Citation Nr: 1759988 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 13-14 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected low back pain syndrome. 2. Whether new and material evidence has been received sufficient to reopen the issue of entitlement to service connection for a seizure disorder; and if so, whether service connection is warranted. 3. Entitlement to service connection for a left knee disability, including as secondary to the service-connected low back disability. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for traumatic brain injury. 6. Entitlement to service connection for an acquired psychiatric disorder. 7. Entitlement to service connection for bilateral hip disability, including as secondary to the service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from July 1982 to December 1982. She also had additional periods of active duty for training and inactive duty for training (INACDUTRA) prior to her discharge from the United States Army Reserves ("reserves") in March 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2010 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2016, the Veteran presented testimonial evidence at a video hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issues of entitlement a disability rating in excess of 20 percent for service-connected low back pain syndrome and entitlement to service connection for a hip disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a February 2003 decision, the Board denied the Veteran's claim for service connection for a seizure disorder; unappealed Board decisions are final. 2. Evidence associated with the claims file since the February 2003 denial is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a seizure disorder. 3. The Veteran's seizure disorder is a pre-existing congenital disease which did not arise during ACDUTRA and was not aggravated by an injury incurred during a period of ACDUTRA or INACDUTRA. 4. The Veteran's current left knee disability is neither the result of an injury or disease incurred or aggravated during a period of ACDUTRA, nor the result of an injury incurred or aggravated during a period of INACDUTRA; the left knee disability is not caused or aggravated by the Veteran's service-connected low back disability. 5. The Veteran's diagnosed hypertension has not been shown to have arisen or resulted from an injury incurred or aggravated during a period of ACDUTRA or to have been caused or caused or aggravated by injury from a period of INACDUTRA. 6. The Veteran has not been shown to have a traumatic brain injury. 7. The Veteran's unspecified depressive disorder with anxious distress has not been shown to be causally related to any period of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. The February 2003 Board decision denying the Veteran's claim for service connection for PTSD is final. 38 U.S.C. §§ 7103, 7104(b) (2000); 38 C.F.R. § 20.1100 (2006). 2. As evidence pertinent to the claim for service connection for a seizure disorder received since the Board's February 2003 denial is new and material, the criteria for reopening the claim for service connection for a seizure disorder are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a seizure disorder have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 4. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 5. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). 6. The criteria for entitlement to service connection for traumatic brain injury have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim to Reopen the Issue of Entitlement to Service Connection for Seizure Disorder Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran seeks to establish service connection for a seizure disorder, which she asserts was caused or aggravated by her military service. The Board previously denied the Veteran's claim for service connection for a seizure disorder in February 2003, and the Veteran did not appeal the denial to the United States Court of Appeals for Veterans Claims (the Court). Unappealed Board decisions are final. 38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1100. The basis of the Board's prior denial was that the record did not establish that the Veteran's seizure disorder was incurred, caused, or aggravated during a ACDUTRA or INACDUTRA. In support of her claim to reopen the issue of entitlement to service connection for a seizure disorder, the Veteran asserted that her seizure disorder was related to a traumatic brain injury she suffered from being hit by a car during basic training (a period of ACDUTRA). She also asserted that one of her doctors told her that her seizures were related to this event. This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. As noted above, the credibility of the evidence is also presumed. Therefore it is found to be new and material, and reopening the claim for service connection for a seizure disorder is warranted. II. Claims of Entitlement to Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also 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 defined by statute and regulation, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24) (2012); 38 C.F.R. § 3.6(a), (d) (2017). ACDUTRA includes full-time duty performed for training purposes by members of the Reserves or National Guard of any state. 38 U.S.C. §§ 101(22), 316, 502, 503, 504, 505 (2012); 38 C.F.R. § 3.6(c)(3) (2017). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106 (2012). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C.A. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Evidence must show that the Veteran has the disability for which benefits are being claimed. See 38 C.F.R. § 3.303. The requirement of a current disability is satisfied if the claimant has the disability at some point during the pendency of the claim, even if it should resolve prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Indeed, even when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he or she is an interested party, the claimant's interest may affect the credibility of his or her testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the claims file. The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A. Seizure Disorder The Board acknowledges that the usual procedure upon reopening an issue is to remand it to the AOJ for initial consideration. However, as the RO reconsidered the underlying claim on the merits in its adjudication in the August 2017 Supplemental Statement of the Case, the Board may address the merits of the case at this time. The Veteran asserts that she suffers from a seizure disorder that first manifested during military service. At the January 2016 Board hearing, she testified that her first grand mal seizure occurred in 1985 and that she had one seizure during a Physical Training (PT) run on active duty and another during training which caused her to run a red light and resulted in a multi-car accident. She also described getting hit by a car following a PT run in basic training in 1982 and falling to the ground and hitting her head on cement, and stated that one doctor told her that this event caused her seizure disorder. Service Treatment Records (STRs) from the Veteran's reserve service are of record, and document that in October 1982, during active training, she was struck in the back by a car as she was bent forward tying her shoes, resulting in lumbar pain, particularly on the left. There is no mention of a head injury. Private neurologist records form November 1988 note that the Veteran had a seizure disorder which started in 1986, and that her past medical history was otherwise noncontributory. The STRs document additional episodes of loss of consciousness and duty restrictions due to her seizure disorder, including her reported May 1994 motor vehicle accident at Fort Bragg when she was involved in a multi-car accident when she had a seizure and drove through a red light. The Veteran was provided with a VA examination pertaining to her seizure disorder in December 2016. It was noted that she was diagnosed with a seizure disorder in 1986, and the examination report documented the Veteran's reports of the frequency and symptoms associated with her major (grand mal) and minor (staring spells) seizures. The examiner also noted the Veteran's report of being struck by a car during basic training in 1982. Because no opinion was provided, a supplemental opinion was obtained in April 2017. The examiner stated that it is less likely as not that the Veteran's seizures occurred initially during a period of active service and found that the seizures were less likely as not due to any event or injury in service, to include the October 1982 incident. She reasoned that neurological examination from December 2016 noted that it was more likely than not that the Veteran did not suffer from a traumatic brain injury during service, and there was no record of either acute symptoms or evaluations pertaining to impaired cognitive or other potentially TBI-related functioning in the STRs. She noted that while the STRs did show that the seizures first began while the Veteran was serving in the reserves, there is nothing to indicate that the disorder first arose during a period of active service. Further, she noted that the C&P neurologist had assessed a seizure disorder typical of juvenile myoclonic epilepsy, which is genetic in origin and frequently begins in adulthood, characterized by seizures and absence spells like those reported by the Veteran. The examiner further commented that the Veteran had displayed typical EEG findings for the disorder (presumably TBI) noted only once despite a number of EEGs having been completed over the appeal period. When considering the evidence of record under the applicable laws and regulations, the Board finds that the weight of the evidence is against the Veteran's claim for entitlement to service-connection of a seizure disorder. The Veteran is found to have a current seizure disorder, thus meeting the first criterion needed for service connection. However, a preponderance of the evidence demonstrates that while the seizure arose during reserve service, it did not first manifest during a period of ACDUTRA and was not related to a disease or injury from a period of ACDUTRA or to an injury from a period of INACDUTRA. In so finding, the Board places significant weight on the documentation of seizures in the STRs, as well as the Veteran's and her family member's reports that she suffered her first seizure in 1985 or 1986. The Veteran has not asserted and the record does not otherwise indicate that the seizure disorder first arose during a period of ACDUTRA. While the evidence demonstrates that the Veteran experienced at least one seizure during a later period of ACDUTRA in May 1994, service connection based on such a period requires that the disease arose during or is related to an injury incurred during such service. There is also no indication that the Veteran's pre-existing congenital seizure disorder was permanently aggravated beyond its general course by the May 1994 motor vehicle accident, as there is no evidence of an increase of seizure symptoms from that time forward in the STRs. Rather, a February 1995 neurological note records that the Veteran had not had any seizures since the May 1994 accident, approximately 9 months prior. The Board has also considered the Veteran's assertions that her seizure disorder was caused by her reported head injury when she was hit by a car during her initial period of ACDUTRA in 1982, and that a doctor told her as much. The Board notes, however, that this doctor's report is not documented in any medical records in the claims file, and the Veteran has at various times during the appeal period attributed this statement to a doctor at Fort Bragg as well as to a doctor at a VA facility. Even assuming that the differing attributions were a mistake, the probative value of this doctor's reported statement is significantly limited by the fact that the Board has no way of knowing on what evidence such conclusion was based. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning and that it must be clear that the medical expert applied valid medical analysis to the significant facts of a particular case); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion"). As will be discussed in greater detail below, however, the Board finds more persuasive the lack of any mention in the STRs of a head trauma or wound, the Veteran's initial report in an October 2003 claim for a TDIU that she was not sure if she hit her head or not during the 1982 incident, and the VA neurological examiner's conclusions that the Veteran's seizure disorder is genetic/congenital in nature and is more in line with Juvenile Myoclonic epilepsy which frequently begins in adolescence or young adulthood and was less likely as not related to any injury from the 1982 event. B. Left Knee Disability The Veteran asserts that she suffers from a left knee disability secondary to her service-connected low back disability. The Veteran has not asserted, and the record does not otherwise indicate that the Veteran's current left knee disability is related to disease or injury from a period of ACDUTRA or injury from a period of INACDUTRA. Therefore, entitlement to service connection on a direct basis is not warranted. The Veteran testified at the January 2016 Board hearing that a doctor at VA had told her that her knee problems come from her back. The Board notes that a March 2014 VA physical medicine rehabilitation consultation note documented the Veteran's report of chronic low back pain intermittently radiating to the bilateral knees, but there does not otherwise appear to be any evidence of record, other than the Veteran's lay statements, that a separate left knee disability was caused or aggravated by the Veteran's service-connected low back disability. The Veteran was provided with VA examinations for the left knee in December 2012 and July 2016. At the December 2012 exam, the Veteran reported an onset of symptoms in 2008. X-rays demonstrated mild arthritic changes of the knee without acute bony injury. The July 2016 examination report noted that the Veteran was diagnosed with left knee osteoarthritis in 2002, and had treated it with use of a brace, cane, walker, and pain medication. Imaging demonstrated mild bicompartmental degenerative joint disease of both knees. The July 2016 examiner stated an opinion that it was less likely that the left knee condition was related to service because there was no evidence of a knee symptoms in service or for many years thereafter, and because the current condition was found to be consistent with age. The examiner further opined that the left knee condition was less likely as not related to or aggravated by the Veteran's service-connected low back disability, reasoning that the low back condition would not increase stress on the knee but rather would likely be protective/mitigating, as the back pain would cause the Veteran to stand less, and therefore put less stress on the knees. The Board finds the opinion of the July 2016 examiner to represent the most probative evidence on the question of whether the Veteran's service-connected low back disability caused or aggravated a left knee condition, as he provided clear reasoning to support such conclusion. The Board acknowledges that the Veteran is competent to report as to what she was told by a doctor, but given the notations made in the VA treatment records, finds it more likely than not that the doctor's statement she referenced relates to pain radiating from the low back to the knees, rather than specifically relating the left knee degenerative arthritis to the service-connected low back disability. Such described radiating pain will be discussed further in the remand section, below. C. Hypertension By the Veteran's reports and as documented in her treatment records, she was diagnosed with hypertension in 2003, and was put on medication at that time. At the December 2016 VA examination, the Veteran reported a history of migraines and intermittent headaches as well as dizziness, and stated she was not sure if these were related to hypertension or some other cause. Review of the Veteran's service-treatment records document complaints of headaches and dizziness, but do not document blood pressure readings demonstrating hypertension or consistently elevated blood pressure. The December 2016 VA examiner noted that there were no secondary complications related to hypertension, and noted that the majority of the medical records document diagnoses of "essential hypertension." According to the National Heart, Lung, and Blood Institute, the moniker "essential hypertension," also known as primary or idiopathic hypertension, is used when high blood pressure has no known cause. See National Heart, Lung, and Blood Institute, High Blood Pressure, NIH, https://www.nhlbi.nih.gov/health-topics/high-blood-pressure#Diagnosis. A supplemental VA medical opinion was provided in April 2017, that it was less likely as not that the Veteran's hypertension was incurred in or otherwise related to active duty service and that it was less likely caused or permanently aggravated by her back condition. They found persuasive that the medical records did not show a diagnosis of hypertension until several years after service, and that medical literature does not show an etiological link between back conditions and hypertension. As there is no competent probative evidence of record indicating a causal relationship between the service-connected low back disability and the essential hypertension, or that the latter had been aggravated by the former, the preponderance of the evidence is against this claim. Service connection for hypertension, to include as secondary to service-connected low back disability, must therefore be denied. D. Traumatic Brain Injury The Veteran asserts that she suffers from traumatic brain injury from an injury sustained during basic training in October 1982. At the January 2016 Board hearing, she testified that she was struck by a car in training, which caused her to fall and hit her head on the cement/pavement. She stated that the car in question was following her PT run, was not going very fast, and hit her just hard enough to knock her down. She further testified that she did not lose consciousness, and got up and went to sick call herself. When considering the evidence of record under the law and regulations cited above, the Board finds that an award of service connection for TBI is not warranted. As an initial matter, a preponderance of the evidence weighs against a finding that the Veteran suffers from residuals of a traumatic brain injury. The Veteran was provided with a VA examination with regard to her claimed TBI in December 2016. The examination report reflects consideration of the medical and lay evidence of record, and specifically highlighted that MRIs of the brain conducted by Athens Neurology in 1988, 1991, 1997, and 1999 were all normal. The examination report also demonstrates consideration of a treatment record from Peachtree Neurology from 2001 or 2002 which interpreted an MRI as showing an old brain injury in the back of the head, possibly from TBI. After interviewing the Veteran, the VA examining neurologist opined that the Veteran did not have any subjective symptoms or mental, physical, or neurological conditions or residuals attributable to a TBI and it was more likely than not that the Veteran did not suffer a service-connected traumatic brain injury, because there was no record of either acute symptoms immediately following a head injury or an evaluation of TBI or potentially-related symptoms in the STRs. The examiner acknowledged the presence of seizures and current neuro-behavioral issues, but highlighted EEG findings and the presentation of generalized seizures and absence spells as being typical of Juvenile Myoclonic epilepsy, which is genetic in origin and frequently begins in adolescence or young adulthood, rather than being brought on by head injury. He also found that any current neuro-behavioral issues currently experienced were more likely as not related to underlying mental health issues with variable contributions from side effects of AEDs. The Board finds this opinion to be highly persuasive, as it is supported by a clear rationale and reflects knowledge and consideration of the relevant evidence of record. It is also in line with evidence from the service treatment records, which do not show that the Veteran suffered from any significant head trauma during the initial October 1982 car-related injury during basic training. An STR from shortly after the event noted that the Veteran was struck in the back by a vehicle as she was bent forward tying her shoes during AIT. She reported pain specific to the left lumbar area, with pain on extension and on forward end of stretching. There was no mention of a head injury of symptoms. In a September 1988 periodic report of medical history, the Veteran checked a box indicating that she had not previously suffered and was not then suffering from a head injury. A November 1988 private neurology record noted that the Veteran's seizure disorder started in 1986, with past medical history otherwise noncontributory. The first notation of a head injury was in a July 1991 report of medical history, which the Veteran attributed to falling and hitting her head during her seizures. There is no indication that any such injury occurred during a period of ACDUTRA or INACDUTRA, rather than during an inactive period of reserve service. Additionally, although the record indicates that a subsequent motor vehicle accident took place in May 1994 during a period of annual training, neither the STRs nor the Veteran's reports indicate that such resulted in head trauma or to additional symptoms or an increase in the frequency or severity of seizures. Rather, a February 1995 neurological note indicated that at that time, the Veteran had not experienced a seizure since the May 1994 motor vehicle accident. The Board notes that the Veteran is competent to report events that she experienced during service, but finds the Veteran's later statements asserting that when she was hit by the car in basic training, her head hit the ground with such force so as to result in a TBI to be unpersuasive when considered in context with other evidence of record. In particular, the credibility of such statement is limited by the lack of contemporaneous reports of head trauma/injury in the service treatment records (while other symptoms such as back pain were reported) until approximately 9 years following the October 1982 incident and the Veteran's conflicting statement submitted with her earlier October 2003 claim for a total disability rating based on individual unemployability that she was "not sure if [she] hit [her] head or not." Finally, her description at the Board hearing that the slow-moving vehicle hit her just hard enough to knock her down, and that she was able to get up and go to sick call herself further evidences that she likely did not suffer from significant cognitive, balance, vision, or other symptoms in line with a closed-head injury. Therefore, a preponderance of the evidence shows that the Veteran does not presently suffer from TBI and/or TBI residuals and that the Veteran less likely than not suffered from significant head injury during a period of ACDUTRA or INACDUTRA. As the weight of the evidence is against the claim, service connection for TBI must be denied. E. Acquired Psychiatric Disorder At the January 2016 Board hearing, the Veteran testified that she was diagnosed with anxiety between 1995 and 1999, and that she experiences depression and panic attacks and isolates from friends and family. At the December 2016 VA psychiatric examination, she reported that she feels like she made a mistake going into the Army. The examining psychologist diagnosed unspecified depressive disorder with anxious distress. The Veteran, as well as family members and friends have submitted lay statements indicating that the Veteran entered service in good health and spirits but left with significant limitations from her seizures and associated medications which have led to depression from a resulting inability to work or successfully complete school due to headaches and seizures, as well as sleepiness and concentration difficulties due to her seizure medications. In later statements in 2013, the Veteran's mother wrote that the Veteran had lost her job in 1995 due to seizures and excessive time out for physical therapy for her service-connected back disability. While the evidence demonstrates that the Veteran suffers from a current acquired psychiatric disorder, the most probative evidence of record does not relate it to a period of ACDUTRA or INACDUTRA in such a way as to warrant service connection. At the December 2016 VA examination, the Veteran reported that she first saw a mental health provider following service in 2001, at which point she was involved in treatment for approximately a year and was prescribed psychiatric medications. The examiner noted that on interviewing the Veteran, she reported last being suicidal a few weeks prior due to financial issues and related depression, she also reported low energy and interest, poor sleep, and poor concentration. She further stated that she was unable to keep a job or a man, and attributed this to her decision to go into the Army. The examiner stated an opinion that the Veteran's current mental health diagnosis was less likely than not related to or incurred during her military service. The Board acknowledges that the examiner mistakenly stated that the service treatment records were negative for any complaints/treatment of a primary mood, anxiety, or psychotic related disorder, as an August 1991 private neurology note indicates that the Veteran suffered an episode of loss of consciousness potentially due to nervous upset while on guard duty. The Veteran reported continuing headaches and admitted that a lot of her problems may be due to nervous upset and extra stress because of trying to work an ordinary job, while also being in the reserves, and raising a family. The Board does not find that this omission substantially limits the probative value of the examiner's opinion, however, because the August 1991 private neurological note is speculative in nature, and further does not indicate that an acquired psychiatric condition arose during a period of ACDUTRA or was caused or aggravated by an injury sustained during a period of ACDUTRA or INACDUTRA, but rather relates to psychosocial stress partially related to her reserve service, generally. A supplemental medical opinion was provided by a different psychologist in April 2017, who noted that the Veteran did not report or indicate in the evaluation that her current depressive symptoms were related to or worsened by her back condition, and therefore it was less likely than not that the current unspecified depressive disorder with anxious distress were secondary to her back condition. Although an opinion regarding aggravation was not provided, as the Veteran has not asserted and the record does not otherwise reflect that the service-connected low back disability has aggravated her psychiatric disorder, an opinion on this question is not found necessary. The Veteran has overwhelmingly identified her seizure disorder and claimed TBI, and their resulting functional limitations as the basis for her psychiatric symptoms. Because entitlement to service connection for either of these claimed disorders has not been established, service connection for an acquired psychiatric disorder as secondary to these disabilities is not available. Therefore, although psychiatric problems are found to have manifested during the Veteran's reserve service, the evidence does not indicate that a psychiatric disorder arose during a period of ACDUTRA, was caused or aggravated by an injury sustained during a period of ACDUTRA or INACDUTRA, or was caused or aggravated by the Veteran's service-connected low back disability. A preponderance of the competent and credible evidence is therefore against the claim, and service connection for an acquired psychiatric disorder must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as a preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a seizure disorder, left knee disability, hypertension, traumatic brain injury, and an acquired psychiatric disorder, that doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Duties to Notify and Assist With respect to the claims adjudicated herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). The RO sent the Veteran a letter in September 2009 and November 2012 notifying her of the information and evidence needed to substantiate her claims of entitlement to service connection on direct and secondary bases. These letters also provided the Veteran with notice and informed her of the efforts VA would take, and her responsibilities with respect to obtaining the needed evidence. The September 2009 notice was provided before the initial unfavorable decision, and because the claims were subsequently adjudicated in the Statement of the Case after receipt of the November 2012 notice, any defect in the timing did not prejudice the Veteran. The Veteran was also provided with notice of what type of information and evidence was needed to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and VA's duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores, 580 F.3d 1270. Regarding the duty to assist, VA is required to make reasonable efforts to help a claimant obtain the evidence necessary to substantiate a claim, including obtaining relevant records, whether or not such records are in Federal custody, and providing a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist is found to have been satisfied with respect to the claims adjudicated herein. The Veteran's VA treatment records, private treatment records, and lay statements from the Veteran as well as her friends and family have been associated with the claims file. Pursuant to the Board's June 2016 remand directives, additional VA treatment records from the Atlanta VA Medical Center and private treatment records from five of the six providers identified in the remand have been obtained and associated with the claims file. After multiple unsuccessful attempts to obtain private treatment records from Sugar Hill Wellness Center/Medical and Spa Clinic, the Veteran was sent notice in July 2017 informing her that the records had not been received and requesting that she submit such evidence. This action is found to substantially comply with the June 2016 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially, if not exactly, complied with). The Veteran appeared and testified at a videoconference hearing held before the undersigned VLJ in January 2016. A transcript of this hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ conducting a Board hearing fulfill two duties to comply with the above the regulation: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. Her representative and the VLJ asked questions pertaining to her claimed conditions and service and the existence of any outstanding potentially available evidence which could help substantiate the claims. Neither the Veteran nor her representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has also been provided with VA examinations relating to the issues adjudicated herein. It is well established that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiners interviewed the Veteran, noted review of the claims file, and highlighted the particular evidence of record which they found to be probative. Pursuant to the Board's June 2016 remand instructions, the Veteran was provided with a VA examination of her left knee in July 2016, and opinions were provided as to the likelihood that the Veteran's left knee disability was related to her military service or were caused or aggravated by her service-connected low back disability. The examiner provided clearly stated rationales for each opinion given, reasoning that the left knee condition was medically consistent with the Veteran's age, that there was no evidence of knee problems in service, and that pain from the low back disability would likely result in less strain on the knees due to protective measures such as being less on her feet. The examination provided is therefore found adequate for adjudicatory purposes. As noted above, the Veteran was also provided with examinations regarding her claims for entitlement to service connection for TBI, seizure disorder, acquired psychiatric disorder, and hypertension in December 2016. Each report indicated thorough review of the claims file, and cited to particular evidence which the examiners found to be persuasive. Where sufficient opinions were not provided, supplemental opinions were provided in April 2017. With regard to the aforementioned inaccuracy stated by the December 2016 psychiatric examiner, that the STRs were negative for any complaints/treatment for primary mood, anxiety, or psychotic-related disorders, the Board finds that such mistake does not render the overall opinion inaccurate, as the conflicting August 1991 neurological treatment record in question relates to headaches and stress likely due to nervous upset and stress from the combination of trying to work an ordinary job while raising a family and being in the reserves, generally, as opposed to anything particularly related to a period or periods of ACDUTRA or INACDUTRA. Therefore, the Board finds that remand for an addendum opinion is unnecessary, as it would only result in additional delay without any reasonable chance of potentially benefiting the Veteran's claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. ORDER New and material evidence having been received, the claim for service connection for a seizure disorder is reopened. Service connection for a seizure disorder is denied. Service connection for a left knee disability, to include as secondary to service-connected low back disability, is denied. Service connection for hypertension is denied. Service connection for traumatic brain injury is denied. Service connection for an acquired psychiatric disorder is denied. REMAND Additional development is found needed prior to adjudication of the remaining appeals seeking a disability rating in excess of 20 percent for service-connected low back disability and entitlement to service connection for bilateral hip disability, to include as secondary to the service-connected low back disability. The June 2016 remand directed than an additional VA examination was needed to assess the current severity and manifestations of the Veteran's service-connected low back disability. An examination was provided in July 2016, at which the examiner diagnosed degenerative arthritis of the spine and noted that the Veteran did not report flare-ups. He also found that there was no radicular pain or any other signs or symptoms due to radiculopathy. Although the examiner documented that a May 2011 MRI ordered due to the Veteran's report of lumbar spine pain with radiation into the right hip running down the leg demonstrated moderate facet arthropathy at L5-S1 on the right side, no explanation was provided as to how this reconciles with the conclusion reached that there was no radicular pain. Additionally, the Veteran reported at the July 2016 examinations for bilateral hips and left knee that her low back pain radiated down into her buttocks, hips, and left knee. Finally, at the January 2016 Board hearing, the Veteran reported that she experienced back spasms sometimes lasting for a couple of hours and sometimes for days at a time. This description would seem to indicate that she experiences flare-ups of her low back symptoms, and it is unclear from the examination report whether such was considered by the VA examiner. Thus, on remand, an additional VA examination should be provided which considers the Veteran's lay statements pertaining to flare-ups and provides an explanation as to whether the Veteran suffers from neurological abnormalities associated with her service-connected low back disability. The Board also directed that a VA examination was needed for the Veteran's bilateral hip claim, with opinions concerning both direct and secondary service connection. A VA examination in July 2016 found that the Veteran did not have a current diagnosis relating to the hips, that bilateral hip examination and X-rays were normal, and that the Veteran's bilateral buttock pain represents referred pain from the back, rather than a separate hip disability. Although the examiner stated that X-rays of the hips were normal, he did not indicate when such X-rays were taken, and the Board notes that the January 2012 Disability Benefit Questionnaire included a diagnosis of bilateral hip strain, and X-rays from the December 2012 VA examination were found to document bilateral hip degenerative arthritis. On remand, an additional VA examination and medical opinion should be sought which addresses these seemingly inconsistent reports and provides well-supported opinions as to the likelihood of a causal relationship between the Veteran's ACDUTRA/INACDUTRA service and any current hip disability, as well as the likelihood of a causal or aggravation relationship between the service-connected low back disability and any current hip disability. As the Board is remanding these claims for additional development, action should be taken to associate any updated VA treatment records with the claims file. The Veteran should also be given the opportunity to identify and provide authorization for any relevant private treatment records that she wants VA to request. Accordingly, the claims are REMANDED for the following action: 1. Obtain any updated outstanding VA treatment records from March 2014 to the present and associate them with the claims file. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Ask the Veteran to identify any additional private treatment she has received relating to her back and/or hip disabilities that she would like VA to obtain, and to provide a release form for any such records so that VA can request the records on her behalf. After securing any necessary written authorization from the Veteran, obtain the private records identified, and document all such efforts made if any identified records cannot be provided. If any private records cannot be obtained after reasonable efforts have been made, notify the Veteran of the attempts made and allow her the opportunity to obtain the records. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional other than the individual who conducted the July 2016 examination to assess the current severity and manifestations of the Veteran's service-connected low back disability. All indicated studies must be conducted, including range of motion studies using a goniometer, and all findings reported in detail. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination, and the examiner should specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. The examiner is asked to record the Veteran's description of the symptoms and functional effects of her low back disability. The examiner should then address the following regarding the thoracolumbar spine: a. Conduct full range of motion studies and document findings in terms of degrees. The examiner should record the degree at which objective evidence of pain begins, and whether there is pain under the four following conditions: i) on weight-bearing ii) on nonweight-bearing iii) on active motion, and iv) on passive motion If there is no clinical evidence of painful motion on any such testing, the examiner must so state, and indicate that testing under each condition was performed. b. Provide specific findings as to range of motion after three repetitions of movement, and state whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination. Any additional loss of range of motion upon repetitive motion testing should be noted in terms of degrees of motion lost as well as additional symptomatology which results, if possible. If such information cannot be feasibly determined, the examiner must explain why this information cannot be provided. c. After reviewing the Veteran's complaints and medical history, and requesting further detail from the Veteran, provide an opinion regarding whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination during flare-ups. The Veteran's reports of the effects, frequency and duration of flare-ups should be recorded with as much specificity as possible, as well as any regular protective measures she takes to avoid such flare-ups. Any additional loss of range of motion of the spine during flare-ups should be noted in terms of approximate degrees of motion lost as well as additional symptomatology which results, to the extent possible. The examiner should consider the Veteran's described symptomatology, as well as the medical evidence of record, in making this determination. If an estimate as to approximate additional degrees of motion lost cannot be feasibly determined, the examiner must explain why this information cannot be provided, and provide as thorough of a description of the typical additional functional impairment during flare-ups and upon extended use as possible. Similarly, if the examiner finds that there is no additional functional impairment during flare-ups, the basis of such determination must be explained. For these purposes, the examiner's attention is particularly directed to the Veteran's testimony at the January 2016 board hearing concerning back spasms lasting between a couple of hours and sometimes days at a time. d. Provide an opinion regarding whether there is additional functional impairment due to pain, weakness, excess fatigability, and/or incoordination after repeated use of the joint over time. The Veteran's report of any additional symptoms that arise following repetitive use should be recorded in as much detail as possible, particularly with regard to how such may limit her range of motion. Any additional loss of range of motion following repetitive use over time should be noted in terms of approximate degrees of motion lost as well as additional symptomatology which results, to the extent possible. The Veteran's reports of resulting symptoms should be recorded with as much detail as possible. If the approximate degrees of motion lost cannot be feasibly determined, the examiner must explain why this information cannot be provided. Similarly, if the examiner finds that there is no further impairment following repeated use over time, the basis of such determination must be explained. e. State an opinion as to whether the Veteran has any neurological abnormalities present, including but not limited to radiculopathy, and indicate whether it is at least as likely as not (50 percent probability or greater) that such neurological abnormality is associated with the Veteran's service-connected low back disability. In answering this question, the examiner's attention is directed to a March 2014 VA PM&R consultation report noting intermittent pain radiating to the bilateral knees, and reports of stress incontinence. f. Comment on the functional impact of the Veteran's service-connected low back disability and any associated neurological abnormalities on her activities of daily living, to include occupational activities. To the extent possible, provide an opinion as to the resulting limitations on both physical and sedentary occupational tasks. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state, and further explain why it is not feasible to provide a medical opinion. 4. After completing the development requested in Parts 1 and 2, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the nature and etiology of any hip disability present at any time during the relevant appeal period (October 2011 to the present). Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. Following consideration of the evidence of record and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide a diagnosis for any hip disorder that existed at any time from October 2011 to the present. The examiner is asked to reconcile, to the extent possible, the finding by the July 2016 VA examiner that the Veteran did not have a current hip disability, with X-rays from the December 2012 VA examination demonstrating bilateral degenerative arthritis of the hips. b. For any disorder identified above, state whether it is at least as likely as not (50 percent or greater probability) that the disorder arose during or was caused by an injury during the Veteran's periods of ACDUTRA or INACDTURA. The examiner is advised that the Veteran specifically asserts that she suffered right hip pain immediately following a motor vehicle accident caused by a seizure she experienced in May 1994, during a period of active training. c. For any disorder identified above, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused or aggravated (worsened beyond the normal progression of the disorder) by the Veteran's service-connected low back disability. If it is determined that a current hip disorder was aggravated by the service-connected disability, the examiner should quantify the approximate degree of disability, or baseline, before the onset of aggravation, to the extent possible. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Thereafter, review the requested medical examination reports to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. 6. After completing the aforementioned, and any additional development deemed necessary in light of the expanded record, readjudicate the Veteran's claims for entitlement to a disability rating in excess of 20 percent for her service-connected low back disability and entitlement to service connection for bilateral hip disability, including as secondary to service-connected low back disability. If any of the benefits sought on appeal are not granted in full, the Veteran and her representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs