Citation Nr: 1803963 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 13-22 129A ) ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for residuals of a traumatic brain injury (TBI), to include headaches, memory loss, and difficulty concentrating. 2. Entitlement to service connection for headaches as residuals of a TBI. 3. Entitlement to service connection for TBI residuals, other than headaches, to include memory loss and difficulty concentrating. 4. Entitlement to service connection for a right shoulder disability, to include as secondary to gastroesophageal reflux disease (GERD). 5. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. 6. Entitlement to service connection for substance abuse disorder as secondary to service-connected disabilities. 7. Entitlement to an initial disability rating in excess of 10 percent for GERD. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Bates, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to August 1988. These matters come before the Board of Veterans' Appeals from rating decisions by the RO. In determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Consequently, the Board has expanded the matters on appeal as indicated on the title page. The issues of entitlement to service connection for an acquired psychiatric disability, substance abuse disorder, right shoulder disability, and entitlement to an increased rating for GERD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Although the October 2007 rating decision that denied service connection for residuals of a TBI was final, the Veteran has submitted new and material evidence to successfully reopen his claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The Veteran has been competently and credibly diagnosed with chronic headaches, suffered a head injury during his active duty service, and has competently and credibly shown continuity of symptomatology; thus, the criteria to establish service connection for chronic headaches are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). 3. The Veteran has not credibly reported symptoms of memory loss and difficulty concentrating, which negatively impacts the probative value of any similarly diagnosed TBI residuals; in the absence of current disabilities, the criteria to establish service connection for such claims have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and material evidence As a preliminary matter, the Board observes that although the October 2007 rating decision that denied service connection for TBI residuals was final, the Veteran has submitted new and material evidence to successfully reopen his claim. See 38 U.S.C. § 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). Service connection for headaches as TBI residuals The Veteran seeks service connection for headaches, claimed as residuals of a TBI. Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board observes that the Veteran has been diagnosed with chronic headaches; he also clearly suffered from a motor vehicle accident during his active duty service. These facts establish the first two service connection elements. See Shedden, 381 F.3d at 1167. Regarding the final element, the Board notes that the Veteran's headaches are an organic disease of the nervous system; this finding allows the Veteran to potentially establish a nexus by demonstrating continuity of symptomatology. See 38 C.F.R. § 3.309; Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Through his competent and credible reports, augmented by submitted treatment records, the Veteran has successfully demonstrated continuity of symptomatology; thus, the criteria to establish service connection for chronic headaches have been met. See 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017); Shedden, 381 F.3d at 1167; Walker, 708 F.3d at 1336; Falzone v. Brown, 8 Vet. App. 398 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for memory loss and difficulty concentrating as TBI residuals A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Shedden, 381 F.3d at 1167. The Board has considered the evidence of whether the Veteran has a current disability causing memory loss and difficulty concentrating. Objective testing has strongly indicated that the Veteran likely exaggerated these particular symptoms, which negatively impacts his credibility to claim these particular residuals of a TBI. See, e.g., VA Treatment Records, 42 (Mar. 1, 2012) (Legacy Database). The competent and credible medical evidence of record, appropriately accounting for this discrepancy, weighs against finding the Veteran has such a claimed disability; consequently, the claim must be denied. See 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017); Shedden, 381 F.3d at 1167; Walker, 708 F.3d at 1336; Falzone v. Brown, 8 Vet. App. 398 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In other words, the Veteran does not have any disabling residuals of a head injury other than the headaches granted above. ORDER The petition to reopen the previously denied claim of entitlement to service connection for residuals of a TBI is granted. Service connection for chronic headaches as residuals of a TBI is granted. Service connection for memory loss and difficulty concentrating as residuals of a TBI is denied. REMAND The Board observes that a potential symptom to warrant a 30 percent disability rating for GERD involves shoulder pain. See 38 C.F.R. § 4.114 (2017), Diagnostic Code 7346. Notably, the Veteran has reported experiencing right shoulder pain, and he has also filed a service connection claim for a right shoulder disability. See, e.g., Veteran Statement, 1 (Mar. 27, 2009). Unfortunately, the VA examinations of record have not adequately contemplated the Veteran's reported symptoms of experiencing shoulder pain in the context of his service-connected GERD, which renders them inadequate to fairly adjudicate his claim. Once VA provides an examination, it must provide an adequate one; consequently, the claim must be remanded. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Whereas the service connection claim for a right shoulder disability is inextricably intertwined with the GERD claim, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As implied in the introduction, the Board has liberally construed the Veteran's original claim of entitlement to service connection for PTSD to also include any diagnosed acquired psychiatric disability and substance abuse disorder. Although substance abuse disorder may only be service-connected on a limited secondary basis, the Board observes that evidence indicates that the Veteran abused alcohol to self-medicate the pain experienced from his service-connected disabilities. See 38 C.F.R. §§ 3.301(a), 3.301(c)(2), 3.301(c)(3). Whereas the VA examinations of record have not adequately addressed whether the Veteran's substance abuse disorder or depression are secondary to his service-connected disabilities, the Board finds that the claims must be remanded to provide an adequate examination. In light of the fact that the findings from the Veteran's new mental health examination will prove probative to the issue of entitlement to service connection for PTSD, separate adjudication of this issue would be premature at this time. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to the claims remaining on appeal. The Veteran should also be afforded an opportunity to identify any additional records that could help corroborate his reported in-service personal assault. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his GERD disability. The examiner is specifically requested to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed right shoulder pain is related to his GERD. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disability present during the pendency of his claim, to include PTSD, depression, and substance abuse disorder. For any identified acquired psychiatric disability, the examiner should opine whether it is at least as likely as not that the disability was caused by, or otherwise related to, an in service disease or injury, or if PTSD is diagnosed, an in-service stressor (which should be identified). The examiner should also address whether any identified disability, to include substance abuse disorder, is at least as likely as not caused by, or otherwise related to, the Veteran's service-connected disabilities. A clear and complete rationale should be provided for any opinions expressed. 4. Then, re-adjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, issue the Veteran and his representative a supplemental statement of the case and return the appeal to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs