Citation Nr: 18144365 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-24 540 DATE: October 25, 2018 ORDER Service connection for a cervical spine disability is denied. Service connection for a traumatic brain injury (TBI) is denied. Service connection for tinnitus is granted. REMANDED Service connection for an eye disorder manifesting by loss of vision due to trauma is remanded. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Service connection for hypertension, to include as secondary to an acquired psychiatric disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a right elbow condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a cervical spine disability due to a disease or injury in service, to include the 1980s assault. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of TBI. 3. Resolving all reasonable doubt in the Veteran’s favor, tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for TBI are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to March 1988. The Board previously remanded the appeal in May 2015 to schedule a hearing. The Veteran testified before the Board during this hearing in July 2015. A transcript is included in the record. The Board remanded the claims in January 2016 for additional development to include VA examinations. In a March 2017 decision the Board denied the above claims, which were subsequently appealed to the U.S. Court of Appeals for Veterans Claims (Court). The Court in a May 2018 memorandum decision vacated and remanded the above issues back to the Board for subsequent development and adjudication. At the outset, the Board makes the factual finding that sometime in the 1980s (as the exact year has varied based on the Veteran’s reporting in the record) that the Veteran was assaulted in Fort Polk, Louisiana. The Veteran tried to chase someone who stole his necklaces and was then hit in the face by a blunt object. He was knocked out for 15 or 20 seconds and then came to. These findings are from the Veteran’s own sworn testimony at the July 2015 Board hearing in furtherance of his claims. (Hereinafter “the 1980s assault”). Given this favorable finding, there is no further need for VA to assist the Veteran in substantiating the occurrence of this in-service event. 1. Service Connection: Cervical Spine Disorder The Veteran contends that his cervical spine disorder is the result of the 1980s assault. 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 has a current diagnosis of degenerative disc disease of the cervical spine and the Board has made the factual finding that the 1980s assault occurred. However, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of degenerative disc disease is etiologically related to the 1980s assault. 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). The August 2016 VA examiner opined that the Veteran’s degenerative disc disease is not at least as likely as not related to service. The examiner’s rationale was that degenerative disc disease is the result of chronic weight-bearing on the cervical disc mechanism and at the time of the Veteran’s diagnosis, which was 20 years after discharge from service, the findings were consistent with his age. The examiner further stated that most individuals normally have progressive cervical degenerative disc disease which can be documented on imaging by age 40. The examiner’s opinion is probative, because it contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Court found that the August 2016 VA examiner made a prohibited factual determination by performing fact-finding as to whether the Veteran experienced a head injury in service. The Board has considered the Court’s holding, as set forth in the May 2018 memorandum decision, along with the other evidence of record. The Board is satisfied that the etiology opinion of the August 2016 VA examiner and the evidentiary record is sufficient to rely upon in adjudicating this claim. In this opinion, the examiner provides rationale for the negative opinion, to include a separate cause with rationale for this finding, that is sufficient upon its own (without reliance on the prohibited factual determination). Importantly, the examiner’s finding is dependent on the examiner’s medical expertise, detailing medical pathology that led to the determination that the current disability was consistent with age. After a careful reading of the January 2013 private assessment by Dr. PP, the Board finds that Dr. PP did not ascribe any etiological cause to the Veteran’s degenerative disc disease. Dr. PP’s finding merely corroborates the Board’s factual finding above, that the Veteran has a current disability. Moreover, the Board finds it is highly probative that no medical professional who has treated the Veteran has suggested in their treatment notes that the Veteran’s degenerative disc disease was somehow related to service. The Board also finds it highly probative that this disorder was diagnosed several decades after service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Despite the Board’s finding that the 1980s assault occurred, consideration of the other evidence of record evidences that the Veteran’s degenerative disc disease is attributable to age progression and not related to service. Neither the Veteran nor his representative has presented or identified any contrary medical opinion or treatment that supports that his cervical spine disorder is not related to age. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board has considered the Veteran’s lay statements in reaching its conclusion. While the Veteran is competent to report having been assaulted in service, he is not competent to determine that his cervical spine degenerative disc disease was caused by the 1980s assault. The Board finds that linking general symptomology of neck pain to degenerative disc disease is an inherently complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). The record demonstrates that the Veteran does not have any type of medical training, experience, or background. Accordingly, the Veteran’s lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, the Board finds that the weight of evidence is against the claim. As the preponderance of the evidence is against the claim of service connection for a cervical spine disability, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   2. Service Connection: TBI The Veteran asserts he suffered a traumatic brain injury due to the 1980s assault. 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 does not have a current diagnosis of TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The August 2016 VA examiner evaluated the Veteran and determined that he had no pathology to support a diagnosis of TBI. The examiner explained that the Veteran’s service treatment records failed to demonstrate evidence of a brain injury. She opined that there was no evidence of immediate post-concussive symptoms. The examiner further opined that not all individuals exposed to an external force will have brain injury. The Board acknowledges that the Court found that the August 2016 VA examiner made a prohibited factual determination by performing fact-finding as to whether the Veteran experienced a head injury in service. The Board has considered the Court’s reasoning, as set forth in the May 2018 memorandum decision, along with the other evidence of record. The Board is satisfied that the diagnostic findings of the August 2016 VA examiner and the evidentiary record is sufficient to rely upon in adjudicating this claim without reliance on the prohibited factual determination. The medical evidence of record does not support a diagnosis of TBI. VA treatment records reported that a July 2011 brain MRI was unremarkable. Thereafter, in May 2012, the Veteran contacted a psychiatrist at the VA (Dr. CV) and demanded referral to the TBI Team. The resulting August 2012 VA Neuropsychology Consult and Addendum was ordered and found no TBI. Based on an in-person interview with the Veteran and administration of a battery of tests, Dr. AZ concluded that the Veteran did not meet the diagnostic criteria for “any cognitive disorder.” She opined that it is highly unlikely that a mild concussive injury in the late 1980’s was the etiology of his current cognitive complaints. This opinion takes as fact an in-service injury of the type conceded as true by the Board’s fact finding. She ascribed the test findings to a psychiatric disorder. Subsequently, the Veteran contacted Dr. AZ as to her findings. Dr. AZ wrote: “[The Veteran] asked why I did not use the ‘TBI 2nd level worksheet as mandated by VA’ to determine his reported TBI event. I related this form is only intended for a specific purpose related to Polytrauma which he does not meet. I described to him the basis of how I made my diagnosis. In particular, I related that his reporting of events is most consistent with a mild concussive event at best and not something expected to cause long-term impairment.” The Board finds that the most probative evidence of record is the August 2016 VA examination and the August 2012 VA Neuropsychology Consult, as they are the only medical testing and opinions of record regarding TBI. The Board adopts the conclusions of the August 2016 VA examination and the August 2012 VA Neuropsychology Consult finding that the Veteran does not have TBI. In particular, both considered the 1980s assault in formulating their opinions. Moreover, the Board finds it highly probative that an event of external force will not necessarily cause brain injury. Hence, while the Board finds that the Veteran was assaulted in service, that assault did not amount to TBI. Neither the Veteran nor his representative has presented or identified any contrary medical opinion or treatment that supports that he has TBI. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Furthermore, during the pendency of this appeal the record is devoid of any indication from other medical providers that treated the Veteran that they suspected TBI. The Board gives no weight to the findings contained within the Military Family Clinic records from September 2016 indicating a DVBIC scale showed a positive screen for “possible TBI.” The clinician espoused concerns regarding the validity of the Veteran’s reported symptoms. Given that this clinician, who administered the test, found that the Veteran had questionable reporting during examination, the Board finds that its results are of little to no probative value to the issue at hand and should be afforded little to no weight when compared against specific testing in the record to ascertain the presence of TBI. While the Veteran believes he has TBI, he is not competent to provide a diagnosis in this case. The brain is a medically complex organ, and injuries and diseases affecting the brain require specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, the existence of TBI is something for which a lay opinion would not be accepted as competent evidence as this is an inherently complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). The record demonstrates that the Veteran does not have any type of medical training, experience, or background. As the record demonstrates that the Veteran does not possess the requisite training or credentials needed to render a competent opinion as to a medical diagnosis, his lay opinion that he has TBI is not competent evidence and has no probative value. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives the greatest probative weight to the competent medical evidence and the findings of the August 2017 examiner and Dr. AZ. The Board is cognizant of the Veteran’s contentions that the August 2016 VA examination was “unfair” and his disagreement with the findings of Dr. AZ. There was, however, no pathology to support a finding of TBI based upon medical testing. These medical professionals, based on their review of the record and in person examination and testing of the Veteran, determined that there was no indication of TBI. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). The Board will not substitute its own judgment or the lay judgment of the Veteran, in determining whether an appropriate diagnosis was made by trained medical professionals. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that “BVA panels may consider only independent medical evidence to support their findings”). Moreover, this argument does not outweigh the fact that the evidence, as a whole, does not suggest TBI, as also demonstrated by the negative brain MRI. Therefore, the Veteran does not have a current disability of TBI. In the absence of proof of a present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225. In sum, the Board finds that the weight of evidence is against the claim. As the preponderance of the evidence is against the claim of service connection for TBI, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service Connection: Tinnitus The Veteran contends that his tinnitus is due to acoustic trauma in service from working in the motor pool and due to the 1980s assault. The Board concludes that the Veteran has a current diagnosis of tinnitus, which had its onset in 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). Resolving all reasonable doubt in favor of the Veteran, the Board finds that his diagnosed tinnitus is related to service. Despite the lack of reports of pertinent symptoms shown in the service treatment records and the conflicting statements of record regarding the onset of tinnitus, the Board applies the benefit of the doubt doctrine and finds that the Veteran’s tinnitus began during his active duty service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. While the Veteran’s report of the onset of his tinnitus is inconsistent, it nonetheless amounts to the same ultimate factual finding --- that his tinnitus had its onset sometime during service. Moreover, by the May 2018 memorandum decision, the Court found that the July 2012 VA audiological examination was inadequate. As a result, there is no medical expert opinion of record. Based on the governing case law, tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). As the case law is in the Veteran’s favor, the Board finds the Veteran’s statement as to experiencing tinnitus, its in-service onset, and its continuation since service constitute competent evidence in support of his claim. Accordingly, the Board resolves doubt in the Veteran’s favor and finds that the Veteran’s current tinnitus had its onset during active duty. In reaching this decision, the Board makes no factual finding as to the etiological cause of the Veteran’s tinnitus. Charles v. Principi does not extend to a lay person’s ability to ascertain the etiology or pathology of their tinnitus; rather, they are confined to opining to the onset of symptoms. See id. at 374 (citing Layno v. Brown, 6 Vet. App. 465, 469-70 (1994)) (lay evidence is competent to establish features or symptoms of injury or illness). As the evidence reflects that the Veteran experienced tinnitus in service, that he has been diagnosed as having current tinnitus, and that his tinnitus has continued since service, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 4. Service Connection: Eye Disorder A remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford the Veteran every possible consideration. The Veteran contends that he has “loss of vision” due to the 1980s assault. The Board cannot make a fully-informed decision on the issue of an eye disorder etiologically related to the assult because no VA examiantion has been provided. The Board acknowledges that the Veteran has carried diagnoses of bilateral optic nerve atrophy and traumatic commotio retinae of the right eye during the appeal, among other diagnosed eye disorders. See April 2017 Private Eye Examination by Dr. MM. The Board finds that remand is necessary to ascertain what various diagnosed eye disorders are etiologically related to the 1980s assault. See Douglas v. Shinseki, 23 Vet. App. 19 (2009) (VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim). 5. Service Connection: Acquired Psychiatric Disorder, to include PTSD A remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford the Veteran every possible consideration. As per the May 2018 memorandum decision, re-adjudication is warranted for this claim. In particular no examiner has discussed the diagnosis of PTSD contained within the Military Family Clinic records from 2016. Additionally, the Veteran submitted a November 2015 letter from private physician (Dr. FG) stating that the Veteran had diagnoses of depression and bipolar disorder during active duty service, and that severe traumatic events more likely than not were responsible for a current diagnosis of PTSD. The Board further notes that the August 2016 VA examiner dismissed bipolar disorder without considering that the Veteran had carried diagnoses of bipolar type I and II during the pendency of the appeal. The Board notes that a Veteran may be granted service connection for a disability that resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, the examiner must address the etiology of the various diagnosed psychiatric disorders during the appeal, even if one has resolved by the time of examination.   6. Service Connection: Hypertension The Board cannot make a fully-informed decision on this issue because the Veteran contends it is secondary to his PTSD and acquired psychiatric disorders, which are being remanded. The claim for service connection for hypertension is inextricably intertwined with the pending psychiatric claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Consideration of the claim for hypertension must be deferred pending the resolution (development and readjudication) of the psychiatric claim. 7. TDIU The Board cannot make a fully-informed decision on this issue because the Veteran contends that TDIU is due to his PTSD and acquired psychiatric disorders, which are being remanded. The claim for TDIU is inextricably intertwined with the pending psychiatric claim. See Harris, supra. Consideration of the claim TDIU must be deferred pending the resolution (development and readjudication) of the psychiatric claim. Additionally, at the time of this decision, the Veteran does not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). As a result, the Board also finds that adjudication of TDIU must also be placed on hold until the AOJ adjudicates the above remanded claims and then TDIU can be adjudicated. 8. Section 1151 Claim: Right Elbow As per the May 2018 memorandum decision, the Board remands for a medical addendum opinion from the September 2016 VA examiner to opine whether the Veteran had a right ulnar nerve condition when he presented to the emergency room in March 2010. In turn, the examiner based on his conclusion of the existence of a right ulnar nerve condition in March 2010, should further opine whether the Veteran had any additional disability of the right elbow following his December 2010 surgery due to VA’s failure to timely diagnosis condition. In particular, the Court took note that the September 2016 VA examiner opined that the Veteran’s surgery could have improved his condition had it been expedited. Consequently, the examiner should clarify his rationale behind this statement. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private medical care or VA choice medical provider who treated him for an eye disorder and an acquired psychiatric disorder, to include PTSD. Make reasonable efforts to secure the necessary releases and to associate any such identified records with the claims file. 2. After completing the development listed in No. 1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any eye disorder manifesting by loss of vision due to trauma. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the 1980s assault. The examiner should address in his/her report the diagnoses by Dr. MM’s April 2017 Private Eye Examination. A copy of the claims file must be provided to the examiner and reviewed. This should be reflected in the corresponding report. A copy of this remand should be provided to the examiner. The Board has made the factual finding that the 1980s assault occurred, as described in the Reasons and Bases section of this decision. The examiner must accept this as fact in reaching any medical conclusions. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his/her opinion. 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 a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 3. After completing the development listed in No. 1, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed acquired psychiatric disorder, to include PTSD, adjustment disorder, bipolar disorder (type I and II), anxiety disorder, depressive disorder, during the pendency of the appeal (even if it has since resolved). (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and discuss the stressor(s) upon which the diagnosis is made. The examiner must address in his/her report the private diagnosis of PTSD contained within the Military Family Clinic records from 2016 and the November 2015 letter from Dr. FG. (b.) If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. (c.) As to any other diagnosed acquired psychiatric disorders, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the 1980s assault. A copy of the claims file must be provided to the examiner and reviewed. This should be reflected in the corresponding report. A copy of this remand should be provided to the examiner. The Board has made the factual finding that the 1980s assault occurred, as described in the Reasons and Bases section of this decision. The examiner must accept this as fact in reaching any medical conclusions. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his/her opinion. 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 a conclusion as it is to find against it. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. 4. Obtain an addendum opinion from the September 2016 VA examiner to clarify the findings in his examination report regarding a medical opinion under 38 U.S.C. § 1151 for a right elbow condition. The examiner should address the following: (a.) Did the Veteran have a right ulnar nerve condition when he presented to the emergency room in March 2010? (b.) Based on the finding of the existence of a right ulnar nerve condition in March 2010, did the Veteran have additional disability after the December 1, 2010 right ulnar nerve decompression? If so, identify the additional disability. (c.) If the answer to (b) is yes, is the additional disability due to: (i) carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of the VA prior to and in furnishing surgical treatment, or (ii) an event not reasonably foreseeable. (d.) Clarify the rationale behind the opinion that “while it seems reasonable to me that the nerve injury was advanced at the time of diagnosis and that surgical release would only result in partial improvement (as happened), the extent of the nerve damage was not appreciated at the initial two encounters with the VA medical team, so an expedited course of action was not taken.” To this end, clarify whether the Veteran’s surgery could have improved his condition had it been expedited.   [If, and only if, the September 2016 VA examiner is unavailable and the examiner assigned to provide the addendum opinion requested above finds it necessary, then the Veteran must be provided additional VA examination with the directives contained above.] Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel