Citation Nr: 20006789 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 17-53 211 DATE: January 28, 2020 ORDER New and material evidence having been received, the claim for service connection for a traumatic brain injury (TBI), claimed as concussion, is reopened. Entitlement to service connection for a TBI, claimed as concussion, is denied. REMANDED Entitlement to a rating in excess of 10 percent for a left ankle and left foot disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a concussion was previously denied by a March 2010 rating decision; the Veteran did not complete an appeal of the decision and documentation constituting new and material evidence was not actually or constructively received within the applicable time period. 2. Additional evidence received since the March 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for TBI, claimed as a concussion, and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against a finding that the Veteran’s memory loss, dizziness, headaches, and other reported symptoms were incurred in service or are otherwise related to an in-service injury. CONCLUSIONS OF LAW 1. The March 2010 rating decision denying service connection for a concussion is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a TBI, claimed as concussion. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for a TBI, claimed as concussion, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to August 1984. This matter is on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, a hearing was held before the undersigned. A transcript of the hearing is in the record.   1. New and Material Evidence In March 2010, the RO denied the Veteran’s claim of service connection for a concussion. The March 2010 rating decision denied the claim essentially based on a finding that the Veteran did not have current symptoms caused by the in-service head injury. In May 2010, the Veteran submitted a Notice of Disagreement, and the RO issued a Statement of the Case (SOC) in December 2011. The Veteran did not appeal the decision by submitting a Form 9, Appeal to Board of Veterans’ Appeals, nor was any new and material evidence actually or constructively received within the applicable time period; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Once the case is reopened, the presumption as to the credibility no longer applies. Justus, 3 Vet. App. at 513. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. At the time of the March 2010 rating decision, service treatment records reflected that the Veteran had a concussion in service due to a sports injury. The Veteran was also provided a VA examination in March 2010 in which the examiner opined that the Veteran has no evidence of a current concussion and that the symptoms of the minor head trauma in service had resolved. The record since the March 2010 rating decision contains new evidence that raises a reasonably possibility of substantiating the claim, including but not limited to testimony from the December 2019 hearing in which the Veteran’s representative stated that the Veteran has experienced ongoing symptoms of memory loss, dizziness, and headaches since 1979 or 1980. As explained above, the Board must presume that these statements are true for the purpose of determining whether to reopen the Veteran’s claim. These lay statements raise a reasonable possibility of substantiating the claim because they provide greater detail into the nature of his symptoms. The Board therefore finds that this evidence is new and material, and the Veteran’s claim is reopened. 2. Traumatic Brain Injury (TBI) The Veteran contends that he is entitled to service connection for a TBI. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the 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.   In this case, the record reflects that the Veteran has reported current symptoms which he attributes to a concussion. During the December 2019 hearing, the Veteran reported various symptoms, to include headaches, memory loss, and difficulty grasping words. A September 2017 VA examination also notes symptoms from an April 2015 TBI evaluation including but not limited to headaches, dizziness, memory loss, being easily distracted, and needing to reread text multiple times. The Board finds that the Veteran is competent to report these readily observable symptoms and finds these reports credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the first element of Shedden is satisfied. The Board also finds that the second element of Shedden is satisfied, as the record reflects that the Veteran experienced an in-service injury. Specifically, April 1980 service treatment records reflect that the Veteran was hospitalized for 39 days after running into another member of his softball team. The clinician noted that the Veteran was unconscious for several moments and then disoriented. The Veteran did not vomit, have a seizure, or become incontinent. The Veteran was described as a “dazed and an inconclusive historian.” Physical examination revealed the Veteran was “confused, cooperative … oriented times one, complaining of headache….” Moderate tenderness along the left frontal area of the skull was noted. No ecchymosis, crepitus, laceration, or hematoma was noted. The Veteran spontaneously moved all four extremities and extraocular movements were intact. The remainder of his head and neck examination was within normal limits. The Veteran was initially placed on four days of elevation and icing for an ankle injury until his sensorium and motor function cleared. He was diagnosed with a concussion. However, upon review of the record, the Board finds that the evidence preponderates against a finding that the current symptoms reported by the Veteran are related to the in-service injury. During a March 2010 VA examination, the examiner opined that there was no evidence of a current concussion and no evidence to support a claim that he has symptoms caused by a concussion. She stated that one concussion does not cause another concussion and that he had minor head trauma that occurred 30 years ago and that his symptoms resolved. She stated that there is no evidence of a medical connection between the Veteran’s current headaches and his “remote, minor head trauma.” The Board assigns a low degree of probative value to this opinion because it does not reflect full consideration of the symptoms currently reported by the Veteran. During an August 2015 VA examination for a separate acquired psychiatric disorder claim, the examiner noted that the Veteran “ha[s] a diagnosed traumatic brain injury” but stated that he could not “support an independent, cognitive diagnosis at the time.” He stated that the Veteran’s VA record revealed his classification as having experienced a TBI but that the assessment “noted the vague nature of reports from the distant past.” He also noted that the Veteran “was able to recall recent events during the present interview, and results of objective psychological testing he completed did not fully support his symptom reports.” The Board finds that the August 2015 examiner’s opinion has no probative value for establishing that the Veteran has a current TBI related to service because he was unable to provide his own independent assessment. However, his comments are probative to the extent that they suggest that objective psychological testing did not fully support the reported symptoms. The record also reflects that the Veteran has undergone treatment for a TBI, as shown in September 2016 and August 2017 VA treatment records in which speech pathologists J.L. and E.H. stated that the Veteran was “identified with [a] TBI” with a history of concussion. However, the Board finds that these treatment records have no probative value for the purpose of establishing the presence of a TBI related to service as they contain no supporting rationale. The Veteran was provided with an additional VA examination in September 2017 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided a detailed summarization of the evidence discussed above. He noted that the Veteran reported some headaches and cited forgetfulness with good and bad days. The Veteran reported a quick temper and avoiding others who irritate him. He stated that he cannot remember much and reported word finding problems. The examiner noted that he provided a detailed narrative with a logical account, he had a clinically apparent solid memory recall, and he was able to reference content in medical records. The Veteran cited sequela of cognitive problems, word finding problems, and trouble remembering the names of his grandchildren. He cited headaches and reported that he always has them and that they occur suddenly. The examiner thereafter opined that the Veteran did not have any subjective symptoms, conditions, or residuals attributable to a TBI. He explained that the Veteran experienced transient symptoms after hitting his head while running into another player during a softball game and stated that it resolved, which is generally the expected course. He stated that a concussion from a sports injury does not mean one has a TBI and that it is more likely that a person experiencing a mild concussion will not have any problems from it afterwards, especially in a young healthy person. He explained that the sequela depends on the nature and severity of the injury at the time, which is perhaps the best predictor for prognosis. He stated that the Veteran had a mild concussion without lasting sequela in his records and that this is the course that is expected. He stated that even among persons with much more severe head injuries there can be remarkable recovery. He explained that the worst symptoms and sequela would be in proximity to the injury, and that was exactly what the Veteran’s records showed. He noted that the Veteran left service and had decades of his life without evidence of sequela and that the likelihood of improvement without sequala is probable. He indicated that the Veteran provided subjective symptoms, including to those providers who have given care and diagnosis. He explained that treating providers are likely to treat based upon subjective symptoms to which one reports; but that a forensic approach is more based upon objective evidence. Ultimately, the examiner summarized his rationale as being that there were no apparent sequelae in the Veteran’s service treatment records after treatment for the initial event and that this was the likely course. He commented that the Veteran’s service was followed by some 25 years of solid work history with no apparent sequela and that this was also the likely course. He opined that the probability of the head injury occurring 37 years ago without apparent lasting sequela in proximity or in decades following is very low. Thus, he concluded the evidence did not substantiate that the Veteran had TBI sequela from what happened some 37 years ago. The Board assigns a high degree of probative value to this opinion as it reflects thorough consideration of the Veteran’s medical history, the nature of the injury sustained in service, and his current symptomatology. The Board acknowledges the Veteran’s recent statements that he has been experiencing symptoms including headaches and memory loss since the in-service concussion. However, the Board finds that these statements do not credibly establish a history of sequela since the injury. The record reflects that the residual effects of the sports injury are well documented in the Veteran’s service treatment records. For example, April 1981 service treatment records note complaints of the left leg giving out and a history of injury to the ankle area (referencing the sports injury), and July 1981 service treatment records note left ankle swelling and soreness that began “1 yr ago and has had problems [with] ankle since then.” However, service treatment records do not note any symptoms such as headaches or memory loss. The record contains no other evidence that contemporaneously documents such symptoms in the decades following the injury. As the Veteran’s service treatment records otherwise provide thorough documentation of the Veteran’s symptoms and treatment during that time, the Board finds the omission of any noted symptoms of headaches or memory loss after the injury to be significant. Further, the contemporaneous service separation examination from July 1984 specifically notes that a clinical evaluation of the Veteran was normal. These inconsistencies compel the Board to conclude that the more recent statements made in the course of seeking VA benefits are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). To be clear, the Board is not questioning the Veteran’s honesty or moral character. The Veteran is attempting to recollect events that transpired a long time ago and the passage of time, along with the inconsistencies noted above, compels the conclusion that the Veteran is not an accurate historian as to these particular statements. The Board therefore affords them no probative weight and finds that the record does not establish continuous symptoms such as headaches and memory loss since the in-service injury. The Board also acknowledges the Veteran’s representative’s argument at the December 2019 hearing that the Veteran had a cold weather injury from being left out in a field and that the Veteran blacked out while he was there and sat in the field for a long time without getting help. His representative contended that this black out was reflective of residuals of the concussion during service. However, a review of the record reflects that the Veteran was treated for cold weather injuries in January 1979, which is prior to the Veteran’s April 1980 concussion. As such, the Board places little weight of probative value on these contentions as they are based on an inaccurate premise. There is also no evidence in the record indicating that the event leading to the Veteran’s cold weather injuries resulted in the current neurocognitive symptoms he experiences. Accordingly, the Board finds that the evidence of record preponderates against a finding that the Veteran’s current symptoms were incurred in or are otherwise related to the in-service injury. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the Board finds that service connection is not warranted, and the claim is denied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a left ankle and left foot disability is remanded. The Veteran contends that he is entitled to an increased rating for his service-connected left ankle and left foot disability. He is currently assigned a 10 percent evaluation under a single Diagnostic Code (DC 5010-5271) for limited motion of the ankle. The Veteran was most recently provided with a VA examination for his left foot and left ankle disability in August 2015. However, July 2018 VA treatment records reflect that the Veteran reported that his condition has worsened. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As this evidence indicates a potential worsening of the condition since the last VA examination, remand is necessary to provide the Veteran with a new examination to evaluate the current severity of his service-connected left ankle and left foot disability. Additionally, the Board finds that the examination should be completed for both the left ankle and left foot as a May 2018 rating decision awarded service connection for left ankle arthritis and combined the left ankle disability with the evaluation of the left foot, providing an increased 10 percent rating for the disability throughout the appeal period. As such, both the left ankle and left foot should be examined to ensure the appropriate evaluation of the Veteran’s disability, including whether any separate ratings are warranted. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to TDIU is remanded. The Veteran contends that he is entitled to a TDIU. However, the Board finds that a VA examination must be scheduled to determine the functional impairment from the Veteran’s service-connected disabilities. The record reflects that the Veteran received a fully favorable decision from the Social Security Administration (SSA) in November 2015 and was found to have impairments that cause significant limitations on his ability to perform basic work activities. The Veteran’s representative also requested during the December 2019 hearing “a closer look at the individual unemployability based on what the Social Security records state because they [are] very clear cut and dry.” However, the Board notes that it is not bound by the findings of disability or unemployability from an administrative decision from SSA, but rather, such findings may be relevant evidence to be considered in a TDIU claim. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (ruling that although it was probative evidence to be considered in the claim with VA, the SSA’s favorable determination in that case, for example, was not dispositive or altogether binding on VA since the agencies have different disability determination requirements).   Additionally, the evidence contained in the SSA records reflect consideration of the functional impairment caused by all of the Veteran’s disabilities, to include his nonservice-connected disabilities. When evaluating entitlement to TDIU, the pertinent inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Although the record reflects that the Veteran has been provided with various VA examinations for his separate service-connected disabilities, he has not been provided with a VA examination which considers the functional impairment of all his service-connected disabilities in combination. 38 C.F.R. § 4.15. The Board therefore finds that an examination must be scheduled to determine the collective functional impairment caused by the Veteran’s service-connected disabilities. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2018 to the present. 2. After completing the development in item 1, schedule the Veteran for an examination or examinations by an appropriate clinician to determine the current severity of his service-connected left ankle/foot disability. The examiner should evaluate the left ankle and the left foot and provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s left ankle/foot disability under the rating criteria. When evaluating limitation in range of motion, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the development in items 1 and 2, schedule the Veteran for an examination for his TDIU claim. The claims file should be made available to the examiner for review. The examiner is asked to provide an opinion on the functional impairment caused by the Veteran’s service-connected disabilities (currently Raynaud’s phenomenon; residuals of a cold injury for the left hand, right hand, left ear; left ankle/foot traumatic arthritis; tinnitus; left knee strain; and right ear hearing loss). In so doing, the examiner should take into consideration the Veteran’s level of education, special training, and previous work experience, as reflected by the evidence of record. The examiner must not consider his age or any impairment caused by nonservice-connected disabilities. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the   clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, Associate 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.