Citation Nr: 1757529 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-41 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to entitlement to service connection for an acquired psychiatric disability, and if so, whether the reopened claim should be granted. 2. Entitlement to an initial rating in excess of 10 percent for headaches as a residual of traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Daniel Smith, Attorney ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active military service from January 1974 to April 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDINGS OF FACT 1. An unappealed September 2009 rating decision denied entitlement to service connection for an acquired psychiatric disorder, claimed as depression and posttraumatic stress disorder (PTSD). 2. The evidence associated with the claims file subsequent to the September 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of the evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. 3. An acquired psychiatric disability is not etiologically related to the Veteran's active service, and the Veteran does not have a psychosis. 4. The Veteran's residuals of in-service TBI are manifested by daily headaches. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. An acquired psychiatric disability was not incurred in or aggravated by active service, and a psychosis is not presumed to have been incurred in such service. 38 U.S.C. § 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for entitlement to an initial rating in excess of 10 percent for headaches as a residual of TBI have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen A September 2009 rating decision denied entitlement to service connection for an acquired psychiatric disability based on findings that the Veteran did not have a diagnosed acquired psychiatric disability that was related to his active service. The Veteran did not appeal that decision. The pertinent evidence that has been received since the September 2009 rating decision includes October 2010 private treatment records showing a diagnosis of depression and a January 2011 VA examination report diagnosing the Veteran with major depression, recurrent, in the form of a complicated bereavement or prolonged mourning without psychosis. The Board finds that the October 2010 private medical records and the January 2011 VA examination report are new and material. The Board notes that they are not cumulative or redundant of the evidence previously of record. Moreover, they raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for an acquired psychiatric disability is warranted. Entitlement to Service connection for an Acquired Psychiatric Disability The Veteran asserts that he has an acquired psychiatric disability as a result of his active service, to include as a result of the head injury incurred in active service. Specifically, the Veteran asserts that he has depression and memory loss that was caused by the in-service event that resulted in his service-connected left temple scar and posttraumatic headaches. Service treatment records (STRs) are silent for any complaint of, treatment for, or clinical diagnosis of any mental health issues during active service. The post-service VA and private medical evidence of record from 2007 to 2009 showed the Veteran denied having any history of anxiety or depression. Likewise, a September 2008 depression screening and PTSD screenings from July 2007 and January 2008 were also negative. VA substance abuse treatment program (SATP) notes show the Veteran had a long history of cocaine and heroin dependence issues and underwent continuous methadone treatment for opioid addiction throughout 2008 and 2009. A review of the record shows the Veteran attributed the majority of his challenges with depression and substance abuse to bereavement of his late wife who died in 2005. In support of his claim, the Veteran submitted an October 2010 medical opinion by a private physician, Dr. G.K., stating that his memory loss and depression were secondary to the head injury he sustained during active service. Dr. G.K. did not provide a rationale to substantiate his medical opinion. Without a sufficient rationale, the opinion provided by Dr. G.K. is not adequate to form the basis of a grant of entitlement to service connection. At a January 2011 VA examination, the Veteran reported that he was married for over 30 years when his wife passed away from a heart attack in 2005. Since then, he reported encountering significant problems dealing with his loss. The examiner diagnosed major depression, recurrent, in the form of a complicated bereavement or prolonged mourning without psychosis. The examiner further noted the Veteran's duration of symptoms had been constant since his wife passed away, and opined that the Veteran's psychiatric disability began as normal and predictable bereavement when a loved one dies, but had evolved into a major depression ever since. The examiner further found that the Veteran's depressive disability was not linked to his service-connected left temple scar. In this regard, the examiner noted that Veteran was vague in his report of an in-service head injury that resulted in a left temple scar. The Veteran could not present specific details, dates, or detailed accounts of the claimed event. The Veteran reported that while in active service in 1974 or 1975, he was hit in the head with an object requiring stitches. He was unsure whether he lost consciousness, but remembered being taken to the hospital, and reported that the severity of the injury was high. However, the examiner opined that any head injury that may have occurred in active service was mild in severity. The Veteran described his memory impairment as severe with moderate problems of attention and concentration, and with problems organizing, planning, and all type of executive function deficiencies that limited his ability to engage in leisure activities, such as coaching baseball. The examiner noted that cognitive screening on examination was negative. The examiner found that the Veteran's allegations of memory loss were not supported because of a lack of objective clinical findings. Indeed, the examiner opined that he could not find any psychopathology that was linked to service as the only current psychiatric diagnosis, major depression, was directly due to prolonged grieving of his wife's passing, and was not in any way linked to his active service. The January 2011 VA examination report is probative; the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationales for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007; Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, while the Veteran has submitted a contrary private opinion, no supporting rationale or objective findings were provided. As such, the VA opinion is the most probative of the evidence of record. Additionally, while the Veteran is competent to report symptoms such as depressed mood and memory impairment, he is not competent to provide a diagnosis of an acquired psychiatric disability or an opinion linking that diagnosis to his active service, or an opinion that his service-connected left temple scar caused or chronically worsened his acquired psychiatric disability, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis or an etiology opinion in this case. Further, there is no indication from the record that the Veteran has been diagnosed with a psychosis, let alone diagnosed with a psychosis within one year of his separation from active service. Therefore, presumptive service connection is not applicable in this case. In sum, the Veteran did not have mental health symptoms in service. The Veteran was not shown to have mental health symptoms following service until approximately 2005, at the earliest, which was 30 years following his separation from active service. The probative medical evidence of record shows that the Veteran's current psychiatric disability is a result of prolonged bereavement following the passing of his wife and not the result of his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for an acquired psychiatric disability is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an Initial Increased Rating for Headaches as a Residual of TBI The Veteran contends that his service-connected headaches as a residual of TBI are worse than contemplated by the currently assigned rating. At a January 2011 VA examination, the Veteran reported that he first started to experience headaches following a blow to the head while in active service. He reported that over the years, his headaches had gotten progressively worse. The Veteran reported that he now had trouble with headaches all the time, and that made him not want to do anything. He reported that his headaches for constant and that he treatment them with over-the-counter medication like Tylenol or Motrin. He reported that the headaches occurred mainly in the left frontal region. He reported that while light did bother him during a headache, the headaches were not prostrating and did not cause nausea or vomiting. The examiner diagnosed posttraumatic muscle-contraction headaches as a result of his in-service TBI. A review of the record shows that the Veteran receives periodic treatment for various disabilities at the VA Medical Center and from private providers. However, there is no indication from the record that the Veteran has reported symptoms of headaches to his treatment providers that are worse than those reported at his VA examination. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for his service-connected headaches. There is no indication from the evidence of record that the Veteran experiences characteristic prostrating attacks occurring on average once a month over the last several months. In fact, at his January 2011 VA examination, the Veteran specifically denied that his headaches were prostrating in nature. So, while the headaches may be frequent, they are not of sufficient severity to be considered prostrating. Therefore, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a rating in excess of 10 percent for headaches as a residual of TBI. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). The Board has considered a schedular rating under Diagnostic Code 8045 pertaining to residuals of TBI relating to cognitive, emotional/behavioral, and physical impairment. However, the January 2011 VA examiner found the only residuals of the Veteran's in-service TBI were headaches; therefore, consideration under a different diagnostic code would not be appropriate. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for an acquired psychiatric disability is granted. Entitlement to service connection for an acquired psychiatric disability is denied. Entitlement to an initial rating in excess of 10 percent for headaches as a residual of TBI is denied. ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs