Citation Nr: 18151302 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 10-43 528 DATE: November 19, 2018 ORDER Service connection for unspecified neurodevelopmental disorder is granted. FINDINGS OF FACT 1. A cognitive disorder, diagnosed as unspecified neurodevelopmental disorder, clearly and unmistakably existed prior to the Veteran’s entry to active service. 2. The evidence does not clearly and unmistakably show that the Veteran’s pre-existing unspecified neurodevelopmental disorder was not aggravated by his traumatic brain injury (TBI) during his second period of active duty. 3. Resolving all doubt in his favor, the Veteran’s unspecified neurodevelopmental disorder was incurred in service. CONCLUSION OF LAW The criteria for service connection for unspecified neurodevelopmental disorder have been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1994 to February 1997 and from January 2003 to June 2003, with additional service in the Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Veteran and J.R. testified at a Board hearing before a Veterans Law Judge who is no longer at the Board. A transcript of the hearing is associated with the record. In September 2016, and again in October 2018, the Veteran indicated that he did not wish to testify before a different Veterans Law Judge who would decide his case. In December 2013, the Board remanded the case for additional development and, in November 2016, denied the claim. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In January 2018, the Court granted the Veteran’s and the Secretary of VA’s (the parties’) Joint Motion for Remand (JMR), which vacated and remanded the Board’s November 2016 decision for action consistent with the JMR. The case now returns to the Board. Entitlement to service connection for cognitive disorder. The Veteran contends that his current cognitive disorder caused or aggravated by a TBI that occurred during his second period of active service. As a preliminary matter, the Board notes that the January 2018 JMR was narrow in scope. Specifically, the Court did not disturb the Board’s November 2016 finding that the Veteran’s cognitive disorder clearly and unmistakably existed prior to his entry to active service. Rather, the sole inadequacy identified by the JMR was the Board’s perceived failure to provide adequate reasons and bases for its determination that such pre-existing disorder was clearly and unmistakably not aggravated by his TBI during his second period of active duty. Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Further, neither the Veteran nor his representative has raised any challenge or issue beyond those addressed in the JMR. Based on the foregoing, and in the interest of administrative efficiency, the Board will proceed by addressing only that aspect of the November 2016 decision that the JMR identified as inadequate. Id. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At the outset, the Board notes that the Veteran has a current diagnosis of unspecified neurodevelopmental disorder as demonstrated at a January 2014 VA examination. Further, as noted previously, the JMR did not disturb the Board’s finding in the November 2016 decision that such disorder clearly and unmistakably existed prior to the Veteran’s entry to active service. Therefore, the remaining inquiry is whether the evidence clearly and unmistakably shows that the Veteran’s pre-existing unspecified neurodevelopmental disorder was not aggravated by his military service. In this regard, the Veteran’s service treatment records reflect that he suffered a fall on February 20, 2003, resulting in a TBI, and he is service-connected for residuals thereof. Three days prior to this incident, the Veteran requested to be discharged due to a reported learning disability and depression. In April 2003, a psychiatrist determined that he was unfit for his current duties, and he was discharged. At a June 2003 VA examination, the Veteran reported that he first sought mental health treatment in January 2002 when his unit was activated, reporting difficulty concentrating, nervousness, and headaches. He also indicated that he had been seeing a civilian doctor since 2000 for such symptoms. The examiner diagnosed the Veteran with moderate dysthymia and low intellectual functioning. At a September 2004 VA examination referable to his TBI and associated headaches, the Veteran reported that he also suffered memory issues that have worsened over the years. The examiner diagnosed posttraumatic headaches, but opined that the Veteran’s reported memory loss was not a result of his TBI. In this regard, he noted that the Veteran reported worsening memory loss, where TBI symptoms tend to be static or, if anything, will improve. The examiner suggested that memory loss might rather be secondary to a psychological disability, possibly depression. In a December 2004 addendum, he opined that the Veteran’s dysthymia and/or depression predated his military service and was not secondary to his TBI. VA and private treatment records from such time period include notations of reported cognitive problems after the TBI. In this regard, a July 2006 VA treatment record notes the Veteran reported that he noticed things changed, including loss of memory, concentration problems, and headaches, after his head injury. Further, a February 2007 letter from the Veteran’s treating counselor notes that he was treating the Veteran at the time of the reported accident and, shortly after the injury, the Veteran reported that he was having difficulty performing his accustomed tasks at the motor pool, experienced episodes of confusion, distractibility, problems with memory, and problems with his retention and ability to perform complex task sequences. The counselor noted that when he first complained of the above symptoms, he did not relate them to the fall. He also noted that the Veteran still had such cognitive symptoms at the time of writing the letter in 2007, and, in his time working with the Veteran, he has never shown any effort to magnify or falsify the severity of his symptoms, and has consistently attempted to learn coping strategies. The counselor concluded that the Veteran did experience significant declines in important areas of his cognitive functioning following his head injury, which were chronic and permanent. In his March 2009 claim, the Veteran reported that, after his TBI in February 2003, follow-up evaluation and treatment for such was recommended, but he never received this treatment. He stated that, after the accident, his performance of his duties declined markedly as he had trouble with his memory, had trouble focusing, and became confused easily. He reported that these problems have persisted and made it difficult for him to maintain employment. The Veteran also submitted a February 2009 letter from his private counselor. At such time, the counselor reiterated that the Veteran had chronic and permanent declines in the areas of his cognitive and sensory-motor functioning as a result of his TBI. As to his prior diagnoses, he stated that the Veteran was reportedly diagnosed with ADHD prior to service, but noted that his current symptoms are atypical for ADHD. Additionally, the counselor reported interviews with two people who knew the Veteran before and after the TBI. In this regard, one of the Veteran’s co-workers reported that his performance of his job and generally functioning declined following his injury, noting that Veteran slowed down after fall, his quality of work declined, he was not trusted to work independently any longer, and seemed preoccupied and distracted. The Veteran’s friend and roommate at the time of the TBI reported similar observations as his co-worker. The counselor noted in particular the similarity between the described observed symptoms and functional impairment from the two witnesses who had never met each other was striking. The Veteran then underwent a VA examination in May 2009, at which time he reported that, ever since his TBI, he had not been “right,” noting an inability to help his neighbor fix his car because he can no longer remember where the parts go, often forgets things when leaving for work, has difficulty remembering all of the tasks assigned to him at work, and no longer liked to talk to people. The examiner diagnosed a history of learning disability and low average intellectual abilities, and opined that the Veteran’s difficulties with attention and concentration have been present at least since 1992, and were stable since that time. The examiner noted the neuropsychological testing scores from the examination were similar to tests performed in 1992. For these reasons, the examiner concluded that with a reasonable degree of psychological certainty that the Veteran’s cognitive symptoms were due to a prenatal or very early life trauma rather than the February 2003 TBI. In a June 2009 letter, the counselor who provided the two previous letters again opined that the Veteran’s cognitive and behavior symptoms are the result of his TBI. In September 2009, coincident with a VA examination for TBI residuals, a VA examiner noted the Veteran’s complaints of worsened cognitive function after the TBI, supporting lay statements from others, and his counselor’s notes and prior VA examinations, and opined that the Veteran’s cognitive limitation is not related to his headaches; however, she could not resolve the question of whether such cognitive limitations were induced solely by his TBI as there were deficits prior to such event. The Veteran underwent a final VA examination in January 2014. At such time, he reported that, since his in-service TBI, he was unable to mechanically fix items that he was able to fix prior to the injury. He reported being much slower and forgetful, with memory problems significantly worsening over time. On examination, he was administered the Montreal Cognitive Assessment, the results of which were suggestive of significant cognitive impairment. He was then administered a neuropsychological screening battery. Cognitive symptom validity testing revealed a suboptimal effort, thus raising a question as to the validity of any testing done during that examination. Based on these results and the Veteran’s medical records, the examiner opined that it is less likely than not that the Veteran’s unspecified neurodevelopmental disorder was aggravated by his in-service TBI. The examination report contained a very detailed history of the medical and lay evidence of record, and the examiner explained that the Veteran consistently exhibited a low average IQ and other areas of cognition in testing dated from 1992 to 2009, with the examiner concluding that there was no objective evidence of cognitive changes due to a 2003 incident. Based on the foregoing, the Board finds that the evidence does not clearly and unmistakably show that the Veteran’s pre-existing unspecified neurodevelopmental disorder was not aggravated by his TBI during his second period of active duty. In this regard, the Board notes that the September 2004, May 2009, and January 2014 VA examiners found that the Veteran’s cognitive disorder was not related to his in-service TBI. However, the September 2009 VA examiner opined that the cognitive limitations were not induced solely by his TBI (emphasis added), which implies some causal relationship. Further, the Veteran’s counselor concluded that he did in fact suffer chronic and permanent cognitive impairment from the TBI. In this regard, he reported that he treated the Veteran before and after the TBI, and noticed a cognitive decline following such injury. Furthermore, the Veteran’s co-worker and friend likewise provided contemporary witness accounts of cognitive decline. Therefore, based on the foregoing, the Board finds that the evidence does not show that the Veteran’s cognitive disorder was clearly and unmistakably not aggravated during his second period of service. Consequently, the presumption of soundness is not rebutted. Thus, the remaining inquiry is whether the Veteran’s cognitive disorder was incurred during service. In this regard, the Board finds that the evidence is in relative equipoise on such matter. Specifically, as noted previously, the Veteran’s counselor, as well as his co-worker and friend, reported an onset of cognitive symptomatology following his TBI, while the September 2004, May 2009, and January 2014 VA examiners found that his disorder was unrelated to his military service. As the counselor and VA examiners are medical professionals and familiar with the facts of the case, they are all competent to render such opinions. Furthermore, there are also numerous lay statements from the Veteran and others who witnessed a marked decline in his cognitive function after his TBI. Therefore, the Board resolves all doubt in favor of the Veteran and finds that his unspecified neurodevelopmental disorder was incurred in service. Consequently, service connection for such disorder is warranted. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel