Citation Nr: 18151167 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-28 698 DATE: November 16, 2018 ORDER Entitlement to service connection for traumatic brain injury (TBI) residuals is granted. REMANDED Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s TBI residuals began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for TBI residuals have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from August 1973 to January 1976 and September 1976 to November 1977. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. On April 3, 2018, and April 12, 2018, the Veteran elected to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. See April 2018 RAMP OPT-IN ELECTION Forms. However, the RAMP Fact Sheet that accompanied the RAMP election form delineated which appeals are eligible for RAMP processing; crucially, compensation-related appeals certified to the Board and activated through formal placement on the Board’s docket are excluded and remain pending in the current (legacy) appeals process. This appeal was activated at the Board in March 2018, so the subsequent RAMP election is untimely. See February 2018 VA Form 8 (appeal certified to the Board); March 2018 Board Letter (activated at the Board). Thus, this decision has been written consistent with the legacy, not AMA, framework. A notice of disagreement has been received with regard to the effective date and rating assigned to the Veteran’s service-connected depressive disorder, granted in a June 2018 rating decision. However, as VA’s recording system shows that the RO acknowledges the notice of disagreement, the Board does not currently have jurisdiction over this matter. 1. Service Connection for TBI Residuals Direct service connection generally requires evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). The June 1973 entrance examination indicated that the Veteran had never had any broken bones, head injuries, or periods of unconsciousness. Service treatment records and military personnel records document a December 1976 motor vehicle accident, during which the Veteran sustained multiple injuries, including injuries to the head and a period of unconsciousness. See December 5, 2017, record (fractured femur, corneal abrasion, multiple fractured teeth, fractured ulna); December 2017 Transfer Narrative Summary (patient was unconscious, had multiple lacerations about the face, and was unable to open his right eye for a while). The Veteran recalled that he hit his head and went through the windshield. See December 2014 VA TBI examination. The Veteran was discharged from the hospital nearly three months later and his unit commander documented the Veteran’s subsequent decline. Specifically, the unit commander reported that, after the Veteran was discharged from the hospital: (a) he began a rapid decline in efficiency and conduct; and (b) his whole attitude toward the military and his personal responsibilities significantly changed and recently became obvious (reported late for duty, had a short-fused temper that he attacked anyone with, had developed an alcohol problem that contributed to many acts of misconduct). See May 1977 Unit Commanders Report for Psychiatric Examination. When sent for psychiatric evaluation, the Veteran failed to comply with requests to schedule psychological testing; however, the provider diagnosed passive-aggressive personality. See October 1977 Report of Psychiatric Evaluation. The Veteran was afforded a December 2014 VA TBI examination, during which the provider opined that the Veteran has never had a TBI. The Veteran reported hitting his head, going through the windshield, amnesia of less than 24 hours following the accident, and progressively worsening memory issues since then; however, the provider opined, without rationale, that the memory issues are most consistent with the Veteran’s history of alcohol abuse and that any emotional, behavioral, and cognitive signs or symptoms (including the memory issues) are part of mental health issues, not TBI residuals. Of note, the provider also reported that the Veteran was confabulating during neuropsychological testing. The Board highlights that brain damage due to head trauma is among the risk factors for amnesia and confabulation (memory disturbance in which a person confuses imagined scenarios with actual memories with no intent to deceive). See Amnesia, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/amnesia/symptoms-causes/syc-20353360?p=1, last accessed October 11, 2018; see also Confabulation, PsychCentral, https://psychcentral.com/encyclopedia/confabulation/, last accessed October 11, 2018. Due to the examiner’s lack of rationale and failure to consider potentially favorable evidence, the Board finds this opinion to be of low probative value. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In an April 2017 Disability Benefits Questionnaire, private provider, Dr. JM, diagnosed the Veteran with: (a) diffuse TBI; (b) major neurocognitive disorder due to TBI with behavioral disturbance; (c) dysthymic disorder; and (d) alcohol dependence in remission. The provider noted that he could distinguish the symptoms attributable to the major neurocognitive disorder due to TBI with behavioral disturbance (decreased focus, increased distractibility, inattention, repetitiveness, awareness of social cues, decreased memory) from those attributable to the dysthymic disorder (sadness, anger/irritability, decreased interests, social withdraw, hopelessness, motivation) and to the alcohol dependence (in remission). The provider noted that the medical records documented traumatic head injuries in the 1976 accident, but that there was no actual TBI diagnosis in hospital records because the associated personality and behavior changes did not show up until he was discharged from the hospital nearly three months later. The examiner opined that the Veteran was never fully diagnosed in service probably because of the lack of appreciation for neuropsychological sequelae of TBI in the mid-1970s; the provider concluded that the Veteran’s post-accident impairments (personality, cognitive, and interpersonal) led to substance abuse, career failures, and impulse/aggressive behaviors from which he never recovered. This provider’s diagnosis is supported by VAMC treatment records showing that the Veteran is followed by Drs. PP and JM for treatment of dysthymic disorder, major neurocognitive disorder, and TBI. See October 2017 North Florida/South Georgia VAMC record. Due to the examiner’s rationale and supporting lay and medical records, the Board finds this opinion to be of higher probative value than the December 2014 VA examiner’s opinion. In sum, the preponderance of the evidence weighs in favor of finding that the Veteran experienced a TBI during the accident and that his TBI residuals began during active service. Accordingly, service connection is granted. REASONS FOR REMAND 2. TDIU The Veteran generally contends that service-connected disabilities have precluded obtaining and/or maintaining a substantially gainful occupation since December 17, 2006. See May 2009 Social Security Administration Decision; May 2013 Correspondence; June 2014 VA Form 21-8940; September 2014 Correspondence; October 2014 Correspondence; February 2015 NOD; February 2018 Statement; June 2018 VA Mental Disorders Examination. Through the decision herein, the Board has granted service connection for TBI residuals (percent to be determined by the AOJ); when implemented by the AOJ, this grant will alter the combined evaluation for compensation, which determines when eligibility for schedular consideration of TDIU begins. Further, as the evidence contends unemployability due to functional loss caused, in part, by the TBI residuals, which have not yet been given an effective date or rated by the AOJ, the Board is unable to adjudicate the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue); April 2017 Disability Benefits Questionnaire by Dr. JM (major neurocognitive disorder due to TBI with behavioral disturbance affects school, work, judgment, and some family relations; occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood). Thus, this issue is remanded for readjudication by the AOJ after implementation of this decision. The matter is REMANDED for the following action: 1. Implement the grant herein of service connection for TBI residuals. (Continued on the next page)   2. Readjudicate the TDIU claim. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel