Citation Nr: 20002901 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 19-00 594 DATE: January 14, 2020 ORDER Entitlement to service connection for a traumatic brain injury is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to a disability rating in excess of 10 percent prior to August 28, 2018 and in excess of 30 percent from October 1, 2019 for a service-connected right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent prior to May 29, 2018 and in excess of 30 percent from July 1, 2019 for a service-connected left knee disability is remanded. Entitlement to a compensable disability rating for service-connected residuals of right olecranon fracture is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran does not have any current residuals associated with a head injury, to include a traumatic brain injury. CONCLUSION OF LAW The criteria for service connection for a traumatic brain injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to July 1979, November 2001 to November 2002, and December 2003 to July 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in December 2015 and February 2016 of a Department of Veterans Affairs (VA) Regional Office (RO). While the appeal was pending, the Veteran’s service-connected knee disabilities were granted separate temporary total disability ratings based on the need for total knee replacements. Thereafter, each knee was awarded a separate 30 percent disability rating by rating decisions dated in July 2018 (left knee) and January 2019 (right knee). The Veteran continues his appeal related to the periods he was awarded less-than-total ratings. Additionally, although the Veteran filed his claim seeking service connection for PTSD specifically, the Board notes that the Veteran has also been diagnosed with Major Depressive Disorder. The Board therefore finds that the Veteran’s claim for PTSD is more accurately characterized as one for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for a traumatic brain injury The Veteran states that he has residuals of a traumatic brain injury he experienced during a period of active service. Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). As pertinent here, a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. The Veteran’s service treatment records include a December 1975 Report of Medical Examination for enlistment noting a need to “verify head injury and sequalae” by EEG. The report further indicates that the EEG report was “normal for his age.” The examiner found the Veteran’s skull was negative for abnormalities and the Veteran was found qualified for enlistment. On the accompanying Report of Medical History, the Veteran indicated a history of a head injury he described as a concussion with convulsions that required him to take medication until he was 12 years old. The EEG Report was referenced. After review of the above, the Board finds that the presumption of soundness attaches. Despite the recorded history of a head injury prior to service, upon examination at entrance, the Veteran was not noted to have any residuals of that injury. Indeed, a diagnostic study found his brain was “normal” at that time and there is no indication of any other disability of the head. As such, a head injury, to include a traumatic brain injury and residuals thereof, was not “noted at entrance” for purposes of 38 C.F.R. § 3.304. If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). Here, the Board finds that VA has not shown clear and unmistakable evidence of a preexisting head or brain injury. Accordingly, the presumption of soundness attaches, and the instant appeal will be analyzed as a claim for service connection. The Veteran’s service treatment records include an April 2014 post-deployment assessment wherein the Veteran reported he received a blow or jolt to his head during the deployment that caused him to lose consciousness. However, the examiner found that based on his responses and reported symptomatology, the Veteran did not have a possible concussion and was not referred for an evaluation. During an October 2015 VA examination, the examiner indicated that the Veteran did not have and has never had a traumatic brain injury or residuals thereof. The Veteran reported that he was opening the latch of a motor vehicle when the latch fell on his head. He further stated that he was alone when the incident happened but that he thought he was unconscious. When he talked to the clerk of the unit, he was sent back to work. There was no record of this incident in the Veteran’s service treatment records and the Veteran stated he did not know if he had any residuals from the injury. The Veteran reported current headaches, dizziness, vertigo, and a mental disorder. The examiner found that the Veteran had social, neurobehavioral, and subjective symptoms related to his posttraumatic stress disorder rather than any traumatic brain injury. The examiner further noted that the Veteran had a normal MRI of the brain in July 2015. In an addendum opinion dated in October 2015, the examiner stated that there is no evidence of a traumatic brain injury or residuals on neurologic examination. Post-service treatment records are absent of a diagnosis of a traumatic brain injury other than documenting the Veteran’s reported history, to include a brain injury as a child and again in 1986. After reviewing all the evidence of record, including the Veteran’s statements, the Board finds that the Veteran does not have a currently diagnosed traumatic brain injury for which service connection can be granted. Insomuch as the Veteran contends that he has a cognitive disorder related to a head injury in service, service connection for a cognitive disorder was previously granted in an August 2014 rating decision and such symptoms, therefore, are not pertinent to the current claim. While service treatment records document the Veteran’s reports of a head injury in service, the Board finds that the weight of the evidence does not establish the presence of a currently diagnosed traumatic brain injury (or residuals thereof) for which service connection can be granted. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F. 3d 1328 (1997). This requirement is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no evidence that the Veteran had, at any point during the pendency of the appeal, residuals associated with any in-service head injury. Indeed, the October 2015 VA traumatic brain injury examination shows that the Veteran had a normal MRI in July 2015 and found no evidence of residuals of any in-service head injury. The Veteran has not provided evidence identifying a currently diagnosed traumatic brain injury, nor is a traumatic brain injury diagnosed in the medical evidence of record. Moreover, to the extent the Veteran reported a history of a traumatic brain injury resulting from the claimed in-service blow to the head, the Board finds that the Veteran is not competent to provide a diagnosis or opinion regarding a claimed traumatic brain injury as this is a complex medical issue involving internal and unseen neurologic system processes unobservable by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a traumatic brain injury, or residuals thereof. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The Veteran was afforded a VA mental disorders examination in May 2015. At that time, the examiner found that the Veteran was diagnosed with unspecified neurocognitive disorder but that he did not have more than one mental disorder diagnosed. However, during the October 2015 VA traumatic brain injury examination, the examiner found that the Veteran had social, neurobehavioral, and subjective symptoms “due to PTSD.” Additionally, the Veteran’s post-service treatment records reflect that he was diagnosed with both Major Depressive Disorder and PTSD. The Veteran’s service treatment records note that he was referred for a psychiatric consultation in December 1976 and diagnosed with a cognitive disorder in service after complaining of difficulty sleeping, difficulty concentrating, and memory loss. As noted above, service connection was granted for a cognitive disorder in August 2014. An opinion should be obtained to determine whether the Veteran has a separately diagnosed mental health condition, to include PTSD and/or Major Depressive Disorder, that had its onset in or is otherwise related to service or his service-connected cognitive disorder. 2. Entitlement to a disability rating in excess of 10 percent prior to August 28, 2018 and in excess of 30 percent from October 1, 2019 for a service-connected right knee disability is remanded. 3. Entitlement to a disability rating in excess of 10 percent prior to May 29, 2018 and in excess of 30 percent from July 1, 2019 for a service-connected left knee disability is remanded. 4. Entitlement to a compensable disability rating for service-connected residuals of right olecranon fracture is remanded. The Veteran’s last VA examinations for his service-connected bilateral knee and residuals of right olecranon fracture (right elbow) disabilities were in May 2015 (elbow) and February 2016 (knees). Notably, the United States Court of Appeals for Veterans Claims (Court), in Sharp v. Shulkin, 29 Vet. App. 26 (2017), held that where a veteran reports having flare-ups of joint disability, examination reports must describe the frequency, duration, characteristics, severity, and functional loss due to flare-ups. In another precedential opinion, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations for musculoskeletal disabilities include joint testing for pain on both active and passive motion and in weight bearing and non-weight bearing. The Court’s holding establishes additional requirements that must be met in order to find that a VA examination is adequate, and such requirements have not been met in this case. Thus, on remand, the new VA examinations must comply with the respective considerations addressed in Sharp and Correia. See 38 C.F.R. § 4.2. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for an acquired psychiatric disorder and increased ratings for bilateral knee disabilities and a right elbow disability could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Adjudication of TDIU is deferred at this time. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA and private treatment records pertinent to the Veteran’s claims. 2. Thereafter, schedule the Veteran for a VA examination to assess the nature and etiology of any acquired psychiatric disorder(s) diagnosed during the appeal period, to include PTSD and Major Depressive Disorder. The complete claims file must be reviewed by the examiner in connection with the examination. All indicated tests and studies must be accomplished and all findings must be reported in detail. For each psychiatric disorder diagnosed, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) the disability: (a.) Had its onset in or is otherwise etiologically related to the Veteran’s period of active service; (b.) Was caused by his service-connected cognitive disorder; (c.) Was aggravated by his service-connected cognitive disorder. If the examiner finds that the Veteran does not meet the DSM-5 criteria for an acquired psychiatric disorder, such findings should be reconciled with the medical evidence of record. A complete rationale must be provided for all opinions offered. 3. After completing directive 1, schedule the Veteran for VA examinations to assess the current nature and severity of his service-connected right and left knee disabilities and right elbow disability. The complete claims file must be reviewed by the examiner in connection with the examination. All indicated tests and studies must be accomplished and all findings must be reported in detail. The examiner must conduct range of motion testing for the right and left knees and the right elbow (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing (as appropriate). If the examiner is unable to conduct the required testing for any identified joint or concludes that the required testing is not necessary in this case, he or she should clearly so state, and must explain why this is the case. The examiner must render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination of the knees or the right elbow. If pain on motion in any identified joint is observed, the examiner should indicate the point at which pain begins. Also, the examiner must describe the frequency, duration, characteristics, severity, and functional loss during flare-ups of the disability or with repeated use over a period of time. If the examination is not conducted during a flare-up, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain or any of the other symptoms noted above in any identified joint during flare-ups or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Connor, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.