Citation Nr: 1810491 Decision Date: 02/21/18 Archive Date: 03/01/18 DOCKET NO. 14-25 340A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals of a head injury, to include traumatic brain injury (TBI) and a scar. 2. Entitlement to service connection for a variously diagnosed psychiatric disability to include posttraumatic stress disorder (PTSD). 3. Entitlement to a rating in excess of 20 percent for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1983 to January 1985. This matter is before the Board of Veterans'Appeals (Board) on appeal from July 2011 and January 2012 rating decisions by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). A July 2014 interim rating decision increased the rating for the low back to 20 percent effective July 23, 2010. In November 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. [The Veteran has psychiatric diagnoses other than PTSD, to include bipolar disorder, and under Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) his claim seeking service connection for PTSD is interpreted as encompassing all psychiatric diagnoses. The issue is characterized accordingly.] The issues of service connection for a psychiatric disability and seeking increases in the ratings for a low back disability are being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action is required. FINDINGS OF FACT The Veteran is not shown to have sustained a head injury in service, and there is no competent evidence in the record that he now has disability that is a residual of any such injury. CONCLUSION OF LAW Service connection for residuals of a head injury to include TBI and scar is not warranted. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to notify was satisfied by correspondence in February and May 2011. See 38 U.S.C. §§ 5102, 5103, 5103A ; 38 C.F.R. § 3.159. At the November 2016 videoconference hearing, the undersigned identified the issues on appeal, explained what is needed to substantiate a claim of service connection for residuals of a head injury, and identified further evidence that could help substantiate the claim. The Veteran's service treatment records (STRs), Social Security Administration (SSA) records, and pertinent postservice treatment records are associated with the record. He has not identified any pertinent evidence that is outstanding. The RO did not arrange for a VA examination with respect to this claim, and the Board has considered whether an examination is necessary. As the Veteran is not shown to have sustained a head injury in service, an examination would service no useful purpose, as while it may find a current disability, it would not show a head injury in service to which the current disability could be related. In that regard the Board notes that his hearing testimony that a head injury in service is corroborated by a scar shown in his STRs. The Board's close review of his STRs found no mention of a head injury or a head scar therein. Consequently, a VA examination is not necessary in this matter. See McLendon v. Nicholson, 20 Vet. App. 27 (2006)) . See 38 C.F.R. § 3.159 (c)(4). Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disorder first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends that he has sustained a head injury in service resulting in TBI and a scar in an accident while riding in an armored personnel carrier (APC). His STRs are silent both for a head injury, and for an injury such as he describes. They do show that he sustained a hip /back injury in the course of wheel barrel exercises, and that in 1984 he fell from the back of a moving truck, sustaining injuries to a knee elbow and his back. He has also alleged sustaining a head injury when struck by a non-commissioned officer. Such injury in service is also not shown. They Veteran declined a service separation examination. The record is silent postservice for any notation of a complaint pertaining to a head injury in service until July 2010, when a VA treatment record noted that the Veteran reported that he was hit in the head with the butt of a weapon by a Sergeant while attempting pull-ups. He reported that he had had some vision and balance disturbances, but no loss of consciousness or alteration in cognitive status, and was able to function. On November 2011 VA PTSD examination, and on May 2014 VA mental disorder examination, it was noted that the Veteran did not have a diagnosis of TBI. An April 2015 VA treatment record notes that the Veteran reported a TBI in service, but provided no additional information. At the November 2016 videoconference hearing, the Veteran testified that he sustained a head injury while riding in an APC that was involved in an accident, resulting in a scar; he testified that the scar was noted in his STRs. He also reported a fall from a truck when he injured his low back. At the outset the Board finds that the Veteran's reports of head injuries in service (including from being struck with a rifle butt by a sergeant and from striking his head while riding in an APC that was in an accident), resulting in a TBI and a scar are not credible. There is no report of such injuries in the record prior to 2010, when the Veteran filed a claim seeking service connection for TBI (later adding a scar to the claim). Such report is self-serving. Furthermore, it is inconsistent with, and not supported by contemporaneously record clinical data. Significantly his STRs (which appear to be complete-he declined a service separation examination) contain no mention of a head injury (while noting various other injuries, including to the back, elbow, and knee sustained in the course of training, and in a fall from the back of a truck when it made a turn. Logically, if he sustained a significant injury in an APC accident resulting in a TBI and head scar, it would have been noted, with perhaps some follow-up also noted. It is also noteworthy that the Veteran's postservice medical records are also silent for disability residual of a TBI and a scar. In fact, it was specifically noted in the course of psychiatric treatment that the Veteran did not have a diagnosis to TBI (although a subsequent record notes he reported sustaining a TBI in service). The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, here a disability identified as either a TBI or scar residual of such an injury. The record does not include any such evidence. Significantly, the Veteran has not identified any physician who assigned him a diagnosis of head injury or TBI residuals of such an injury, and does not point to any occasion, treatment, or evaluation when such disability was diagnosed (or underlying pathology to include a scar was identified). In the absence of proof of a current head injury residual disability there is no valid claim for service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for residuals of a head injury to include TBI and a scar. Accordingly; the doctrine of reasonable doubt does not apply in this matter. The appeal in the matter must be denied. ORDER Service connection for residuals of a head injury (to include TBI and a scar) is denied. REMAND On April 2011 VA PTSD examination, PTSD was diagnosed based on the Veteran's fear of death in a hostile military or terrorist situation. The stressor event reported by the Veteran (seeing a soldier having his arm blown off during a training exercise), was not corroborated. Therefore, that diagnosis has no probative value. Proper development of the service connection for PTSD (or other psychiatric disability) claim requires first a finding of whether or not there is credible corroborating evidence of a stressor event in service. Notably, a fall from a moving truck resulting in chronic disability potentially may qualify as a stressor sufficient to support a diagnosis of PTSD (although that is a medical question that remains unanswered). The most recent VA examination to assess the Veteran's low back disability was in July 2014. He has alleged that the rating assigned does not reflect the current severity of his low back disability. At the November 2016 Board hearing, he reported undergoing surgery in August 2016. In light of the allegation of worsening, a contemporaneous examination to assess the low back disability is necessary. The most recent VA records in the file are from August 2016. Updated records of VA evaluations or treatment the Veteran has received for the disabilities remaining on appeal may contain pertinent information, are constructively of record, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record the complete clinical records (any not already associated with the claims file) of any VA evaluations or treatment the Veteran received for low back and psychiatric complaints since August 2016. 2. The AOJ should ask the Veteran to provide detailed information regarding his alleged stressor events in service; arrange for all indicated development to verify his alleged stressor event (to specifically include witnessing a soldier have his arm blown off during a training exercise at Fort Stewart, Georgia in January 1984) based on the information provided; and then make a finding for the record indicating what, if any, stressor event in service is corroborated by credible supporting evidence. 3. The AOJ should then arrange for a psychiatric examination of the Veteran to ascertain the nature and likely etiology of his psychiatric disability. The Veteran's record must reviewed by the examiner in conjunction with the examination, and the provider should be advised of what stressor events in service, if any, hare recognized as corroborated. Following examination and interview of the Veteran and review of his medical history, the examiner should offer an opinion that responds to the following: (a) Please identify (by diagnosis) each psychiatric disability entity found (or shown by the record). Specifically, does the Veteran have a diagnosis of PTSD based on a corroborated stressor event in service. If so, the provider should identify the corroborated stressor and symptoms supporting the diagnosis. If not, the provider should identify the factors necessary for such diagnosis found lacking. (b) The examiner should also identify the likely etiology for any other psychiatric disability entity diagnosed. Specifically, is it at least as likely as not that the disability is related directly to the Veteran's service/events therein, or was caused or aggravated (the opinion must address aggravation by the Veteran's service-connected back disability? The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 4. The AOJ should also arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected low back disability. The Veteran's record (to include all records received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. Upon review of the record and interview and examination of the Veteran, the examiner should provide an opinion that responds to the following: Please describe all findings in detail, to include complete range of motion studies (to include any limitations due to pain, on use, during periods of exacerbation, with weight-bearing, etc.). It should specifically be noted whether or not the low back is ankylosed (and if so, the position of ankylosis); and whether there are neurologic manifestations, and if so their nature and severity. Also note whether or not there have been incapacitating episodes of disc disease (periods of bed rest prescribed by a physician), and if so, note their frequency and duration in terms of weeks in the course of a year). Please include rationale with the opinion. 5. The AOJ should then review the record and readjudicate the remaining claims. If either remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs