Citation Nr: 20021114 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 14-26 125 DATE: March 24, 2020 ORDER Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a sleep disorder is denied. Entitlement to an initial compensable rating for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for irritable bowel syndrome is remanded.   FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran had a right hip disability at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran had a left ankle disability at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence of record is against finding that the Veteran had a sleep disorder at any time during or approximate to the pendency of the claim. 4. Residuals of TBI were manifested by some complaints of mild memory loss and headaches, which were accounted for in the ratings for service-connected posttraumatic stress disorder (PTSD) and migraines. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a sleep disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for an initial compensable rating for TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1998 to July 2002. She died in January 2018. The appellant is her mother and has been substituted into the appeal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and February 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In July 2017, prior to her death, the Veteran testified at a Board hearing before the undersigned. This matter was before the Board in July 2018, when it was decided in part and remanded in part. In an August 2019 Order, the U.S. Court of Appeals for Veterans Claims (Court) granted the parties’ Joint Motion for Partial Remand (JMPR), vacated the Board’s August 2019 decision to the extent that it denied the instant issues, and remanded the claim to the Board for further adjudication. In the JMPR, the Court noted that VA treatment records from January 2016 to January 2018 had not been obtained. In the interim, these records were associated with the claims file but have not been considered by the Agency of Original Jurisdiction (AOJ). However, review of this evidence reveals that it is cumulative or duplicative of evidence previously of record or related to other disabilities. Specifically, a thorough review of these VA treatment records indicate they primarily relate to non-service-connected cysts, dental treatment, and to her service-connected acquired psychiatric disorders. To the extent the Veteran’s symptoms of her acquired psychiatric disorders also relate to her claims for service connection for a sleep disorder and a higher rating for TBI, the Board finds that the evidence in the new medical records is duplicative of prior records, and therefore does not require remand for AOJ review. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for a right hip disability The appellant contends the Veteran had a right hip disability related to service. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of a right hip disability and had not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The July 2012 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of dull right hip pain, she did not have a diagnosis of a right hip disability. There is no competent evidence during the Veteran’s lifetime of a right hip disability, to include one manifested by pain, that caused functional impairment. The examiner found no functional loss or functional impairment in the hip or thigh. See Saunders v. Wilkie, No. 2017-1466 (Fed. Cir. 2018). The examiner acknowledged the Veteran’s report of bursitis at the time of her separation from service but noted that no medical records since then showed diagnosis or treatment related to her right hip. The Veteran submitted an August 2017 letter from a private doctor opining a right hip disability was related to her medical service. The doctor specifically noted he reviewed the Veteran’s service records; however, the doctor did not indicate he reviewed any of the Veteran’s post-service medical records. As stated previously, the present question relates to whether the Veteran had a right hip disability at any time since the filing of her claim for service connection. The private opinion does not show a diagnosis of a right hip disability or point to any other current diagnosis of a right hip disability in other medical records. Additionally, the opinion provided does not include any facts used, probative evidence reviewed, or detailed rationale. For these reasons, the Board finds this is not a probative medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). Consequently, the Board gives more probative weight to the July 2012 VA examiner’s findings. While the Veteran believed she had a right hip disability, she was not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence regarding diagnosis. The Board has sympathetically considered the evidence of record, to include the testimony of the Veteran. Without a competent diagnosis of disability, however, the claim must be denied. 2. Entitlement to service connection for a left ankle disability The appellant contends the Veteran had a left ankle disability related to a sprained ankle during basic training. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of a left ankle disability prior to her death, and she had not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The July 2012 VA examiner evaluated the Veteran and determined that, while she experienced subjective symptoms of left lateral ankle pain, she did not have a diagnosis of a left ankle disability. The examiner acknowledged the Veteran’s report of spraining her ankle during service and noted one undated reference to “numbness and tingling in the foot,” but stated that the medical records showed no diagnosis related to the left ankle. There is no competent evidence during the Veteran’s lifetime of a left ankle disability, to include one manifested by pain, that caused functional impairment. The examiner found no functional loss or functional impairment in the ankle. See Saunders v. Wilkie, No. 2017-1466 (Fed. Cir. 2018). The Board acknowledges that the Veteran submitted an August 2017 letter from a private doctor opining a left ankle disability was related to her medical service. This letter was the same as the one for a right hip disability. To reiterate, the opinion noted that the Veteran’s service records were reviewed, but it did not show that any present medical records had been reviewed. While the doctor opined that a left ankle disability was related to service, he did not provide a diagnosis of a left ankle disability, nor did he indicate the presence of one in the Veteran’s medical records. The opinion does not provide an explanation that contained clear conclusions and supporting rationale. For these reasons, the Board finds it of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). Consequently, the Board gives more probative weight to the July 2012 VA examiner’s findings. While the Veteran believed she had a left ankle disability, she was not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board has sympathetically considered the evidence of record, to include the testimony of the Veteran. Without a competent diagnosis of disability, however, the claim must be denied. 3. Entitlement to service connection for a sleep disorder The appellant contends the Veteran had a sleep disorder related to service. The question for the Board is whether the Veteran had a current disability that began during service or was at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a current diagnosis of a separate sleep disorder — apart from the sleep symptoms that were part of her service-connected psychiatric disorder — prior to her death, and had not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The July 2015 VA examiner acknowledged one of her psychiatric symptoms was chronic sleep impairment. While the Board acknowledges her reports of experiencing sleep difficulties in service, a review of her medical records — to include her newly-acquired VA records from January 2016 to January 2018 — did not show any diagnosed separate sleep disorders. To the extent the January 2016 to January 2018 medical records discussed sleep, they indicated continued complaints of nightmares and difficulty falling asleep. These complaints were accounted for in the Veteran’s assigned rating for her acquired psychiatric disorders. The Board acknowledges that the Veteran submitted an August 2017 letter from a private doctor opining a sleep disorder, specifically insomnia, was related to service. However, the opinion did not provide a basis for the diagnosis of insomnia, nor did it indicate it included a review of the Veteran’s post-service medical records. The Board notes that the Veteran had a history of complaints of insomnia, which was considered when assigning the rating for her service-connected psychiatric disorder. The private opinion did not discuss the Veteran’s service-connected psychiatric disorder and any relationship between that and the Veteran’s sleep complaints. Additionally, the opinion provided did not discuss any facts used, probative evidence reviewed, or detailed rationale. For these reasons, the Board finds this the opinion is not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). While the Veteran believed she had a sleep disorder apart from her psychiatric symptoms, she was not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board has sympathetically considered the evidence of record, to include the testimony of the Veteran. Without a competent diagnosis of disability, however, the claim must be denied. 4. Entitlement to an initial compensable rating for traumatic brain injury (TBI) The appellant contends an initial compensable rating for TBI is warranted, as the Veteran reported problems with memory, attention, and concentration, as well as social activities and interactions. The Board notes that the Veteran was service connected for PTSD, previously diagnosed as a depressive disorder with anxiety, which was rated as 50 percent disabling, as well as migraines, which were rated as 30 percent disabling. Thus, many of her symptoms were encompassed by these ratings. The RO evaluated her TBI residuals as 0 percent disabling under Diagnostic Code 8045. Under Diagnostic Code 8045, there are three main areas of dysfunction that may result from a TBI: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. Diagnostic Code 8045 includes a table titled “Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified,” which addresses 10 facets of a traumatic brain injury. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level- the highest level of impairment-labeled as “total.” A level 0 impairment is consistent with a 0 percent disability rating, level 1 with 10 percent rating, level 2 with 40 percent, level 3 with 70 percent disability rating, and the highest level (“total) with a 100 percent disability rating. The overall evaluation assigned is based upon the highest level of severity for any facet. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet. However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, even if that diagnosis is based on subjective symptoms. In this case, as noted previously, service connection was already in effect for a depressive disorder with anxiety/PTSD and migraines. On October 2011 VA examination, the Veteran reported headaches with dizziness, sleep disturbances, mild fatigue and malaise, mild memory impairment, and a variety of other psychiatric symptoms. She denied all other symptoms. A “mini mental status examination” resulted in a perfect score, suggesting no objective evidence of cognitive impairment, despite complaints of subjective mild memory loss. The examiner noted that social interactions were occasionally inappropriate and that the Veteran reported subjective symptoms that mildly interfered with work, daily living, and close relationships. The diagnosis was mild TBI. On January 2013 VA examination, the Veteran reported no complaints of impairment of memory, attention, concentration, or executive functions. Judgment was normal, social interactions were routinely appropriate, the Veteran was always fully oriented, and motor activity and visual spatial orientation were normal. The examiner noted the Veteran reported subjective symptoms of headaches that did not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. No neurobehavioral effects were noted, the Veteran was able to fully communicate, and was fully conscious. After review of the evidence, including the newly acquired VA treatment records from January 2016 to January 2018, the Board finds that the evidence does not show that a compensable rating is warranted for residuals of TBI. Rather, all of the Veteran’s subjective complaints were already encompassed by her assigned ratings for her PTSD and migraines. In support of this conclusion, the Board notes that a September 2015 rating decision included symptoms of difficulty in establishing and maintaining effective work and social relationships; forgetting directions, recent events, and names; and mild memory loss as support for the assigned 50 percent rating for PTSD. By its nature, the Veteran’s headache symptoms are encompassed by the 30 percent rating for migraines. REASONS FOR REMAND Entitlement to service connection for irritable bowel syndrome is remanded. The Board cannot make a fully-informed decision on this issue because no VA examiner has opined whether irritable bowel syndrome was related to her service-connected disabilities. The Board notes that an August 2017 private medical opinion suggested irritable bowel syndrome was related to “numerous medications” that the Veteran was taken. While the opinion did not provide a rationale, a VA opinion is needed to discuss this theory. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s irritable bowel syndrome was at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated   beyond its natural progression by service-connected disability, to include any medication taken for her service-connected disabilities. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dean, 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.