Citation Nr: 18153495 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16 37-041 DATE: November 28, 2018 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a right elbow condition, to include as secondary to service connected right shoulder contusion, is remanded. Entitlement to an initial evaluation higher than 20 percent, and higher than 40 percent from December 12, 2014, for right shoulder contusion, is remanded. FINDING OF FACT A TBI was incurred in service. CONCLUSION OF LAW The service connection criteria for a TBI have been met. 38 U.S.C. §§ 1101, 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1993 to August 1996, and from March 2010 to June 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013, ratings decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the September 2013, rating decision also denied service connection for bilateral hearing loss and tinnitus. The Veteran properly filed a notice of disagreement, and a Statement of the Case was issued in July 2016. However, the Veteran limited his substantive appeal (VA-9) to a right knee condition, right elbow condition, traumatic brain injury, and increased evaluation for right shoulder condition. As such, those matters are not before the Board. Entitlement to service connection for traumatic brain injury (TBI) is granted. The Veteran contends that he suffers from residuals of TBI due to a rocket attack in April 2010. The Veteran’s service treatment records do not specifically document a TBI, but reflect that while in Afghanistan, he experienced a rocket attack. Shortly thereafter, during service, he was examined and reported being easily distracted, generalized pain, and sleeplessness. In September 2013 he was afforded a VA examination. The examiner concluded the Veteran likely had a TBI because of PTA (post traumatic amnesia). The examiner stated the Veteran had no neurological residuals from the TBI. At a May 2014 fibromyalgia examination, the examiner noted the Veteran had a TBI. At a September 2014 examination for housebound status, the examiner noted the Veteran experienced a TBI with loss of consciousness during a rocket attack in Afghanistan. The Veteran had poor cognitive ability due to the TBI. Mr. J. H., submitted a statement in July 2014. Mr. H. stated that while serving in Afghanistan, he witnessed the Veteran fall from the top bunk. He stated he was trying to get down, and his right foot got caught on the bunk causing him to fall, breaking his fall with right arm, that gave way to him hitting his head on the ground. He reported the Veteran was knocked out momentarily, and when he came to, he seemed dazed. A June 2015, statement was received from Dr. N., a physician at the VAMC. Dr. N. stated the Veteran’s cognitive deficiencies are due to a severe TBI. Dr. N. stated he believed the TBI was related to service. His symptoms were described as, headaches, restlessness, easily distracted, difficulty finishing a project, problems carrying on long conversations or sitting for long periods. He was slow to react and process external information, took longer to grasp what others are saying, took more time to understand and following directions, and to read written information. He had language and communication problems, with difficulty thinking of the right word, trouble starting or following conversations or understanding what others say, rambling or getting off topic easily, difficulty with complex language skills, trouble communicating thoughts and feelings, problems reading others’ emotions. He had difficulty planning the day and scheduling appointments, as well as trouble with tasks that require multiple steps done in a particular order. He had difficulty recognizing when there is a problem, trouble analyzing information. At a September 2015, VAMC visit, the Veteran was noted to have a TBI, because of being severely injured in a rocket attack. The Board acknowledges that there are competing opinions of record as to whether the trauma incurred in service led to a TBI with residuals other than that for which service-connection is already in effect. The Board observes that the Veteran is service-connected for PTSD, right shoulder contusion status-post injury, partial spinal fusion, and degenerative disc disease. Although the VA examiner found no other residuals to indicate a TBI, the Veteran’s treating VA physician indicated that the Veteran had a TBI with various neurological, and neurocognitive residuals. In this case, while the VA examiner performed examination and considered neuropsychological examination findings in determining that there were no residuals of the in-service concussion, the Veteran’s treating physician discussed the Veteran’s post-service treatment records and determined that there were various residuals, including cognitive and speech difficulties. The Board finds no reason to discount the treating physician’s opinion, which is consistent with VA treatment records documenting TBI residuals. Therefore, the Board finds the medical opinions to be of relative equipoise regarding whether the Veteran has a TBI disability stemming from the documented April 2010 in-service injury. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that a TBI had its onset in service. Accordingly, service connection for a TBI is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition Service treatment records document a rocket attack in April 2010. He was seen after for reports of soreness in his right knee. In September 2013, the Veteran underwent a VA examination. The examiner indicated the Veteran had a right knee contusion, with the date of diagnosis as April 2010. The Veteran reported sustaining an injury to his knee during the rocket attack of April 2010. The examiner concluded it is less likely than not that any chronic knee condition was related to service, with the rationale being type of injury sustained, STRs with knee exam, and less than 50/50 chance that a Gulf War hazard would result in a knee condition. Finally, the examiner concluded that the Veteran did not have a right knee condition. In September 2013, the Veteran submitted a statement voicing his concern with the examination. He expressed his view that he was not given a reasonable examination, and requested a new examination. In an October 2013, statement, he explained that during service he injured his right knee and had had pain ever since. At a March 2015, VAMC visit, the Veteran reported prominent pain in his right knee. In November 2016, he was seen with complaints of right knee locking. Given the Veterans consistent reports of chronic knee pain, and VAMC entries of these complaints, a new examination is needed to clarify if the Veteran suffers from right knee disability and its likely etiology. 2. Entitlement to service connection for a right elbow condition, to include as secondary to service connected right shoulder contusion, is remanded. The Veteran has asserted that his elbow was injured in Afghanistan after falling from a bunk during a rocket attack, or in the alternative as secondary to the service connected right shoulder condition. Service treatment records confirm the Veteran fell from a bunk during a rocket attack, however, there is no evidence of injury, complaint or treatment for a right elbow condition. In September 2013, the Veteran underwent a VA examination. The VA examiner opined the condition is less likely than not related to service, with the rationale being it was not mentioned during service. At the November 2015, VA examination, the diagnosis for was lateral and medial epicondylitis with the date of onset 2010. The VA examiner concluded he was unable to say with greater than 50 percent probability that the Veteran’s right elbow condition is secondary to his service connected right shoulder. In an October 2013, private treatment record from Dr. Cox, the Veteran was diagnosed with right elbow tendinitis. Dr. Cox noted the Veteran’s elbow condition is “easily ticked off due to a bad shoulder motion.” The November 2015, opinion is vague, and did not adequately address secondary service connection, and the 2013 negative opinion was supported with the statement that there was no evidence he had an elbow condition during service. Another opinion is required to clarify the etiology of the Veteran’s elbow condition. 3. Entitlement to an evaluation higher than 20 percent from August 24, 2012, and higher than 40 percent from December 12, 2014, for right shoulder contusion is remanded. The Veteran underwent VA examinations in August 2014, and again in February 2015. In a November 2015 statement, the Veteran asserted his shoulder should be evaluated as 50 percent disabling. In a December 2015, statement, the Veteran asserted he cannot extend his arm out to the side more than 25 degrees. In August 2016 statement, the Veteran asserted that his shoulder is in fact frozen, and he suffers from adhesive capsulitis. He asserted his shoulder condition is much worse than the assigned evaluations. VAMC treatment records confirm the Veteran has been diagnosed with adhesive capsulitis of the shoulder. As such, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity of his right shoulder condition. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private medical records and associate these records with the claims folder. 2. Schedule the Veteran for a right knee examination. The examiner is asked to answer the following: (a) Does the Veteran suffer from a right knee disability? (b) If so, is it at least as likely as not that it is related to his service? 3. Forward the claims file to an appropriate examiner for an opinion as to the nature and etiology of the Veteran’s claimed right elbow disability. It is left to the examiner’s discretion whether to examine the Veteran. The examiner should answer the following questions: (a) Is it at least as likely as not that the Veteran’s right elbow disability is related to his service? (b) Is it at least as likely as not that the Veteran’s right elbow disability was caused OR aggravated (worsened beyond its natural progression) by the service-connected right shoulder disability? (c) If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the elbow disability, by the service-connected disability. The examiner is asked to address medical records from Dr. Cox, and the Veteran’s contentions, and to provide a rationale for all opinions reached. 4. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of his right shoulder disability. The examiner is asked to determine whether the claimed “frozen” right shoulder is analogous to unfavorable ankylosis. The examiner should provide all information required for rating purposes. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel