Citation Nr: 1823976 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 10-04 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a neurological disorder (including vascular dementia and residuals of a cerebrovascular accident with encephalomalacia), to include as secondary to service-connected bitemporal headaches and/or as secondary to service-connected syncope/seizure disorder. REPRESENTATION Veteran represented by: Atiya T. Munroe, Esq. WITNESSES AT HEARINGS ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to July 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before a Decision Review Officer (DRO) at the RO in November 2009, and a transcript of the hearing is associated with the record. A Central Office hearing was held in September 2010 before undersigned Veterans Law Judge P.M.D., and a transcript of the hearing is associated with the record. Following a February 2011 remand for additional development, the Board denied the Veteran's claim of entitlement to service connection for a neurological disorder [other than syncope/seizure disorder], diagnosed as vascular dementia and residuals of a cerebrovascular accident with encephalomalacia, in a May 2012 decision. Thereafter, the Veteran requested that this portion of the Board's May 2012 decision be vacated pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), and that a new decision be issued after a new hearing was conducted. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The portion of the Board's May 2012 decision which denied service connection for a neurological disorder (diagnosed as vascular dementia and residuals of a cerebrovascular accident with encephalomalacia) was vacated in a June 2014 Board order. Pursuant to a February 2015 remand, a videoconference hearing was held in December 2016 before undersigned Veterans Law Judge S.H., and a transcript of the hearing is associated with the record. Pursuant to an August 2017 remand [and the Veteran's request for a third hearing in accordance with Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011)], a videoconference hearing was held in February 2018 before undersigned Veterans Law Judge M.S., and a transcript of the hearing is associated with the record. [The Board notes that the matters of entitlement to a rating in excess of 40 percent for bilateral hearing loss disability and entitlement to total disability based on individual unemployability (TDIU) were remanded by the Board in May 2017 (by Veterans Law Judge S.H., who conducted the sole hearing on those matters in December 2016) for additional development. Because such development has not yet been completed, the Board does not have jurisdiction over those issues at this time.] This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. REMAND On review of the record, the Board has found that additional development is necessary for the claim on appeal. The Veteran contends that he currently has a neurological disorder that either began during his military service or is secondary to his service-connected bitemporal headaches and/or his service-connected syncope/seizure disorder. The Veteran's service treatment records (STRs) document the following pertinent findings. In October 1975, he reported being hit on the head two days prior, and examination revealed a small lump that was slightly tender on the top center of his skull which was assessed as a minor scalp injury. In June 1976, he complained of abrasions on his nose and lip from a softball injury as well as neck pain "post trauma to head." In August 1985, he was assessed with memory loss. In September 1985, he reported shakiness and loss of memory, and he was given a Physical Profile on that same date in September 1985 for "Short term memory problem." In October 1985, he was examined by a neurologist for syncopal episodes, and it was noted that he was amnesic. In May 1987, a CT scan of his brain showed no significant radiographic abnormalities. Post-service, the medical evidence of record documents the following pertinent findings. In March 2003, a VA CT scan of the Veteran's brain showed mild generalized atrophy. In January 2007, private treatment records note that he was involved in a motor vehicle accident in December 2006, and private neurological testing conducted in January 2007 (after the Veteran experienced slurred speech) indicated that he had suffered an acute cerebrovascular accident and right ischemic stroke. In April 2007, a VA MRI of his head showed only evidence of the recent stroke but did not show any other abnormality. At a July 2008 VA neurology consultation, he reported having two concussions in the military and also head trauma during the post-service December 2006 motor vehicle accident, and a CT scan of his brain showed encephalomalacia in the right temporal-parietal-frontal region. The July 2008 VA treatment provider noted the following: "In reviewing the image, I believe that the encephalomalacia is consistent with prior traumatic brain injury. Further, I cannot imagine a lesion of that size resulting from a stroke that was clinically silent." At an August 2010 VA neuropsychology consultation, the Veteran described his short-term memory problems, and neuropsychiatric testing at that time resulted in a diagnosis of "vascular dementia with mixed etiologies." At a May 2011 VA neurological examination, the VA examiner (a neurologist) diagnosed the Veteran with vascular dementia, syncope (vs. seizures) [subsequently service-connected as syncope/seizure disorder in a May 2012 Board decision and implemented by a July 2012 RO decision], migraines [already service-connected as bitemporal headaches in a September 1989 rating decision], and residuals of a cerebrovascular accident with encephalomalacia. The VA examiner also noted that a diagnosis of traumatic brain injury (TBI) was resolved, with no definite residuals. The VA examiner went on to opine that, for both the Veteran's dementia and his cerebrovascular accident with encephalomalacia, these disabilities were "not caused by or a result of military service" and were "not caused by, a result of, or aggravated by his [service-connected] headache disorder." For rationale, the VA examiner noted finding one documented head injury in service (related to a softball game in 1976) and "little evidence of TBI or residuals of TBI during service....Although his treating neurologists felt his encephalomalacia was a result of in service TBI this is not the case. This finding is clearly a result of his stroke in 1/07 [January 2007]. His CT Brain scans in 1987 and 2003 reveal no focal abnormality and the mild generalized atrophy on the 2003 scan has no clear clinical significance. When he had his stroke the CT [scan] revealed the right brain findings and the MRI 3 months later is consistent with this as well as some generalized ischemic findings. Thus, his brain scan findings can be explained from his stroke and vascular disease and is likely consistent with the dementia picture found on his neuropsych testing. His dementia is clearly vascular in origin and is unrelated to service or his headache disorder in any way either from a causation or aggravation standpoint." While the May 2011 VA neurology examiner addressed the Veteran's in-service head injury in June 1976, that examiner did not address the Veteran's in-service head injury documented in the aforementioned October 1975 STR or his in-service reports of memory loss documented in the aforementioned August 1985, September 1985, and October 1985 STRs (including on a September 1985 Physical Profile). The May 2011 VA examiner also did not address any relationship between the Veteran's diagnoses of vascular dementia and residuals of a cerebrovascular accident with encephalomalacia and his diagnosis of syncope/seizure disorder [which was not service-connected at the time of that examination but is service-connected now]. Since the May 2011 VA neurological examination, the medical evidence of record does not document any diagnoses of additional neurological disorders. The most recent VA treatment report of record is dated in August 2016 (obtained from the North Florida/South Georgia Veterans Health System based in Gainesville, Florida), wherein it was noted that the Veteran had three future VA appointments scheduled for dates in August 2017. In addition, at his February 2018 hearing, he testified that he was being treated by a "military doctor" for his neurological and memory loss symptoms, and that he had just had a seizure episode with memory loss the previous Saturday and "had to go to the hospital on Monday at Gainesville for it." [It is not clear from the record whether this Gainesville hospital was a VA or private facility.] On remand, after all outstanding treatment records have been obtained, a new VA neurological examination must be scheduled in order to determine the nature and etiology of all neurological disorders diagnosed during the period of claim [other than the already service-connected bitemporal headaches and syncope/seizure disorder], with adequate rationale provided for all opinions rendered and with specific consideration given to all aspects of the case that were not addressed by the May 2011 VA examiner (as outlined above). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, obtain all records of the Veteran's treatment for any neurological disorder during the period of claim, to specifically include records of treatment from any private hospitals in Gainesville, Florida (per his testimony at the February 2018 hearing, at which time he did not specify whether he was treated at a VA or private hospital earlier that week). If any identified records cannot be obtained and it is determined that further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Obtain and associate with the claims file all updated VA treatment records from August 2016 to the present. 3. After completing the development requested in items 1 and 2, schedule the Veteran for a VA neurological examination with a clinician with appropriate expertise in order to ascertain the nature and etiology of all neurological disorders diagnosed during the period of claim [other than his already service-connected bitemporal headaches and syncope/seizure disorder]. The claims file should be made available to the examiner for review. Any indicated tests should be accomplished and all pertinent symptomatology and findings must be reported in detail. After reviewing the claims file, the examiner should provide an opinion on the following questions: (a) Identify all valid diagnoses of neurological disabilities present at any time since the pendency of the claim [other than the already service-connected bitemporal headaches and syncope/seizure disorder] (including vascular dementia and residuals of a cerebrovascular accident with encephalomalacia, as documented in the medical evidence outlined above). (b) For each neurological disability that is diagnosed: (i) Is it at least as likely as not (50 percent probability or greater) that such disability was incurred in, related to, or caused by any incident of the Veteran's military service (including his in-service head injuries documented in October 1975 and June 1976 STRs and his in-service reports of memory loss documented in August 1985, September 1985, and October 1985 STRs, including on a September 1985 Physical Profile)? (ii) Is it at least as likely as not (50 percent probability or greater) that such disability was caused by his service-connected bitemporal headaches? (iii) Is it at least as likely as not (50 percent probability or greater) that such disability is aggravated beyond the natural progression of the disability by his service-connected bitemporal headaches? (Aggravation is any increase in severity beyond the natural progression of the disability.) (iv) Is it at least as likely as not (50 percent probability or greater) that such disability was caused by his service-connected syncope/seizure disorder? (v) Is it at least as likely as not (50 percent probability or greater) that such disability is aggravated beyond the natural progression of the disability by his service-connected syncope/seizure disorder? (As noted above, aggravation is any increase in severity beyond the natural progression of the disability.) The examiner should provide a complete rationale for any opinion provided. If the examiner cannot provide any requested opinion without resorting to speculation, then he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Thereafter, review the record, ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claim on appeal for entitlement to service connection for a neurological disorder (including vascular dementia and residuals of a cerebrovascular accident with encephalomalacia), to include on a secondary basis. If the benefit sought on appeal remains denied, in whole or in part, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 (2012). M. SORISIO S. HENEKS Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).