteria for service connection for TBI residuals are met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that service connection for recurrent TBI residuals is warranted as he sustained a concussion when he was struck in the head by a ship's door during active service and was subsequently diagnosed with TBI residuals by VA and private physicians.  

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012).   

The service medical records show that the Veteran sustained a head trauma.  A January 1994 treatment record states that the Veteran sustained a blunt head trauma to the left occipital region "when the dogging handle to the inboard side of the door came loose and dropped on his head."  He reported that he blacked out for a few seconds and then went to sick bay.  An assessment of "status post blunt trauma to the left occipital region with mild vertigo" was made.  

The report of a July 2009 VA TBI examination states that the Veteran was diagnosed with TBI residuals secondary to the in-service blunt head trauma/concussion.  A January 2010 evaluation from P. Walsky, M.D., clarifies that the Veteran's in-service head trauma was "qualified by medical records as a full-fledged concussion."  VA clinical documentation dated in 2010 and 2011 shows that the Veteran was diagnosed with recurrent TBI residuals.  

The Veteran sustained a documented in-service left occipital area blunt force trauma/concussion.  He has been diagnosed following service separation with TBI residuals.  Therefore, the Board finds that service connection for TBI residuals is warranted.  
ORDER

Entitlement to service connection for TBI residuals is granted.  


REMAND

The Veteran contends that service connection for a post-operative left temporal organic brain disability is warranted as the congenital brain malformation increased in severity or otherwise became symptomatic as the result of the in-service left occipital region blunt trauma or the service-connected TBI residuals.  

The presumption of soundness does not apply to congenital defects because those defects are not diseases or injuries within the meaning of 38 U.S.C. §§ 1110, 1111 (2012) and 38 C.F.R. § .303(c) (2017).  Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry v. Principi, 340 F.3d 1378 (Fed. Cir.2003).  Nevertheless, a congenital defect can still be subject to superimposed disease or injury.  VAOPGCPREC 82-90.  If a superimposed disease or injury occurs during service, service connection may be warranted for the resulting disability.  

The Board observes that the clinical record is in conflict as to the nature of the left temporal organic brain disability and its relationship to active service including the documented in-service left occipital region blunt head trauma.  A May 1999 VA magnetic resonance imaging study of the brain made findings consistent with a cavernoma in the posteroinferior left temporal lobe.  A May 2008 VA magnetic resonance imaging study of the brain states that the Veteran was diagnosed with a cavernoma and subsequently underwent a 1999 left temporo-occipital craniotomy.  A November 2008 VA neurological evaluation shows that the Veteran had a history of a left temporal AVM removal.  

The July 2009 VA TBI examination report states that the Veteran was diagnosed with a congenital temporal lobe AVM in 1998 and underwent surgical resection of the AVM in 1999.  The Veteran was diagnosed with brain dysfunction secondary to AVM bleed and associated craniotomy.  The examiner noted that both "the TBI and AVM were in the left hemisphere of the brain."  The examiner commented that as to the "question is a possible role of TBI sustained during military service in causing or exacerbating AVM bleed, it is beyond the scope of this examination to determine if this is or is not the case" and "his subjective report suggests some persistent impact of the injury, but based on records and current testing, it is not possible to determine if this is the case without resorting to speculation."  The Board observes that the phrase "without resort to speculation" should indicate the limitations of knowledge in the medical community at large and not those of a particular examiner."  Jones v. Shinseki, 23 Vet. App. 382 (2010).  The opinion in the July 2009 VA examination report expresses the examiner's limitations.  

A January 2010 evaluation from Dr. Walsky states that "it is conceivable that the head trauma, which qualified by medical records as a full-fledged concussion, could have caused bleeding within the AVM and some undetermined cascade of pathological changes within the lesion."  The doctor clarified that "this is a supposition but within the realm of possibility."  

A February 2012 VA neurological evaluation shows that "the Veteran's temporal cavernoma that required craniotomy for removal was not caused by or a result of the blunt trauma that the Veteran sustained while serving in the military" and "the cavernoma (which is vascular malformation and is a congenital condition) would not have been caused by a door handle falling on the occipital area of this Veteran's head."  The examiner did not address Dr. Walsky's 2010 evaluation or the impact of the documented left hemisphere blunt trauma upon the AVM/cavernoma.  Absent such a discussion, the Board finds that the VA neurological evaluation is of limited probative value.  

VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  When VA obtains an evaluation, the evaluation must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Because of the multiple diagnoses and the cited deficiencies of the examination reports of record, the Board finds that further VA neurological evaluation is necessary.  

The Veteran asserts that service connection for seizures, cognitive dysfunction, weight loss, fatigue, skin rashes, and Gulf War syndrome is warranted secondary to in-service blunt head trauma, service-connected TBI residuals, or service aboard a naval ship during the Gulf War. 

Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2017).  Service connection shall be granted on a secondary basis where it is demonstrated that a service-connected disability has aggravated a nonservice-connected disability.  38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995).  Service connection has been established for posttraumatic stress disorder (PTSD) rated as 100 percent disabling and recurrent TBI residuals.  

The VA clinical documentation of record shows that a seizure disability, cognitive dysfunction, weight loss, fatigue, and skin rashes have been variously attributed to the TBI residuals, the post-operative left temporal organic brain disability, and the medications prescribed for treatment of those disabilities.  

The Veteran has not been provided a VA examination which addresses the relationship, if any, between the claimed seizure, cognitive dysfunction, weight loss, fatigue, skin, and Gulf War syndrome disabilities and the service-connected disabilities.  The Board notes further that the issues of service connection for the claimed disabilities are inextricably intertwined with the issue of service connection for a post-operative left temporal organic brain disability.   

Clinical documentation dated after April 2016 is not of record.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims.  Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he provide information as to all post-service treatment of any post-operative left temporal organic brain mass, seizure, cognitive dysfunction, weight loss, fatigue, skin disability, and Gulf War syndrome disabilities after April 2016, including the names and addresses of all health care providers whose records have not already been provided to VA.  Upon receipt of the requested information and appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record.  If identified records are not obtained, then notify the Veteran.  38 C.F.R. § 3.159(e) (2017).  

2.  Associate with the record any VA medical records not already of record of treatment of the Veteran including for treatment provided after April 2016.   

3.  Schedule the Veteran for a VA neurological examination to assist in determining the nature and etiology of a post-operative left temporal organic brain mass, seizure disorder, cognitive dysfunction, weight loss, and fatigue.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:

(a)  Identify the nature of the post-operative left temporal organic brain disability.  The examiner should specifically whether the Veteran had an angioma, a cavernoma, or an AVM.  

(b)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left temporal organic brain disability had its onset during active service or is related to any incident of service including the documented left occipital region blunt head trauma.  

(c)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left temporal organic brain disability is due to or the result of the recurrent TBI residuals or other service-connected disabilities.  

(d)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified left temporal organic brain disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the TBI residuals or other service-connected disabilities.  

(e)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified seizure disability had its onset during active service or is related to any incident of service including the documented left occipital region blunt head trauma.  

(f)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified seizure disability is due to or the result of the TBI residuals or other service-connected disabilities.  

(g)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified seizure disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the TBI residuals or other service-connected disabilities.  

(h)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified cognitive dysfunction, weight loss, or fatigue-related disability had its onset during active service or is related to any incident of service including the documented left occipital region blunt head trauma.  

(i)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified cognitive dysfunction, weight loss, or fatigue disability is due to or the result of the TBI residuals, the other service-connected disabilities, or any medication prescribed in treatment of the service-connected disabilities.  

4.  Schedule the Veteran for a VA skin examination to assist in determining the nature and etiology of the claimed skin disability.  The examiner must review the record and should note that review in the report.  A rationale for all opinions should be provided.  The examiner should:

(a)  Diagnose all skin disabilities found.  

(b)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified skin disability had its onset during active service or is related to any incident of service.  

(c)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified skin disability is due to or the result of the TBI residuals, the other service-connected disabilities, or any medication prescribed in treatment of the service-connected disabilities.  

(d)  Opine whether it is at least as likely as not (50 percent probability or greater) that any identified skin disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by the TBI residuals, the other service-connected disabilities, or any medication prescribed in treatment of the service-connected disabilities?  

5.  Then readjudicate the claims on appeal.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then return the case to the Board.  

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).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or 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. §§ 5109B, 7112 (2012).  



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs