Citation Nr: 18141405 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 11-25 367 DATE: October 10, 2018 ORDER Entitlement to service connection for residuals of a head injury is denied. REMANDED Entitlement to service connection for residuals of a back injury is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has residuals of a head injury due to a disease or injury in service, to include head injuries sustained in multiple fights during service. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury are not met. 38 U.S.C. §§ 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1956 to October 1957. The appeal was most recently before the Board in October 2017 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives for the claim decided here. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s complete service treatment records (STRs) are unavailable and it has been determined that they are “fire related” (i.e., destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973). Under these circumstances, VA has a heightened duty to assist the Veteran in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). This decision has been undertaken with that in mind. The Veteran asserts that he has residuals of a head injury he sustained during his active duty service, from a fight where he was hit in the head with a boot, a fight where he was hit in the back of a head with a rifle, or during a fight where he was struck in the mouth by an ex-boxer. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran’s currently reported residuals of a head injury are not related to service. The preponderance of the evidence weighs against finding that the Veteran’s claimed disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was diagnosed with intermittent headaches and on March 2016 VA examination the Veteran reported having mild memory loss. However, in a January 2014 VA treatment note, the Veteran reported having a thirty-year history of left frontal intermittent headaches, which would put onset of his headaches nearly two decades after his separation from service in 1957. Further, in a March 2016 VA opinion and a March 2017 clarifying addendum opinion, the March 2016 VA examiner opined that the Veteran’s claimed residuals of a head injury were not at least as likely as not related to an in-service injury, event, or disease, including his reported multiple fights during service, which included being hit in the head with a boot thrown during a fight, being hit in the head with a rifle during another fight, and being struck in the mouth by an ex-boxer. The rationale was that, taking these events as factual due to the unavailability of complete STRs, such reported injuries were consistent with mild, isolated traumatic head injuries. The examiner noted there was limited data available to show long term residuals of such injuries. She noted the medical research available was reviewed and shows that only migraine headaches and possibly seizure disorders typically manifest long after mild traumatic brain injury (TBI) and typically result from repeated mild traumatic exposures such as blasts, football helmet to helmet contact or other repetitive head trauma, and there is no evidence in his current medical record to show the Veteran had migraines or seizure disorder. Additionally, the examiner noted that based on the Veteran’s reports on March 2016 examination his head injuries during service were mild by definition and the available medical research does not support that his current symptoms are related. The examiner also noted that the Veteran had a light stroke in 2014, and opined that any neurologic manifestations would more likely originate from a stroke, not a remote injury in service that resolved. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran testified at a hearing before the undersigned that he suffered from headaches that he believed are related to in-service fights, which he described. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran’s reported symptoms is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple cause and effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Consequently, the Board gives more probative weight to the March 2016 VA examiner’s addendum opinion which specifically acknowledged that the Veteran’s STRs were fire-related and included a detailed rationale for the opinion provided. REASONS FOR REMAND Entitlement to service connection for residuals of a back injury is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. There has not been substantial compliance with the Board’s previous remand directives regarding these issues; another remand is required. Stegall, 11 Vet. App. at 268. The Board had remanded the claims because prior medical opinions did not acknowledge that the Veteran’s service treatment records were fire-related, and the only available service treatment record consisted of the report of his entrance physical examination. The November 2017 VA addendum opinion specifically acknowledged that the Veteran’s service treatment records were fire related; however, the effect of the unavailability of the records was not considered. The rationale provided for the negative nexus opinions were identical to the examiner’s prior March 2017 VA addendum opinion, which included that the Veteran’s STRs were silent for any evidence of the disabilities. Accordingly, a new examination is necessary which should include a detailed history from the Veteran and consideration that a lack of notation in any STRs cannot be the basis of a negative opinion. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any back, sleep, or cardiac complaints since March 2016. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records not associated with the record, including any updated VA treatment since March 2016. 2. After the completion of the above, schedule the Veteran for an examination with an appropriate clinician to determine the likely etiology of his back, sleep apnea, and hypertension disabilities. The entire record, including this remand, must be reviewed by the examiner. The examiner should solicit a complete medical history relative to the claimed disabilities. Based on the record, the examiner should provide an opinion to the following: (a.) Is it at least as likely as not that the Veteran’s back disability is related to an in-service injury, event, or disease? (b.) Is it at least as likely as not that the Veteran’s sleep apnea is related to an in-service injury, event, or disease? (c.) Is it at least as likely as not that the Veteran’s hypertension is related to an in-service injury, event, or disease? The examiner is specifically requested to acknowledge that the Veteran’s service treatment records are fire-related, and the only available service treatment record consists of the report of his entrance physical examination. The lack of notation of the claimed disabilities in and STRs cannot be the basis for a negative opinion. The examiner should also consider and discuss as necessary the Veteran’s lay statements that his back disability, sleep apnea, and hypertension began during service and that he had continued symptomatology since service. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs