Citation Nr: 18145267 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-40 639 DATE: October 26, 2018 ORDER Entitlement to service connection for residuals, mild traumatic brain injury (TBI) is granted. Entitlement to an effective date, prior to January 7, 2016, for assignment of a 30 percent disability rating for right shoulder disorder, is dismissed. REMANDED Entitlement to service connection for a speech disorder, as secondary to residuals, mild TBI, is remanded. Entitlement to service connection for tinnitus, as secondary to residuals, mild TBI, is remanded. Entitlement to service connection for a headache disorder, as secondary to residuals, mild TBI, is remanded. Entitlement to service connection for an acquired psychiatric disorder, as secondary to residuals, mild TBI, is remanded. Entitlement to service connection for a balance disorder, as secondary to residuals, mild TBI, is remanded Entitlement to a total disability rating indicating unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran’s residuals, mild traumatic brain injury is attributable to an in-service incurrence. 2. On August 2, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through her authorized attorney, that a withdrawal of the claim of entitlement to an effective date, prior to January 7, 2016, for assignment of a 30 percent disability rating for right shoulder disorder, is requested. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, residuals, mild traumatic brain injury was incurred in service. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for withdrawal of a claim by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2008 to May 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal of March 2015 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In November 2015, the Veteran requested to testify at a Board videoconference hearing. However, the Veteran’s attorney withdrew the Board hearing request in May 2016. See May 2016 VA Form 9. Hence, the request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(d). A review of the record reveals that the issues in this case have been characterized in various ways. As reflected above, the Board has recharacterized issues to address most fully and most efficaciously the benefits sought by the Veteran as evinced in the evidence of record. In this respect, the Board observes that the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptom, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Dismissal of a Claim Right Shoulder The Board may dismiss any claim which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A claim may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). In the present case, the Veteran, through his/her authorized attorney, has withdrawn the claim of entitlement to an effective date, prior to January 7, 2016, for assignment of a 30 percent disability rating for right shoulder disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration as to this claim. Service Connection Residuals, Mild TBI The Veteran avers that an in-service head injury caused her current residuals, mild TBI. The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence - about what this evidence shows, or fails to show, about the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 U.S.C. § 1154(b), the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease is reduced. See Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996). Review of the evidence of record shows that the Veteran’s active service did not include combat, therefore this provision is not for application in this case. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidences submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). 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 will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A review of the Veteran’s service treatment records (STRs) reveals that the Veteran was treated at the emergency department of M.I. Hospital, a private facility, in February 2009 for a head injury, reported at acuity level 3 of 3. A physician noted that she had sustained a head injury, as evidenced by a forehead contusion. At the time of emergency treatment, the Veteran conveyed that a co-worker had hit her head with a black hawk engine, adding that the engine “popped her in the face a few times.” In a May 2011 statement, revived the following month, the Veteran wrote that since her head injury, she has been experiencing blackout spells, dizziness, and clumsiness. She also reported an on-going sensation of a “high-pitched fuzzy buzzy noise,” which inhibited her concentration; induced headaches; and caused nausea. In October 2014, the Veteran conveyed that she had received treatment over the prior 9 months for TBI and secondary conditions. The Veteran was afforded a VA examination in November 2011. The examiner took note of the Veteran’s in-service contusion caused by facial impact with a black hawk engine. A review of the VA treatment records show that the Veteran sought on-going care for symptoms which she attributed to TBI. Throughout the course of treatment, several clinicians opined that she had a history of TBI. During mental health consultations which spanned several years, the Veteran reiterated the account of her head injury and its complications. Clinicians noted her symptoms and complaints. The Veteran also availed herself of clinical and social work services of the polytrauma/TBI clinic; clinicians emphasized that the Veteran’s complaints were handled in an interdisciplinary manner—addressing somatic and psychological symptomatology. The Board observes that the Veteran’s 2014 treatment records are prefaced with a “problem list,” which includes impaired cognition and disturbance of consciousness. In January 2015, an VA examiner derived a diagnostic impression of mild neurocognitive disorder, based upon diagnostic testing. The examiner also reported that Veteran’s host of subjective impressions as well as her reports of discernable symptoms. In August 2015, a VA mental health examiner continued the diagnostic impression of mild neurocognitive disorder, noting this this disorder (along with contributing mental health disorder) presented occupational and social impairment with reduced reliability and productivity. Findings in an August 2016 examination largely mirrored those of the January 2015 examiner. In January 2017, Dr. S., a private neurologist, submitted a medical review and opinion. He reviewed the claims file; considered the Veteran’s subjective accounts; addressed primary medical literature and medical schematics; and derived a diagnostic and etiological opinion. Noting the developmental trajectory of the Veteran’s in-service head injury, he opined that her associated symptoms reflect endocrine-hormonal dysfunction. In short, the Veteran had a twin miscarriage and has experienced irregular menstrual cycles since her head injury. Also, her weight has fluctuated dramatically. Concerning sensory perception, he reported that the Veteran endorsed decreased olfactory acuity and—at times—parosmia. Upon review of results of May 2014 neuropsychological testing, Dr. S. took note of the Veteran’s impaired non-verbal memory and impaired spatial orientation. This, according to his account, represents a cognitive pattern known as “scatter” and is “typically seen in [cases] of traumatic brain injury.” Based upon the totality of his findings, Dr. S. emphasized that the symptomatology over time in the realms of cognition, behavior, emotional expression, and neuro-endocrine manifestations suffered from a concussion when the black hawk engine hit her head. Moreover, he reported that scientific studies have confirmed the co-morbidity of TBI and neuro-endocrine dysfunction. Additionally, Dr. S. illustrated his points with brain schematics to map the location of the Veteran’s head injury, underscoring the vulnerability of the frontal and temporal brain lobes as well as the hypothalamic axis. Schematically, this highlights the inter-relations between memory, behavior and emotion and the entire hormonal-endocrine complex. Dr. S. mentioned that the Veteran’s diminished olfaction and parosmia are but one appreciable example of the way in which frontal skull impact “sheared” the fine olfactory fibers just anterior to the pituitary gland. In summation, Dr. S. wrote that that Veteran suffered a mild traumatic brain injury, resulting from a brain concussion secondary to an engine impacting her skull two times in a contracted period. The Board places great probative weight in Dr. S.’s diagnostic and etiological opinion in that it lucidly considers the Veteran’s symptomatology over time in the realms of cognition, behavior, emotional expression, and neuro-endocrine manifestations. Moreover, Dr. S. contextualizes his opinion within the schematics of the human brain, highlighting how an impact to the skull has multiple psychological, physiological, and hormonal implications. The Board observes that many of these respective implications are “born out” in the medical evidence of record, from reports of the Veteran’s gynecological treatment to behaviors, which VA mental health clinicians observed during the Veteran’s course of on-going treat. The Board recognizes that VA examiner have not provided diagnostic impressions of residuals, mild traumatic brain injury. However, the VA examinations were limited in scope, as to the Veteran’s service, subjective accounts, and immediate findings. While the Board assigns a modicum of probative value to the respective VA examination findings, as noted above, it assigns greater weight to Dr, S.’s opinion as it approaches the Veteran’s disorder holistically, to include the complex inter-relations between lobes of the brain, which are necessarily implicated in an injury to the skull. Hence, the Board accepts Dr. S.’s diagnostic and etiological opinion as both the current disability and nexus prongs of establishing service connection. See Holton, supra. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that the Veteran’s current residuals, mild traumatic brain injury were caused by the February2009 in-service head injury. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Speech Disorder Tinnitus Headache Disorder Acquired Psychiatric Disorder Balance Disorder TDIU Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In her November 2015 substantive appeal (VA FORM 9), the Veteran contended that she is entitled to service connection for speech disorder, tinnitus, headache disorder, acquired psychiatric disorder, and balance disorder as secondary to residuals, mild traumatic brain injury. Moreover, the Veteran avers that her disability picture, in light of these and other claims, warrants entitlement to a TDIU. The Board observes that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the evidence of record does indicate that the Veteran has complained of, and sought treatment for the above-noted disorders. As VA adjudicators are not free to ignore or disregard the medical conclusions of a 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), new VA examinations are required to address the Veteran’s claims as to the proximate cause of the noted disorders. The Board further observes that the issue of entitlement to a TDIU is inextricably intertwined with the issue on appeal. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed, Cir, 2001) (where the facts underlying separate claims are “intimately connected,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Hence, a thorough consideration of the TDIU claim must be deferred pending the directed development and subsequent re-adjudication of the Veteran’s other secondary claims. The matters are REMANDED for the following action: 1. Contact the Veteran and her attorney and request that they provide or identify and authorize the recovery of any additional records of treatment for speech disorder; tinnitus; headache disorder; acquired psychiatric disorder; or balance disorder. If obtained, associate these treatment records with the claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Arrange for VA examinations with an appropriate examiner or examiners with medical expertise in speech disorders; tinnitus; headache disorders; acquired psychiatric disorders; and balance disorders. The evidentiary record, including a copy of this remand, must be made available and reviewed by the examiner or examiners. Upon completion of a review of the evidence, the examiner (examiners) is asked to respond to the following inquiries: a. What diagnostic impression, if any, are apposite or best approximates a speech disorder; a headache disorder; and a balance disorder. Upon assignment of diagnostic impressions, if any, the examiner must answer whether it is at least as likely as not (50 percent probability or more) that each respective diagnosed disorder, if any, was proximately caused by, or aggravated by residuals, mild traumatic brain injury. AND b. Is it as least as likely as not (50 percent probability or more) that tinnitus or acquired psychiatric disorder was (or were) proximately caused by, or aggravated by residuals, mild traumatic brain injury? The Veteran and her attorney must be notified that it is his responsibility to cooperate in the development of the claim. The consequences for failure to cooperate in the development of a VA opinion without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. For all opinions, complete rationales should be provided. The examiner (or examiners) should reconcile any opinion with all other clinical evidence of record and the Veteran’s and other lay evidence. The Board notes that the Veteran is competent to report her symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner (or examiners) rejects the Veteran’s reports, she/he must provide an explanation for such rejection. 4. Upon completion of the above review of the expanded record, readjudicate the Veteran’s claim for entitlement to a TDIU. If any determination remains averse to the Veteran, the Veteran and her attorney should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. J. Komins, Associate Counsel