Citation Nr: 18147093 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-38 878 DATE: November 2, 2018 ORDER Entitlement to service connection for residuals of traumatic brain injury (TBI) is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to an initial rating in excess of 20 percent for right shoulder strain is remanded. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The probative evidence of record indicates that the Veteran had a TBI during his active service and that he currently has residuals of that TBI. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a TBI are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2000 to November 2000 and from September 2005 to November 2006. Entitlement to service connection for residuals of TBI The Veteran contends that he suffered a TBI during his active service and that he continues to experience residuals from that injury. Specifically, he has stated that on at least two occasions during a deployment to Iraq in his second period of active service he was hit in the head with debris from mortar attacks. He asserts that he was exposed to concussive forces from the mortar blasts themselves, and that he felt dazed and confused and saw stars immediately after being hit in the head with debris. Additionally, he had a short loss of consciousness at least once. He did not seek treatment for the injuries because they occurred in the field and did not require stitches or any other such immediate medical attention. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. With regard to an in-service event, the Veteran’s service treatment records are absent for evidence of complaints of or treatment for a head injury. An October 2006 post-deployment health assessment reflects that the Veteran felt his health stayed about the same or got better during his deployment to Iraq. He also reported that he did not ever feel he was in great danger of being killed. However, the Veteran’s DD Form 214 for his second period of active service reflects that he served in a designated imminent danger pay area during that period. In addition, the Veteran has submitted a statement from [redacted], who states that he served with the Veteran in Iraq, that their station in Iraq sustained incoming mortar attacks on a daily basis, and that the Veteran told him about feeling confused after being knocked to the ground by a mortar impact. Mr. [redacted] also states that he saw scrapes on the side of the Veteran’s face where the Veteran said debris from mortar attacks had hit him, and that it was rare for service members to seek treatment after explosive events and attacks unless there was an obvious life or death injury. Given the information included in the Veteran’s DD Form 214, the Board finds no reason to doubt his account that he was subjected to mortar attacks and was hit in the head with debris from those attacks. The Board also finds no reason to doubt Mr. [redacted] account, which supports the Veteran’s report of having been thrown to the ground and hit in the head by debris in a mortar attacks during his second period of active service. Therefore, the Board finds the Veteran to be credible in that regard and concludes that there is probative evidence that the Veteran suffered an in-service head injury. See 38 U.S.C. § 1154(a). Accordingly, the question remaining for consideration is whether the Veteran has a current disability that is related to the in-service head injury. An October 2016 VA treatment note reflects that the Veteran was diagnosed with mild neurocognitive disorder due to TBI. A private treatment record dated in April 2017 notes the Veteran’s report of having been hit in the head by debris during his period of active service, which caused a brief loss of consciousness and left him dazed for a period. The Veteran recalled having problems with memory and multitasking when he separated from the National Guard in 2009. In addition, the attending physician noted a September 2016 brain MRI that showed some nonspecific areas of signal abnormality in the Veteran’s subcortical white matter. On mental status examination, the Veteran was oriented to person, place, and time, but reported impaired recent memory. The physician concluded that the Veteran had neurologic symptoms dating back to the in-service TBIs, and that the in-service TBIs might explain the minor changes noted on the Veteran’s brain MRI. The Board accepts the October 2016 VA treatment note April 2017 private treatment note as probative evidence that the in-service injury may be considered a TBI, and that the in-service TBI is the cause of the Veteran’s current reported neurocognitive disorder. In summary, the probative evidence of record indicates that the Veteran had a TBI during his active service and that he currently has residuals of that TBI. In view of the foregoing, the Board finds that the criteria for entitlement to service connection for residuals of a TBI have been met, and that entitlement to service connection for residuals of a TBI must therefore be granted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. The Veteran seeks entitlement to service connection for a neck disability, which he contends had its onset during his active service. The Veteran’s service treatment records reflect that in September 2006 his cervical spine active range of motion was within normal limits, but that he had pain at the end of the range of motion. In addition, he reported swollen, stiff, or painful joints on the October 2006 post-deployment health assessment. A May 2017 cervical spine MRI revealed disc osteophyte complexes at C4-C5 through C6-C7 producing moderate central canal stenosis. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a neck disability because no VA examiner has opined whether the Veteran’s current osteophytes and central canal stenosis of the cervical spine may be related to the in-service complaints of painful cervical spine range of motion and swollen, stiff, or painful joints.   2. Entitlement to service connection for a right ankle disability is remanded. The Veteran seeks entitlement to service connection for a right ankle disability, which he contends began after he jumped out of a truck during his active service. The service treatment records reflect that he reported swollen, stiff, or painful joints on the October 2006 post-deployment health assessment. An August 2014 right ankle MRI revealed a trace amount of fluid surrounding the peroneal tendons, which may reflect tenosynovitis, but no significant tendinopathy or focal tendinous tear. In January 2015, a VA podiatrist diagnosed the Veteran with peroneal tendonitis. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a right ankle disability because no VA examiner has opined whether the Veteran’s current right ankle disabilities may be related to the reported injury the Veteran sustained when he jumped out of a truck. 3. Entitlement to service connection for bilateral hearing loss and tinnitus are remanded. In April 2015, a VA examiner reviewed the record and provided an opinion as to the Veteran’s reported bilateral hearing loss and tinnitus using the Acceptable Clinical Evidence (ACE) process. The examiner opined that the Veteran’s hearing loss and tinnitus were less likely related to noise exposure in service. As a rationale for that opinion, the examiner noted that the Veteran’s hearing was within normal limits both at entrance and separation from active service, that no significant threshold shifts occurred during the Veteran’s active service, and that there is little evidence to support the suggestion of delayed onset hearing loss and tinnitus. The examiner explained that no longitudinal studies have been conducted that have examined patterns of hearing loss over time and that the Institute of Medicine determined in 2005 that delayed-onset hearing loss is extremely unlikely. In January 2018, the Veteran’s representative submitted copies of medical articles that, in general, reflect that sensorineural hearing loss may develop at some time after an initial exposure to noise. Those articles appear to contradict the April 2015 VA examiner’s findings. In addition, it is unclear from the record whether the Veteran has a current hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. The Board finds that the issue must be remanded so that the Veteran may be provided an in-person VA examination to determine whether he currently has a hearing loss disability for VA purposes, and to obtain a new VA opinion in consideration of the evidence submitted in January 2018. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks entitlement to service connection for sleep apnea, which he contends is related to sleeping problems he had during his active service or, in the alternative, was caused or aggravated by weight gain that was in turn caused by his service-connected disabilities. A May 2017 VA treatment note reflects that the Veteran has been diagnosed with moderate obstructive sleep apnea/hypopnea syndrome based on a sleep study. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea because no VA examiner has opined whether the Veteran’s current sleep apnea may have had its onset during his active service or whether the Veteran’s weight gain may have acted as an intermediate step connecting his sleep apnea to his active service. 5. Entitlement to an initial rating in excess of 20 percent for right shoulder strain is remanded. Although the record contains a contemporaneous VA examination regarding the Veteran’s right shoulder strain, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements. Therefore, a remand is required so that the Veteran may be provided a new examination that includes all range-of-motion testing required. 6. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. A May 2014 VA mental health physician note states that the Veteran was referred from the Vet Center in Martin, South Dakota, where he had a session with a counselor. A remand is required to allow VA to request those potentially relevant records. 7. Entitlement to a TDIU is remanded. The outcome of the other issues being remanded could have a significant impact on the Veteran’s appeal for entitlement to a TDIU. As such, the TDIU issue is inextricably intertwined with those other issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Therefore, the Board finds that the other issues being remanded must be adjudicated prior to appellate consideration of entitlement to a TDIU. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the Vet Center in Martin, South Dakota. After authorization is received, obtain any treatment records dated in or around May 2014 through the present. Document all requests for information as well as all responses in the record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck disability and/or right ankle disability. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that each such disability is related to an in-service injury, event, or disease. For any such neck disability, consideration must be given to the September 2006 service treatment record reflecting that the Veteran’s cervical spine active range of motion was within normal limits, but that he had pain at the end of the range of motion, and to the October 2006 post-deployment health assessment reflecting that the Veteran reported swollen, stiff, or painful joints at that time. The examiner must provide the above-described opinion at least in relation to the disc osteophyte complexes at C4-C5 through C6-C7 and their resulting moderate central canal stenosis, as shown on the Veteran’s May 2017 cervical spine MRI. For any such right ankle disability, consideration must be given to the October 2006 post-deployment health assessment reflecting that the Veteran endorsed swollen, stiff, or painful joints at that time, and to the Veteran’s reports of having jumped out of a truck during his active service. The examiner must presume the Veteran to be credible as to that report regardless of whether his service treatment records show complaint of or treatment for a right ankle condition. The examiner must provide the above-described opinion at least in relation to the trace fluid surrounding the peroneal tendons shown on the Veteran’s August 2014 right ankle and foot MRI, and the January 2015 diagnosis of right peroneal tendonitis. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hearing loss disability. If audiological testing reveals a hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385, then the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the hearing loss disability is related to an in-service injury, event, or disease, including in-service exposure to noise. In that regard, the examiner must accept as credible the Veteran’s reports of being exposed to noise from gunfire and mortars during his deployment to Kuwait and Iraq. Consideration must be given to the medical articles submitted by the Veteran’s representative in January 2018, which appear to state that sensorineural hearing loss may develop at some time after an initial exposure to noise. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s diagnosed sleep apnea. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is related to an in-service injury, event, or disease, including the Veteran’s reported in-service sleep problems. If not, the examiner must further opine as to whether it is at least as likely as not that the Veteran’s service-connected disabilities, to include his residuals of traumatic brain injury, posttraumatic stress disorder, and/or right shoulder strain, caused him to gain weight. If so, the examiner should then opine as to a) whether the Veteran’s weight gain was a substantial factor in causing the Veteran’s sleep apnea and b) whether the Veteran’s sleep apnea would not have occurred but for the weight gain caused by the service-connected disabilities. 5. Schedule the Veteran for an examination as to the current severity of right shoulder strain. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right shoulder strain alone and discuss the effect of the Veteran’s right shoulder strain on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. J. Anthony, Counsel