Citation Nr: 18148874 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-22 610 DATE: November 8, 2018 REMANDED Entitlement to service connection for a neurological disability, to include organic brain syndrome, toxic encephalopathy, multiple chemical sensitivity (MCS), and peripheral neuropathy, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include a neurocognitive disorder, general anxiety disorder, and depression, and as secondary to a neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS, is remanded. Entitlement to service connection for a sleep disability (claimed as fatigue), to include obstructive sleep apnea and insomnia, and as secondary to a neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS, is remanded. Entitlement to service connection for a digestive disability, to include as secondary to a neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active naval service from May 1972 to February 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the VA Regional Office (RO) in San Diego, California. The Board has reframed the issues on appeal to accurately reflect the Veteran’s contentions and scope of the claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection and TDIU The Veteran has contended that he has organic brain syndrome, toxic encephalopathy, and MCS due to prolonged exposure to toxic jet fuel, chemicals, and assorted solvents during service. Additionally, he has asserted that he has fatigue and a digestive disability that is secondarily-related to his toxic encephalopathy and MCS. The Veteran’s DD 214 shows that his military occupational specialty (MOS) was electrical/mechanical equipment repairman. He contends that for approximately two years he worked on the flight deck of a carrier and provided direct maintenance to planes. He maintains that he often had jet fuel and hydraulic fluids spilled on him, and that he was frequently exposed to paint fumes. The Veteran’s exposure to toxic substances during service has been conceded by VA. See March 2016 Statement of the Case. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of neurological disability, to include toxic encephalopathy and MCS. At the Veteran’s April 1972 enlistment examination, the Veteran reported a head injury but there were no residuals. In January 1973, the Veteran complained of difficulty falling asleep and early morning awakening, despondent feelings about service, becoming easily angered, difficulty controlling his impulses, and inability to “get his head together.” The Veteran described a long, confusing story about his past emotional problems. He related that he was treated with steroids for sensitivity to poison oak which he attributed to a violent behavior when he was younger. Additionally, he stated that he had psychiatric treatment during this period in which he recalled that he was a loner, generally suspicious of people, and prone to violent actions. He admitted to heavy drug use and abuse prior to service. He was diagnosed with reactive depression, immature personality, schizoid personality, and probable borderline personality. In August and November 1973, the Veteran complained of digestive problems and was diagnosed with enteritis and gastroenteritis. The Veteran was later evaluated for alcohol abuse determined to be an alcohol abuser in October 1974. Service personnel records documented that the Veteran’s commanding officer found that the Veteran had frequent and discreditable involvement with military authorities and frequent run-ins with his colleagues, was quick tempered, tended to be careless and sloppy, and needed to work on his self-control in 1974 and was subsequently discharged in February 1975. VA and private post-service treatment records noted that the Veteran complained of symptoms related to a cognitive disorder and a digestive disability. Additionally, the Veteran had post-service diagnoses for obstructive sleep apnea, insomnia, and various psychiatric disabilities. In April 2010, a private psychiatrist diagnosed the Veteran with toxic encephalopathy and general anxiety disorder as secondary to changes caused by toxic exposures as shown, in part, by the results of his SPECT scans. The psychiatrist stated that some of the pathology noted on the Veteran’s SPECT scans were consistent with sleep apnea and inadequate C-PAP treatment. In addition, the psychiatrist noted that the Veteran had multiple grand mal seizures as a child possibly related to steroid use, a concussion in the late 1960s after being hit in the head with a board, and concussions in 1997 and 2003 due to surfing accidents. Further, the psychiatrist expressed concern about the Veteran’s complaints of nausea or vomiting, abdominal pain, and infrequent bowel movements. In a July 2014 medical statement, the Veteran’s private neurotoxicologist, Dr. G. H., noted that he discovered the Veteran had toxic encephalopathy and MCS in 2002. He opined that the Veteran’s MCS was highly more probable than not due to the Veteran’s exposure to very chronic and occasionally extreme chemical, fuels, and solvents. Additionally, Dr. G. H. concluded that the Veteran’s toxic encephalopathy was secondary to the same in-service exposure and the Veteran’s MCS. In an August 2015 medical statement, Dr. G. H. clarified that toxic encephalopathy and MCS were acknowledged, separate and distinct disabilities. Dr. G. H. explained that MCS was in large part a disorder of the immune system. Dr. G. H. stated that the Veteran’s in-service exposures affected the brain and the Veteran developed continuing behavioral, cognitive, and memory problems. Following a July 2014 evaluation by the VA War Related Injury and Illness Study Center (WRIISC), a VA WRIISC psychiatrist ruled out an initial diagnosis for frontotemporal dementia and, in September 2015, concluded that the Veteran’s cerebral volume loss was potentially caused by toxic exposures at any time in the Veteran’s past. The Veteran was afforded a VA examination in March 2016. The Veteran reported that jet fuel and hydraulic fluids spilled on him during service and that on numerous occasions, he was soaked from head toe. Additionally, the Veteran stated that he routinely painted aircraft. He reported that he developed depression and drank heavily following his separation from service. Over time, he stated he developed poor memory, became disinhibited and irritable, lacked energy, had a decline in work productivity, and experienced fatigued, brain fog, and tremors. He indicated that he developed allergies and sensitivities that were possibly associated with ambient pesticides. He reported that antidepressants and a hyperbaric chamber helped his symptoms, to include fatigue, low energy, brain fog, and low productivity. In 2006/2007, the Veteran notice a “precipitous” decline in his cognitive functioning and he began drinking again so that he could think clearly. Additionally, he reported difficulty waking up in the morning, inability to nap, and digestive problems between 2006 and 2009. The examiner diagnosed intoxication due to exposure to fuel, paint, and volatile fumes. Further, the examiner noted that MCS was not an accepted medical condition. The examiner opined that it was less likely than not that the Veteran had a toxic encephalopathy related to chemical exposure in service. In support of this opinion, the March 2016 VA examiner observed, in part, that the Veteran was circumstantial and tangential at his January 1973 mental health evaluation which preceded the Veteran’s in-service exposure to fuels. The examiner noted that the Veteran had a childhood history of ADHD and that the Veteran was awarded six months of non-court supervision for association with persons engaged in illegal activities prior to his enlistment. The examiner stated that the Veteran’s claim was confounded by his alcohol dependence/abuse and recurrent depression. The examiner highlighted the fact that the Veteran had difficulties with interpersonal relationships and depression during service, prior to his exposure to toxins. The examiner noted that the Veteran was diagnosed with alcohol abuse and had recurrent episodes of depression during service and that the Veteran reported heavy alcohol use and had depression following service. Despite the Veteran’s report that he took anti-depressants to treat fatigue and low energy which he believed was related to his MCS, the examiner proposed that the anti-depressants were effectively treating the Veteran’s depression. The examiner added that the Veteran’s sleep apnea could contribute to depressive symptoms, such as fatigue and sleepiness. The examiner stated that some patterns of decline in the Veteran’s cognition, functioning, and behavior/mood started prior to the Veteran’s exposure to toxins during service and that because of the Veteran’s high aptitude it was difficult to detect any currently present deficits. Additionally, the examiner noted that the Veteran’s mood disorder and alcohol abuse would affect his functioning and performance levels on cognitive testing. Further, the examiner stated that the Veteran’s depression likely affected his abilities on neuropsychological testing. The examiner determined that while there was some atrophy on the Veteran’s brain MRI, it was stable between 2008 and 2014, and thus was an argument against a progressive process during that period. The examiner added that the Veteran’s PET scan was normal. The examiner found a few studies on patients with chronic volatile solvent or inhalant abuse that suggested improvement in most areas of cognitive functioning over time after abstinence unless they had encephalopathy related to leaded fuel “(eye movement abnormalities, ataxia, seizures).” The examiner stated that additional testing would help clarify the Veteran’s cognitive diagnosis and recommended repeat neuropsychological testing, as the Veteran felt his mood was improving from a recent depression. The examiner concluded that the evidence suggested that the Veteran had a psychiatric disability, a personality disorder, and alcohol abuse that started in the military before his exposure to fuels. The examiner determined that the Veteran’s present concerns were similar in quality to what they were during his service and that his reported decline in functioning was only “somewhat” supported by his evaluations. A private independent neuropsychiatric review was conducted in December 2017. The private psychiatrist, Dr. P. L., opined that it was at least as likely as not that the Veteran’s chronic organic brain syndrome was related to exposure to fuels, solvents, and paints during service. Dr. P. L. further opined that it was more likely than not that this exposure caused neurological alterations that became manifest after a long delay. Dr. P. L. found no credible evidence that the Veteran had any pre-existing condition prior to his enlistment. He stated that the January 1973 mental health evaluation for sleep problems and possible depression was not credible and the diagnostic formula was not supported by any evidence. Further, Dr. P. L. concluded that the recommendation, based on limited information, was negligent at best. Dr. P. L. noted that the Veteran had been honorably discharged and successfully pursued a legal career until his cognitive and behavioral dysfunctions prevented his lawyering ability. Dr. P. L. expressed that the Veteran’s “so called ‘reactive depression’” during service did not preclude the Veteran from serving on the flight deck and subsequently as a lawyer. Dr. P. L. stated that the Veteran’s depression became a significant issue after the Veteran could no longer function adequately and appropriately as a lawyer. Dr. P. L. determined that there was ample evidence that the Veteran had encephalopathy that had caused profound impairment and found the early findings by Dr. G. H. quite credible. While it was unclear if it was a static or progressive problem, Dr. P. L. noted that it did not follow a pattern for common dementias or posttraumatic encephalopathy. Dr. P. L. concluded that the WRIISC definitively established that the Veteran had a frontal lobe syndrome. However, there was no absolute or definitive diagnosis without tissue pathology. Dr. P. L. stated that a summary of all the conflicting neuropsychological testing at least indicated that there was impairment of executive functions in association with the Veteran’s extremely inconsistent, unpredictable and volatile irritability and anger, which Dr. P. L. labeled as profound behavioral dysfunction and attributed it to the Veteran’s frontal lobe dysfunction. Dr. P. L. did not believe that the Veteran’s behavioral dysfunction was related to a mood disorder, or an undefined personality disorder. Following an intense review of the medical literature, Dr. P. L. found no well-defined clinical syndrome to describe the Veteran’s clinical picture, particularly because there were multiple chemicals involved and the Veteran was never examined during service. Additionally, he cited a study that linked jet fuel exposure to adverse neurological effects. Given the aforementioned inconsistencies regarding the existence of a neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS, during the pendency of the appeal, the Board finds that a remand is necessary to address the conflicting medical diagnoses. The March 2016 VA examiner did not address the Veteran’s pre-service history of a head injury and multiple grand mal seizures as well as his post-service concussions. Moreover, the Board finds that the March 2016 VA examiner did not sufficiently explain the etiology of any identified central nervous system conditions, to include alcohol use, MCS, and toxic encephalopathy. In light of the Veteran’s complaints of and diagnoses for a sleep impairment and digestive problems during service, his assertions that he has continued to have symptoms since that time, and the post-service medical evidence of obstructive sleep apnea, insomnia, and a digestive disability; the Board finds that the Veteran should be afforded VA examinations to determine the nature and etiology of any currently present sleep and digestive disability. Additionally, the Veteran was diagnosed with various psychiatric disabilities during and following his active service. As such, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present psychiatric disability, to include a neurocognitive disorder. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final disposition of the remaining claims. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate VA physician and obtain an opinion on the nature and etiology of any currently diagnosed neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS. If an examination is necessary before the physician can provide the requested opinion, then a new examination should be arranged. The physician should provide the following opinions: (a) For each currently diagnosed neurological, state whether the disability clearly and unmistakably existed prior to the Veteran’s active service. In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. (b) For any currently diagnosed neurological disability that DID clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether that disability was clearly and unmistakably NOT aggravated by service. The examiner should comment on the Veteran’s pre-service history of a head injury and multiple grand mal seizures as well as his post-service concussions. Additionally, the examiner should specifically address the Veteran’s conceded exposure to toxic jet fuel, chemicals, paint fumes, and assorted solvents during service; service personnel records regarding the Veteran’s character of discharge; and the Veteran’s history of alcohol use. (c) For any currently diagnosed neurological disability that did NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such condition is etiologically related to the Veteran’s active service. The examiner should specifically address the Veteran’s post-service concussions, prolonged exposure to toxic jet fuel, chemicals, and assorted solvents during service, and service personnel records regarding the Veteran’s character of discharge. The examiner should consider the relevant STRs discussed above, the conflicting opinions of record, and any medical articles submitted by the Veteran. The examiner should consider that the Veteran’s lay assertions alone are not a sufficient basis to determine that he clearly and unmistakably had a neurological disability that pre-existed entrance to active service. Further, the lack of medical treatment or diagnosis of a neurological disability during service alone is not a sufficient basis to determine that a neurological disability was clearly and unmistakably not aggravated during active service. The rationale for all opinions expressed must be provided. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present sleep disability, to include obstructive sleep apnea and insomnia. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present sleep disability, to include obstructive sleep apnea and insomnia, is etiologically related to the Veteran’s active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present sleep disability, to include obstructive sleep apnea and insomnia, was caused or aggravated by any currently diagnosed neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS. The examiner must specifically comment on the Veteran’s report of fatigue. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present digestive disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present digestive disability is etiologically related to the Veteran’s active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present digestive disability was caused or aggravated by the Veteran’s neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS. The rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for a VA examination by a psychiatrist or psychologist with sufficient expertise to determine the nature and etiology of any currently present psychiatric disability, to include a neurocognitive disorder, general anxiety disorder, and depression. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all psychiatric disabilities present during the pendency of the claim, or proximate thereto. Then, for each psychiatric disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such psychiatric disability is etiologically related to the Veteran’s active service. The examiner should specifically comment on any documented in-service mental health treatment, symptoms of sleep impairment, alcohol abuse as well as service personnel records regarding the Veteran’s character of discharge. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present psychiatric disability was caused or aggravated by any currently diagnosed neurological disability, to include organic brain syndrome, toxic encephalopathy, and MCS. The rationale for all opinions expressed must be provided. 5. Then, readjudicate the TDIU claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel