Citation Nr: 18144204 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 12-25 348 DATE: October 24, 2018 ORDER New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for a skull fracture is denied. Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to compensation under 38 U.S.C. §1151 for a neck injury, speech impediment, and decreased range of motion in the neck, claimed as due to Department of Veterans Affairs (VA) negligence/lack of care in providing surgical treatment is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In an unappealed May 1959 rating action, the Regional Office denied entitlement to service connection for residuals of a skull fracture, finding no nexus between the Veteran’s active service and his skull fracture. 2. The Veteran did not initiate an appeal to the May 1959 rating action or submit new and material evidence within one year; it became final. 3. Evidence received since the final May 1959 rating action does not relate to an unestablished fact necessary to substantiate the claim for service connection for a skull fracture. 4. The preponderance of the evidence is against finding that the Veteran has traumatic brain injury due to a disease or injury in service, to include specific in-service event, injury, or disease. 5. There is no additional disability due to VA treatment for a skull fracture in December 1958. CONCLUSIONS OF LAW 1. The May 1959 rating action that denied service connection for type II diabetes mellitus became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a skull fracture. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for traumatic brain injury are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a neck injury, speech impediment, and decreased range of motion in the neck, claimed as due to VA negligence/lack of care in providing surgical treatment have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1957 to June 1958. He also had additional service in the U.S. Air Force Reserve. Application to Reopen The Veteran seeks to reopen a claim of entitlement to service connection for a skull fracture. The claim was previously denied in a May 1959 rating action because the Veteran failed to prosecute the claim. Subsequent rating decisions documents consistently characterized the denial as “not incurred in/caused by service.” The question before the Board is whether new and material evidence has been submitted to reopen the claim. Since the May 1959 rating action, additional service treatment records have been associated with the claims file. However, these records do not reveal any indication of any skull fracture or head injury and are, therefore, not relevant to the claim. In addition, since May 1959, additional treatment records from private and VA providers have been associated with the claims file. These records do not reveal any indication of a skull fracture in service or any indication of a current disability related to the claimed in-service skull fracture. While some of the evidence in “new” in that it had not been previously submitted, none of the evidence is material as it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. There is still no evidence of an in-service injury or a nexus between a current disability and service. Therefore, as new and material evidence has not been received to reopen the claim of entitlement to service connection for a skull fracture, the application to reopen is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection The Veteran contends that immediately prior to discharge from service he was severely assaulted and suffered severe head and brain trauma. 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 evidence does not show that the Veteran has a disability claimed as traumatic brain injury that was incurred in or is due ot the Veteran’s active service. 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). Review of the service treatment records reveal that in February 1958 the Veteran was treated for hand wounds and underwent psychiatric observation. The Veteran reported that he was attacked by four men; however, the attending physician who first administered to the Veteran expressed the opinion that the circumstances and the wounds presented indicated that they were self-inflicted. The service treatment records do not reveal any indication of any traumatic brain injury. Upon examination at separation from service in June 1958 the Veteran was not noted to have any head, face, neck, or scalp disorder. Post service treatment records indicate that the Veteran was treated for a skull fracture in December 1958. A private statement dated in May 2011 indicates that the Veteran was a month post-surgery and that the Veteran raised a question that related to his brain injury many years ago. The Veteran was spastic and it was not possible to tell whether this spasticity related to his old brain injury or more recent cord compression. The provider suspected the latter. The Veteran had significant degenerative changes which was the source of his current surgery. While a specific date could not be placed on the cause of spondylitic change, there was no question he received significant trauma at some stage. While the Veteran believes that he has a traumatic brain injury related to an assault suffered immediately prior to discharge from service, the claims file reveals no indication or diagnosis of any traumatic brain injury related to active service. Although the Veteran contends that he was assaulted in service, the service treatment records do not reveal any assault and instead indicate that the Veteran had self-imposed hand wounds. In addition, the service treatment records do not reveal any complaint of any head injury. Although it was noted that it was not possible to tell whether the Veteran’s spasticity related to his old brain injury or more recent cord compression, there is no indication that the Veteran had any brain injury in service. Rather, the Veteran’s post service treatment records reveal that the Veteran suffered a skull fracture. The skull fracture was treated and there is no indication of any residuals of the skull fracture and no evidence of any traumatic brain injury related to service. As the preponderance of the evidence is against a finding that the Veteran has a traumatic brain injury incurred in or due to his active service, service connection is denied. 1151 The appellant seeks entitlement to compensation under 38 U.S.C. § 1151 for a neck injury, speech impediment, and decreased range of motion in the neck. The Veteran contends that he was operated on and advised that his neck surgery was related to his head trauma which had been done incorrectly by the VA and that had it been done correctly his speech impediment and range of motion would have been corrected and suffering alleviated. Under 38 U.S.C. § 1151, a Veteran may be compensated for a “qualifying additional disability” that was not the result of the Veteran’s willful misconduct and that is actually and proximately caused by hospital care, medical or surgical treatment, or examination furnished by VA. A “qualifying additional disability” is proximately caused by medical care, treatment, or examination when the disability results from either the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or the disability results from “an event” that is “not reasonably foreseeable.” 38 C.F.R. § 3.361. In a treatment discharge note, dated in January 1959, the Veteran was noted to have been admitted in December 1958 after having been struck on the head with a pitcher. He was initially taken to a different hospital where two scalp lacerations were sutured and x-rays of the skull were taken which revealed a depressed skull fracture. The Veteran was transferred to VA where he complained of pain in the right side of his head and headache secondary to his head injury. The Veteran was taken to the operating room on the day of the admission and under local anesthesia a 2 centimeter (cm) by 2 cm. by 1 cm. depressed skull fracture was elevated. The Veteran had a benign postoperative course. In January 1959 the Veteran’s wound healed per primum. Treatment records thereafter do not reveal any complaint, diagnosis, or treatment for any head injury. The Veteran underwent left and right hip arthroplasties by a private provider in August 2009 and September 2010. In a private treatment note dated in January 2011 the Veteran was noted to have had surgery on his hips. After the surgery he had some recurrent unsteadiness. The Veteran was noted to have a significant history for having a head trauma 50 years prior. He was noted to have made a complete recovery. The Veteran’s wife noted that up to the surgery the Veteran was normal in terms of upper and lower extremity strength and reflexes and function. In a private treatment note dated in February 2011 regarding the Veteran’s cervical spine it was noted that the Veteran’s speech was different than the first encounter with the Veteran. In March 2011 it was noted that the majority of the trouble was from the Veteran’s neck. In April 2011 it was noted that the head injury 50 years did not leave a residual. As noted above, in May 2011 a private provider identified the Veteran had spasticity and indicated that it was more likely due to the Veteran’s neck rather than any head injury. A VA treatment note dated in 2015 indicates that the Veteran had difficulty with coordination since a stroke and that since his neck surgery two years prior he could not stand or walk without a walker. The preponderance of the evidence is against a finding that the Veteran has additional disability due to VA treatment identified as the skull surgery in December 1958. The medical records indicate that the Veteran’s head injury healed after surgery. As noted above, the Veteran was reported to have spasticity and that it was not possible to tell whether this spasticity related to his old brain injury or more recent cord compression. However, a private provider has indicated that the Veteran’s spasticity was more likely associated with the Veteran’s neck rather than any head injury. The Veteran underwent private hip arthroplasties and the Veteran’s spouse reported that the Veteran was normal up until after the surgery. The Veteran also underwent private neck surgery. The Veteran’s difficulty with coordination were noted to be since a stroke suffered. There is no indication that any stroke is due to VA treatment. The Veteran was noted to have trouble with standing and walking after his neck surgery, which was performed by a private provider. As the preponderance of the evidence is against a finding that the Veteran has additional disability due to VA treatment, specifically the skull surgery performed in December 1958, entitlement to compensation pursuant to 38 U.S.C. § 1151 is denied. REASONS FOR REMAND Pursuant to the most recent Board remand, the Veteran was afforded VA examinations in September 2017 which yielded negative nexus opinions. That opinion is inadequate because the examiner impermissibly relied solely on the absence of disabilities in service. An adequate opinion must be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Additional, relevant service treatment records were associated with the claims file subsequent to the May 1958 rating action denying service connection for a psychiatric disability. As such, the claim will considered on a de novo basis. See 38 C.F.R. § 3.156(c). Service records indicate that the Veteran underwent psychiatric observation, was suspected of attempting suicide, and was found to have emotional instability in service. A VA treatment record in 2015 indicates questionable depression and treatment records indicate that the Veteran was prescribed Venlafaxine for mood. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder because no VA examiner has opined whether the Veteran has a current acquired psychiatric disorder associated with the Veteran’s active service, to include the Veteran’s in service psychiatric observation, attempted suicide, and emotional instability. VA treatment records dated to April 2017 have been obtained and associated with the claims file. On remand, attempts must be made to obtain and associate with the claims file all VA treatment records dated since April 2017. 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Attempt to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since April 2017. Any additional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Thereafter, schedule the Veteran for appropriate VA examination to determine the nature and etiology of his bilateral hip, knee and low back disabilities. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran’s physical examination, and the Veteran’s statements regarding the development and treatment of his claimed disorder (that his service duties in aircraft maintenance and repair required him to be constantly climbing ladders and jumping down from the ladders which resulted in the current disabilities), the examiner should address the following: (a) Specifically identify all diagnoses related to the hips, knees and back. (b) for each diagnosed disability of the hips, knees and back, is it at least as likely as not (i.e., a 50 percent or greater probability) that the currently diagnosed hip, knee or back disability is related to active service or any incident of service. The examiner is notified that a lack of treatment in service or objective diagnostic tests cannot be the sole basis of a negative nexus opinion. A complete rationale must be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner must explain why this is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disability found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in service psychiatric observation, attempted suicide, and emotional instability. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel