Citation Nr: 18151144 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-46 184 DATE: November 16, 2018 ORDER Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a left knee condition, claimed as degenerative joint disease (DJD), is denied. Entitlement to service connection for chronic bronchitis is denied. Entitlement to service connection for a traumatic brain injury (TBI) is granted. REMANDED Entitlement to a rating higher than 10 percent for degenerative disc disease (DDD) of the lumbar spine with thoracic spine scoliosis is remanded. Entitlement to a rating higher than 10 percent for sinusitis is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to a rating higher than 10 percent for gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS) is remanded. Entitlement to a compensable rating for essential tremors is remanded. Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD), to include alcohol abuse in remission and history of personality disorder, is remanded. FINDINGS OF FACT 1. The most probative evidence of record does not show a current diagnosis of a left knee, right hip, or chronic bronchitis disability. 2. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s TBI diagnosis was incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right hip condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. 2. The criteria for entitlement to service connection for a left knee condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303. 3. The criteria for entitlement to service connection for chronic bronchitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Marine Corps from November 1997 to September 2014. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a right hip condition. 2. Entitlement to service connection for a left knee condition (claimed as degenerative joint disease.) 3. Entitlement to service connection for chronic bronchitis. Review of the Veteran’s service treatment records shows the Veteran experienced joint pain in the right hip and left knee in approximately 2014. He did not report an injury but noted symptoms after a fitness run and increased back pain that radiated to his hip. X-rays of the hip conducted in February 2014 were normal. In May 2014, his hip pain improved because of physical therapy. He also complained of pain in his left knee and an MRI was conducted in October 2006 and X-rays in February 2007; both were both normal. X-rays of the chest in June 2008 showed mild peribronchial cuffing, which the examiner indicated may represent bronchitis. Records dated November 2011 showed an episode of bronchitis; he complained of a dry cough, runny nose, sinus pressure, and headaches. The cough was worse at night and caused tightness in his chest. The Veteran was afforded a general separation health assessment in August 2014 in which the examiner discussed all his reported conditions and symptoms, including left knee, right hip, and bronchitis. A disability benefits questionnaire (DBQ) was completed for the knee and the Veteran reported a hyperextension injury in 2006, which caused ongoing pain, swelling, locking, and popping. He was treated for a knee strain and referred to physical therapy. On examination, range of motion was normal and there was no objective evidence of painful motion or functional impairment. There was no instability, subluxation, or any other physical findings or conditions related to a knee condition. The examiner did not provide a diagnosis based on results from x-rays conducted in February 2006 and August 2014 showing no arthritis and a normal MRI in November 2006. A DBQ was also completed for the hip as part of the August 2014 exam and the Veteran reported onset of hip pain in 2013 treated with both physical therapy and chiropractic manipulation without relief. He noted that his hip pain was relieved with walking for half to one mile. Range of motion was normal and there was no objective evidence of painful motion or functional impairment. Muscle strength was normal and there were no other noted symptoms. The examiner indicated the Veteran’s hip examination and x-rays were both normal and therefore, there was insufficient evidence to render a diagnosis. As for the Veteran’s bronchitis claim, the examiner did not provide a diagnosis because he had a normal lung exam and chest x-ray, and never had a productive cough for longer than three months. He was found to have acute bronchitis on a June 2008 chest x-ray; the examiner found his condition to be resolved as he was not on any medication for bronchitis. Very few post-service records are associated with the file and those available did not discuss any of the above claimed conditions. Based on the foregoing, the Board finds that service connection for a right hip, left knee or chronic bronchitis is not warranted. In making this determination, the Board highlights that the first element required for service connection is the existence of a current disability. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Without a current disability, service connection cannot be granted. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (finding that the requirement of having a current disability is met “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim”); Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability). The Veteran is competent to describe pain and other observable symptoms; however, he does not possess the requisite skill to diagnose any musculoskeletal or respiratory condition. Thus, the appeals for both the hip, knee and bronchitis must be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a traumatic brain injury (TBI) The Veteran contends that he currently suffers from the residuals of a TBI. In this regard, the Veteran has reported on numerous occasions that he experienced the results of explosions during combat in the field, being rattled around in vehicles that were hit. He also noted several seizures during service in 2009, 2011, and 2012. The Veteran is competent to recount such occurrence, as it is in the realm of first-hand experience, and he is found to be credible, as his narratives have remained consistent and are consistent with the facts and circumstances of the combat environment in which he served. A review of the Veteran’s service treatment records shows he had positive TBI screening in December 2013 and following an evaluation, a confirmed diagnosis of TBI. The evaluation was conducted in January 2014 and the physician noted a mild traumatic brain injury, after reviewing two reports from MRIs of the Veteran’s brain conducted in 2011 and 2012 and interviewing the Veteran. He reported several head injuries with symptoms that were consistent with mild TBI with post-concussive syndrome without chronic sequela. The physician noted that the it was not possible to distinguish between symptoms of PTSD and TBI at that time. The MRI reports mentioned several nonspecific deep white matter lesions and did not show significant change. The physician indicated the findings were not nonspecific that could not be proved to be directly to his history of head injuries. A DBQ for residuals of TBI was conducted in August 2014 and the Veteran reported initial TBI in high school. As for his time in service, he was hit in the head with a crowbar and lost consciousness for less than one minute; he was also within 15 yards of at least 17 IEDs during his deployment in 2010. He complained of feeling dazed, tinnitus, and hearing loss. He was diagnosed with a mild TBI in December 2013. Residual symptoms included mild memory loss, mild or occasional headaches, and anxiety. An MRI conducted in January 2014 showed no significant changes in the multiple T2/flair hyperintensities within periventricular and subcortical white matter. Clarification to the August 2014 VA examination was submitted in February 2015 and the examiner noted the Veteran had a mild TBI that resolved without residuals. There were no functional limitations, objective memory problems, or any other delayed symptoms due to mild TBI. The Veteran was provided a VA examination in March 2015 and reported exposure to several explosions including IEDs, RPGs, and mortar attacks. On one occasion he noted that an IED hit the car ahead of him and he experienced bleeding in the ear, disorientation for about 15 minutes, and had trouble with his vision. There was no medical follow-up for his condition. Prior to the military, the Veteran experienced two TBIs in his youth. Upon a review of the claims file, subjective interview, and objective testing, the examiner diagnosed a TBI, tinnitus, and Jacksonian seizures. The Veteran experienced tinnitus, altered sense of smell or taste, headaches, and seizures which were attributable to his TBI diagnosis. An MRI conducted in May 2014 indicated the Veteran had multiple deep subcortical/periventricular non-enhancing white matter lesions some of which were very close to the corpus callosum. The examiner indicated these findings were nonspecific and differential considerations included multiple sclerosis and ADEM vasculitis. The notes indicated that it was less likely sequelae resulted from chronic small vessel ischemic changes. Results from the mini-mental state examination (MMSE) were normal; the Veteran obtained a score of 30. Ultimately, the examiner found that the Veteran had a current diagnosis of TBI that was incurred or caused by injuries during while on active duty. “Veteran had two TBI occurrences during his pre-enlistment teenage years. However physical exams at the time of Veteran’s enlistment to the USMC and followup examinations revealed no sequelae of those TBI events. Veteran has reported a number of explosions in a period of one week in 7/2010 that resulted in disorientation and bleeding from the ear. Veteran’s memory of the details of the rest of the explosions is fuzzy but this can be the result of mild disorientation that continued for a period of time. The reported sequelae of the TBI of 7/2010 are headaches, tinnitus, seizures and smell/taste problems. Although one may consider the fact that Veteran has psychiatric conditions that could explain the above sequelae it is as likely as not that they are related to the TBI of 7/2010. In addition the Veteran has stable lesions in his brain discovered in repeated MRIs between 2011 and 2014.” The Board finds, upon resolving all reasonable doubt in the Veteran’s favor, service connection for a TBI is warranted. The Veteran is shown to have a current diagnosis during the relevant appeal period of TBI as per his service treatment records and VA examinations. Additionally, it is noted that the Veteran has provided credible testimony of his experiencing the results of a IED, and, mortar attacks in the field which caused temporary disorientation and bleeding in the ear. Therefore, the issue turns upon a showing of nexus between the Veteran’s TBI and his in-service explosion injury. Here, there is both probative medical evidence for and against the contention that the Veteran’s TBI is etiologically related to his military service. The evidence against a finding of nexus has been provided via the August 2014 separation DBQ, whereas evidence in favor of a finding of nexus has been provided via the assessment provided by the March 2015 VA examiner. In this regard, the Board notes that the separation DBQ and VA examination were provided by trained and skilled individuals within the relevant medical fields and they thoroughly reviewed the Veteran’s claims file. However, it is important to note that the August 2014 examiner indicated the Veteran’s TBI resolved without residuals but later provided a diagnosis of TBI with residual complaints of memory loss. Therefore, as the March 2015 VA examiner provided an opinion with a complete supporting rationale, the Board finds the opinion to be more probative. Given the current diagnosis of TBI, the competent and credible account of the in-service explosion injury, and the probative medical evidence in with regard to etiology, any reasonable doubt is resolved in favor of the Veteran and service connection for TBI is granted. REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for degenerative disc disease (DDD) of the lumbar spine with thoracic spine scoliosis is remanded. 2. Entitlement to a rating higher than 10 percent for sinusitis is remanded. 3. Entitlement to a compensable rating for allergic rhinitis is remanded. 4. Entitlement to a rating higher than 10 percent for gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS) is remanded. 5. Entitlement to a compensable rating for essential tremors is remanded. 6. Entitlement to a rating higher than 30 percent for post-traumatic stress disorder (PTSD), to include alcohol abuse in remission and history of personality disorder is remanded. As for the Veteran’s increased rating claims, VA examinations for his lumbar spine, sinus, gastrointestinal, neurological, and mental health conditions were last performed in August 2014. Given that the Veteran has noted his symptoms have worsened and these examinations were more than four years ago, the Board finds that the current evidence of record does not adequately reveal the present state of either the Veteran’s service connected disabilities. Therefore, on remand, new examinations should be scheduled to determine the current severity of his conditions. While on remand, any relevant VA and private treatment records should be sought. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment record relevant to the claims still on appeal. 2. Schedule the Veteran for a VA examination with appropriate medical professionals to determine the current severity of his service connected DDD of the lumbar spine, sinusitis, allergic rhinitis, essential tremors, GERD, IBS, and PTSD. All indicated tests and studies should be accomplished and the findings reported in detail. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel