Citation Nr: 18159837 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-53 721 DATE: December 20, 2018 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a bilateral hand/wrist disorder, to include a neurological disorder of the bilateral upper extremities, is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to an initial disability rating for PTSD in excess of 30 percent is remanded. FINDING OF FACT 1. Residuals of a TBI were not incurred in active service. CONCLUSION OF LAW 1. The criteria to establish entitlement to service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from September 2005 to September 2009. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in December 2009, October 2010, and August 2012. The Board notes that the December 2009 rating decision denied entitlement to service connection for a bilateral wrist disorder. The rating decision stated that there was no evidence in the service treatment records (STRs) of a relevant injury, disease, or disability. Within one year of that decision, the Veteran submitted a June 2010 VA Form 21-526 in which he claimed entitlement to service connection for loss of dexterity and numbness in his hands. The AOJ subsequently addressed this submission as a new claim and denied the issue in an October 2010 rating decision. However, the Board finds that the claims are not separate and distinct as the symptoms of the disorders appear to overlap. Boggs v. Peake, 520 F.3d 1330, 1336 (2008). Although the June 2010 VA Form 21-526 would normally be treated as a request to reopen a previously denied claim, the Board notes that the VA Form 21-526 included new and material information indicating that the Veteran’s bilateral hand/wrist disorder first manifested during active service, but the Veteran did not seek treatment at that time. When new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Consequently, the December 2009 rating decision did not become final, and the claim addressed in the October 2010 rating decision stemmed from the December 2009 rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In addition to reconsidering and denying the Veteran’s service connection claim for a bilateral wrist/hand disorder, the October 2010 rating decision denied entitlement to service connection for a back disorder and a neck disorder. In the year following this decision, a January 2011 Report of General Information stated that the Veteran wanted to reopen these claims. Before the Veteran’s request to reopen was addressed by the AOJ in a rating decision, VA also received a notice of disagreement (NOD) from the Veteran in September 2011 for the October 2010 rating decision. The submission was stamped by the AOJ as an NOD, and the Veteran was sent a Decision Review Officer (DRO) process explanation letter in September 2011. Later in a July 2012 letter, the AOJ informed the Veteran that these service connection claims were currently being processed in appeals, and the AOJ would contact the Veteran regarding these issues in a separate correspondence. Despite these actions, the issues were subsequently adjudicated by the AOJ in an August 2012 rating decision as requests to reopen previously denied claims. The rating decision stated that the Veteran’s September 2011 NOD should not have been accepted in light of the previous request to reopen reported in January 2011. Given that the Veteran’s September 2011 NOD was timely, the Board finds that the AOJ’s characterization of the issues was incorrect. The submission of the September 2011 NOD amounts to a clarification by the Veteran of the intentions that were noted in the January 2011 Report of Information. Thus, no new and material evidence is required to adjudicate these claims de novo. I. Duties to Notify and Assist The record shows that the Veteran has not been provided with a VA examination or medical opinion related to his service connection claim for a TBI, and the Veteran’s representative has asserted that the issue should be remanded to obtain an examination. See May 2018 Statement from Representative. However, the Board concludes that a remand to afford the Veteran a VA examination is not necessary. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or opinion is necessary if the evidence of record (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). However, the most probative evidence shows that there was no event, injury or disease in service to which a current disorder could be related. As such, the Board finds that an examination is not necessary. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also McLendon, 20 Vet. App. at 83. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for residuals of a TBI. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service 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). The Veteran contends that he sustained a TBI during his active service. See January 2011 Report of Medical History. The Veteran is certainly competent to report as to the observable events and symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran's reported history is not credible. The Veteran’s STRs are silent for any complaints, treatment, or diagnoses related to a TBI. The July 2005 enlistment examination did not document that any abnormalities were present in the Veteran’s head, neurologic functioning, or psychiatric functioning. In the July 2015 Report of Medical History, the Veteran also denied having any history of a head injury, memory loss, or amnesia. The record reflects that the Veteran had two separate deployments during his active service. It appears that the first period of deployment was from approximately April 2007 to October 2007. In September 2007, the Veteran completed a Post-Deployment Health Assessment for a period of deployment beginning in April 2007. However, no date of departure from the theater was noted. Nevertheless, this record did not contain information regarding a TBI. Another Post-Deployment Health Assessment from February 2008 that was noted to be for a period from April 2007 to October 2007 also failed to include any reports concerning a TBI. A subsequent August 2008 Post-Deployment Health Assessment was similarly documented to be for a period of deployment from May 7, 2007 to October 12, 2007. The assessment clearly marked that one section of the record was intended to assess whether the Veteran had suffered a TBI during his deployment. In this section, the Veteran denied experiencing any of the provided choices for a relevant event, including a blast or explosion (IED, RPG, land mine, grenade, etc.); a vehicular accident/crash (any vehicle, including aircraft); a fragment wound or bullet wound above his shoulders; a fall; or any other event (for example, a sports injury to his head). Thus, the provider noted under the TBI risk assessment that there was no evidence of a risk. The record reflects that the second period of deployment was from October 2008 to February 2009. In a June 2009 Post-Deployment Health Assessment that was noted to be for this period, the Veteran made the same denials that were noted in August 2008 regarding whether he had experienced any event during his deployment that could cause a TBI. In addition, the provider reached the same conclusion that there was no evidence of risk for a TBI. In a subsequent August 2009 Report of Medical Assessment, the Veteran denied that he had suffered from any injury or illness while on active duty for which he did not seek medical care. He only reported that he intended to seek VA disability benefits for his wrist. In an August 2009 Report of Medical History, the Veteran reported having swollen or painful joints; nervous trouble of any sort; habitual stammering or stuttering; a loss of memory or amnesia, or neurological symptoms; and frequent trouble sleeping. The Veteran also checked “yes” for the choice of "[a] head injury, memory loss or amnesia." However, the explanation of “yes” answers section indicated that this response was limited to memory loss. In addressing this specific choice, the section only stated that the Veteran could not "remember stuff." Furthermore, the provider also noted in the comments section that there was no history of a brain injury or concussion. The provider added the Veteran’s report that he had experienced difficulty remembering things for his entire life. After service, a June 2010 VA treatment record from the VA Northern Indiana Health Care System included the findings from a TBI screening. The record noted that the Veteran had not already been diagnosed as having a TBI during his deployment, and he denied experiencing any TBI-related events during his deployment. The screen was noted to be negative. A subsequent October 28, 2010 VA treatment record from the Battle Creek VA Medical Center also documented the results from a TBI screening. The record noted that the Veteran had not already been diagnosed as having a TBI during his deployment. In addition, the events he experienced during his deployment included a blast or explosion IED (improvised explosive device), RPG (rocket propelled grenade), land mine, grenade, etc. The Veteran reported that immediately after the event, he had symptoms of not remembering the event; and his memory lapses began or got worse after the event. The Veteran also reported that he was currently having, or had experienced in the past week, symptoms of memory problems or lapses, and sleep problems. The record noted that the TBI screen was positive, and a consultation for a further evaluation was ordered. However, a later record from this date stated that the consultation request was cancelled. The record highlighted the fact that the Veteran’s previous June 2010 screen for a TBI at the VA Northern Indiana Health Care System had been negative, and he had not experienced any subsequent deployments. The record noted that this negative screen that documented the Veteran’s denial of a TBI-related event during service remained in place. In a subsequent March 2012 Statement in Support of Claim for Service Connection for PTSD, the Veteran indicated that he knew two Marines who were killed when their vehicle hit an IED his deployment in April 2007. The AOJ later determined that while there was no evidence that the Veteran had witnessed these deaths, there was sufficient evidence to establish the event as a PTSD stressor. See July 2012 Memorandum. Subsequent VA examinations in August 2012 and July 2016 that evaluated the Veteran’s PTSD disability also noted that the record did not show that the Veteran had received a TBI diagnosis. Based on the foregoing, the Board finds that Veteran’s current contention that a TBI occurred during service is inconsistent with his reports both during and after service. The Board finds it unlikely that the Veteran would deny experiencing any TBI-related event in the Post-Deployment Health Assessments if such an event had occurred. The Board also finds it significant that the Veteran reported having several different complaints before his separation in his August 2009 Report of Medical History, but he failed to report any TBI event. Moreover, the provider confirmed that there was no history of a head injury or concussion to accompany the Veteran’s reported symptom of memory loss. The Board finds that the lack of STR evidence of a head injury in the face of the Veteran's reports of other complaints weighs against the Veteran's assertions. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In addition, the Veteran’s post-service report of a TBI from October 2010 is inconsistent with his prior denial of any TBI-related event in June 2010. While the Board acknowledges the Veteran’s March 2012 report suggesting that he observed an IED explosion that killed two other servicemembers in April 2007, this report fails to indicate that he was physically impacted by such an explosion and sustained a TBI. As noted above, the Veteran repeatedly denied personally experiencing this type of event and having any relevant injury both during and after service. The Board therefore finds that the Veteran's statements are not credible evidence to establish the occurrence of his reported in-service TBI. In light of the above discussion, the Board finds that there is no probative evidence to show the Veteran experienced an injury, disease, or event during active service, to which any current residuals of a TBI could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), (citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003)). Therefore, the Board finds that a preponderance of the evidence is against the service connection claim for residuals of a TBI. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the Board concludes that service connection is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hand/wrist disorder, to include a neurological disorder of the bilateral upper extremities; entitlement to service connection for a back disorder; and entitlement to service connection for a neck disorder are remanded. The AOJ scheduled the Veteran for VA examinations regarding his service connection claims for a bilateral hand/wrist disorder, a back disorder, and a neck disorder at the Indianapolis VA Medical Center in July 2010. However, the record reflects that the Veteran failed to attend these examinations. After this fact was noted in the October 2010 rating decision, a January 2011 Report of General Information documented the Veteran’s explanation that he had been unable to attend the examinations due to the fact that he was currently enrolled in the PTSD Residential Rehabilitation Treatment Program at the Battle Creek VA Medical Center. See also November 2010 Statement. However, the Veteran was not scheduled for additional VA examinations. The Veteran’s VA treatment records reflect that the Veteran was arrested in October 2009, and he was incarcerated until October 2010 when he received authorization to participate in the VA residential treatment program. He was not discharged from this program until approximately January 2011. Although the Veteran’s enrollment in the program reportedly did not begin until after the July 2010 VA examinations were scheduled, it appears that he was still prevented from attending due to the fact that he was incarcerated at that time. The record also indicates that the AOJ was unaware that the Veteran was incarcerated in July 2010 as there is no evidence that any efforts were made to accommodate this status in scheduling the VA examinations. Consequently, the Board finds that the Veteran has provided good cause to remand these issues to reschedule VA examinations concerning his claims. 38 C.F.R. § 3.655(a) 2. Entitlement to an initial disability rating for PTSD in excess of 30 percent is remanded. The record shows that the Veteran was last provided with a VA examination to evaluate his PTSD disability in July 2016. The Veteran’s representative has asserted that this examination is inadequate for rating purposes, and the Board agrees. See May 2018 Statement from Representative. In addressing the hallucinations category of the mental status examination, the examiner noted the Veteran’s report that he heard noises and saw things that were not there, with the last such event occurring the previous week. However, the examiner did not include hallucinations under the symptoms that were attributable to PTSD. The examiner noted elsewhere in the examination that the Veteran did not have a diagnosis for any psychiatric disorder other than PTSD, and he failed to include any comments to indicate that the Veteran’s descriptions of his symptoms were not credible. The record also shows that the Veteran previously reported having auditory hallucinations in January 2015, and he was noted to have psychosis not otherwise specified (NOS) in addition to PTSD at that time. Thus, it is unclear whether the Veteran has symptoms of hallucinations associated with his PTSD disability. As the examination report is internally inconsistent, the Board finds that a remand is necessary to obtain an additional VA examination. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have records of treatment for his bilateral hand/wrist disorder, neck disorder, back disorder, and PTSD disability that are not associated with his electronic claims folder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the VA Northern Indiana Health Care System dated since July 2016. 2. After the preceding development in paragraph 1 is completed, schedule a VA examination in relation to the Veteran's service connection claim for a bilateral hand/wrist disorder, to include a neurological disorder of the bilateral upper extremities. Any and all studies, tests, and evaluations deemed necessary should be performed. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current left and/or right hand and wrist disorders, to include any neurological disorder of the left and/or right upper extremity. For each identified disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder manifested during service, or is otherwise related to service. 3. After the preceding development in paragraph 1 is completed, schedule a VA examination in relation to the Veteran's service connection claim for a back disorder. Any and all studies, tests, and evaluations deemed necessary should be performed. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current back disorders. For each identified disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder manifested during service, or is otherwise related to service. 4. After the preceding development in paragraph 1 is completed, schedule a VA examination in relation to the Veteran's service connection claim for a neck disorder. Any and all studies, tests, and evaluations deemed necessary should be performed. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts of the case as well as relevant medical principles is needed. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current neck disorders. For each identified disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder manifested during service, or is otherwise related to service. 5. After completing the preceding development in paragraph 1, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel