Citation Nr: 21000626 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-01 009 DATE: January 5, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) due to heat injury is granted. FINDING OF FACT It is reasonably shown by competent evidence that the Veteran has a TBI due to heat injury sustained during active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, service connection for a TBI due to heat injury is warranted. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty for training (ACDUTRA) from June 11, 1991 to August 23, 1991, and had additional National Guard service from November 1989 to November 1995 (including a period of federalized active duty from June 12 to June 26, 1993); he is a Veteran by virtue of having established service connection for a compensable disability. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision, which in relevant part found that new and material evidence had not been received to reopen a claim of service connection for a concussion and heat exhaustion. In March 2016, a videoconference hearing was held before the undersigned; a transcript is associated with the record. A November 2016 Board decision reopened the claim of service connection for a concussion (claimed as TBI) and remanded it for further development. An October 2018 Board decision denied service connection for TBI. [That decision also denied service connection for residuals of heat exhaustion, vision problems, a disability manifested by fatigue, right and left hip disabilities, right and left ankle disabilities, right and left foot disabilities, asbestosis, obstructive sleep apnea, a thyroid disability, restless leg syndrome, memory loss, and erectile dysfunction (ED), and remanded several other service connection claims. The remanded claims have not been returned to, and reactivated at, the Board; when that occurs, they will be addressed in a separate decision.] The Veteran appealed the Board’s October 2018 decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a May 2019 Joint Motion for Partial Remand (JMPR) by the parties. The parties agreed that remand is warranted in the matter of service connection for a TBI. They also agreed that the CAVC should not disturb the portions of the Board’s decision which denied service connection for residuals of heat exhaustion, vision problems, a disability manifested by fatigue, right and left hip disabilities, right and left ankle disabilities, right and left foot disabilities, asbestosis, obstructive sleep apnea, a thyroid disability, restless leg syndrome, memory loss, and erectile dysfunction, and that those claims should be dismissed. Accordingly, those matters are not before the Board.] A May 2019 CAVC Order vacated the October 2018 Board decision denial of service connection for TBI, the remanded the matter to the Board for action compliant with JMPR instructions. In November 2019, this matter was remanded for additional development. Service connection for a TBI due to heat injury is granted. Legal Criteria 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; 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 current disability and the disease or injury in service. 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). 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. Factual Background The Veteran contends that he has a TBI disability incurred in service. He reported that during an episode of heat exhaustion in June 1993 he sustained a head injury when he fell. See December 2010 statement; see also October 2012 statement. [In an October 2012 statement, he reported that he has a scar on the back of his head from a head injury in service; he reported that a nurse stitched his head up while he was treated for heat stroke.] The Veteran’s service treatment records (STRs) note treatment for heat exhaustion, but contain no mention of a fall or fall-related head injury/TBI. A June 15, 1993 STR notes complaints of nausea and vomiting after working outside all day with his sleeves down (due to sunburn); a liter of normal saline was administered prior to arrival at the clinic. On examination, he was weak, and his skin was red; he reported dizziness while seated; he was alert to time and place. The assessment was possible heat exhaustion; he was observed overnight. The following day he was noted to be “doing well” and to be “hydrated well.” The assessment was resolving heat exhaustion. A July 10, 1993 report of medical history notes the Veteran’s report of dizziness and head injury; the doctor wrote, “Dizzy [with] heat exhaustion at A.T.” and “laceration-scalp.” A July 10, 1993 examination report notes that the Veteran’s head was normal on clinical evaluation. [In a November 1989 report of medical history, the Veteran had also reported a head injury, and that examiner noted a scalp laceration and reduced memory of an event that occurred one year prior.] A July 15, 1993 DA Form 2173 (Statement of Medical Examination and Duty Status) notes, “On 15 June 1993, while working on the Laundry project at Camp Gruber, [the Veteran] became light headed and started vomiting. Medics on site administered fluids and directed [the Veteran] to return to his quarters and remain in bed for the remainder of the day.” A checked box indicates such occurred in the line of duty. A February 1995 annual medical certificate reflects that the Veteran was found fit for duty. An April 1995 Request for Fit for Duty Physical notes that the Veteran “had a heat stroke” during annual training in 1993. “Since then his condition hasn’t seen to get any better. Even now when he gets out in the heat, he still shows and has the signs and conditions of another heat stroke.” A June 2003 private treatment record notes the Veteran’s report of heat stroke in 1992 or 1993. He denied frequent headaches, dizzy spells, and fainting spells, and unconsciousness. In a December 2010 statement, the Veteran reported that he sustained a concussion after collapsing due to a heat stroke. In a July 2013 private medical opinion, Dr. J.E. (board certified in family medicine and environmental medicine) opined it as likely as not that that the Veteran sustained “severe injury to multiple areas in his brain” due to “severe heat exhaustion and/or heat stroke” in service. Dr. J.E. based that opinion on interview/examination of the Veteran, and review of “two and one quarter inch stack of medical records and many of the [V]eteran’s long dissertations.” He noted that during the episode of heat exhaustion, the Veteran’s core temperature was not checked, nor were kidney function and electrolyte tests. Dr. J.E. explained that since the heat exhaustion or heat stroke episode, the Veteran has experienced dizziness, chronic headaches, “dramatic change in his mentation,” and “difficulty around any type of heat.” He opined that the Veteran likely did not have a concussion that caused the brain injury; rather, he opined “It is more likely tha[n] not that the heat itself was so severe that he had an injury to his brain. A concussion would not cause the heat intolerance…” On August 2014 VA mental disorders examination, it was noted that TBI had not been diagnosed. At the March 2016 videoconference hearing, the Veteran testified that in July 2013, a private provider diagnosed a brain injury from heat exhaustion in June 1993. A December 2017 VA mental disorders examination report notes that a TBI diagnosis was not shown in the record. In December 2017, a VA nurse practitioner reviewed the record and provided a negative nexus (to service) opinion. She provided definitions of heat exhaustion, heat injury, and exertional heat stroke. She noted the Veteran’s June 1993 symptoms of light headedness, nausea, and vomiting, and complaint of headache four days later; she also noted there was no documentation of collapse at the time of injury, or significant neurological manifestations/organ failure. She opined that based on such evidence the Veteran’s symptoms were most consistent with heat exhaustion (and not heat injury or heat stroke). She noted the November 1989 report of a prior head injury; she also acknowledged the July 2013 private opinion. She explained that TBI results from a blow or jolt to the head, or from an object penetrating the brain, but does not occur as the result of heat exhaustion per current peer reviewed medical literature. She stated that medical literature indicates acute heat exhaustion is acute, self-limited, and resolves over time. She acknowledged the April 1995 notation of intolerance to heat but found “the statement made is not consistent with any type of long term effect from the heat exhaustion that occurred in 1993.” In October 2018, the Board denied the claim (essentially based on the December advisory opinion), finding that the Veteran did not sustain a TBI his active duty service, and does not have a current disability that may be a residual of a TBI. In the May 2019 JMPR the parties agreed that the Board erred by providing an inadequate statement of reasons or bases as to adequacy of the VA examinations, specifically the December 2017 VA examination, which were not conducted by one of four specialists - a psychiatrist, physiatrist, neurosurgeon, or neurologist – as required (for TBI). Therefore, the Board remanded the claim for an adequate TBI examination addressing whether the Veteran has (has had) residuals of a TBI related to his service, and directed the examiner to reconcile any TBI diagnosis (or lack thereof) with prior conflicting opinions (including the July 2013 private and December 2017 VA medical opinions), and to include rationale for all opinions, citing to supporting factual data and medical principles/treatises. On January 2020 VA (fee basis) examination, the examiner (a psychiatrist) provided a positive nexus (to service) opinion. Following examination/interview of the Veteran, and review of his record, the examiner wrote, “Given the likelihood of the event itself, and the consistent report the claimant has regarding the event and the accompanying falls it is at least as likely as not the claimant has mild TBI resulting from heat stroke and accompanying falls. His [residuals] associated with heat stroke include headaches, episodic dizziness.” She explained that, “While TBI is sometimes narrowly defined as requiring an external force, TBI has also included stroke, brain damage associated with an infective process, as well as heat-induced pathology.” She continued, “Given his history of onset of headaches immediately following the incidents, and development of depressive symptoms shortly thereafter it remains at least as likely as not that claimant has met the threshold for diagnosable TBI, with residuals of headache.” In May 2020, a VA (fee basis) physiatrist reviewed the record and opined that the evidence is against a diagnosis of TBI associated with the June 1993 heat exhaustion incident. He explained that the Veteran did not have heat stroke, which is characterized by hyperthermia, tachycardia, tachypnea, and hypotension. He noted that his “temperature inexplicably was not recorded, but his other vitals were and were normal except for a mildly elevated respiratory rate of 20, which in and of itself is not very meaningful. Thus, he likely had heat exhaustion and not heat stroke.” He noted the Veteran was discharged the following day and that the STRs are silent for a fall or head injury. He opined, “There are likely no residuals of this incident and no evidence he sustained a TBI.” [Neither the January 2020 nor the May 2020 provider reconciled the respective opinion with prior opinions/diagnoses to the contrary.] Analysis Upon review of the service records, medical records, and lay statements, the Board concludes that now the evidence is, at least, in relative equipoise as to whether the Veteran has a TBI related to heat injury in service, and that resolving reasonable doubt in his favor, service connection for TBI is warranted. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to the May 2019 JMPR, the Board remanded the matter for an adequate examination. The AOJ arranged for January and May VA examinations by two of the four types (psychiatrist, physiatrist, neurosurgeon, or neurologist) of specialists considered competent to conduct TBI examinations in accordance with 2007 VA policy. The two providers (a psychiatrist in January 2020 and a physiatrist in May 2020) offered conflicting medical opinions. In January 2020, a psychiatrist diagnosed a “mild TBI”.” She provided a positive nexus (to service) opinion and opined that the Veteran as likely as not “has met the threshold for diagnosable TBI, with residuals of headache.” She explained that while sometimes TBI has been narrowly defined as requiring an external force, TBI can include “heat-induced pathology. The Board observes that the opinion appears consistent with the July 2013 private opinion (by a Board-certified, including in environmental medicine, physician) submitted in support of the claim. In May 2020, a physiatrist opined that the evidence is against a diagnosis of TBI associated with the June 1993 heat exhaustion incident; he opined the Veteran likely experienced heat exhaustion, not heat stroke during service, and that without documented evidence of a fall or head injury, there “are likely no residuals of this incident and no evidence he sustained a TBI.” Neither 2020 consulting provider directly reconciled the opinion offered with the prior opinions of record, as was requested. However, as the Board finds the evidence now adequate to decide the matter in the Veteran’s favor, the Board finds that further development to ensure compliance with its remand instructions is not necessary. As noted above, a psychiatrist and a physiatrist are both considered competent to conduct examinations and offer opinions regarding existence and etiology of TBI. The Board observes however, that psychiatrists specialize in disease of the brain/mental health treatment (and generally received specialized training in neurology if Board certified, as the January 2020 examiner is) while physiatrists specialize in the use of physical means to treat injury or illness. At face value, their opinions place the evidence for and against the claim, at least in equipoise. Both opinions appear to invoke medical principles (regarding what is, is not, considered to constitute a TBI). Again, as was noted neither provider address the rationale provider by the other (and the Board notes that while that May 2020 physiatrist’s opinion is consistent with opinion by the December 2017 VA consulting nurse practitioner). However, given that the injury alleged, and symptoms reported, relate to the brain, the Board finds it reasonable to assume that a psychiatrist (with likely more intense neurology training/expertise) is likely to have a more complete, up-to-date, familiarity with generally accepted medical principles regarding the nature and etiology of TBI. Therefore the posture of the evidence tips in the Veteran’s favor (which the Board notes is not necessary to allow this claim, as the Veteran also prevails when the evidence is in equipoise). Considering the foregoing, the Board finds that it is reasonably shown that the Veteran has a TBI due to heat-related injury in service, and that service connection for TBI is warranted. [The Board reiterates that the TBI is found to be due to a heat injury in service, and not due to a concussion or blow to the head. The record shows the Veteran reported a head injury prior to 1989 (at least four years prior to the heat event on active duty at issue), which was not during a period of qualifying service). It does not show that during recognized active duty service he sustained an external blow to the head, including in a fall. ] [The matters of the rating and effective date for the award of service connection for a TBI are downstream issues. The Board notes, however, that the Veteran is already in receipt of a separate compensable rating for headaches and a separate noncompensable rating for vertigo.] GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.