Citation Nr: 21001467 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-32 270 DATE: January 8, 2021 ORDER Entitlement to service connection for temporal lobe syndrome with ischemic brain damage, to include as secondary to a service-connected disability, is granted. Entitlement to service connection for depressive disorder with anxiety and sleep disorder, to include as due to a service-connected disability, is granted. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, it is at least as likely as not that his temporal lobe syndrome with ischemic brain damage, to include as secondary to a service-connected disability, is related to active duty service. 2. Resolving all reasonable doubt in the Veteran’s favor, it is at least as likely as not that his depressive disorder with anxiety and sleep disorder, to include as secondary to a service-connected disability, is related to active duty service. 3. Resolving all reasonable doubt in the Veteran’s favor, it is at least as likely as not that his lumbar spine disorder, to include as secondary to a service-connected disability, is related to active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for temporal lobe syndrome with ischemic brain damage, to include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1111, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for service connection for depressive disorder with anxiety and sleep disorder, to include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1111, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.310. 3. The criteria for service connection for a lumbar spine disorder, in include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 1111, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to April 1966. The Veteran testified at a videoconference hearing before two separate Veterans Law Judges in January and August 2018, respectively. As the Veteran attended a hearing before two Veterans Law Judges in the same appellate matter, the decision must be decided by a panel of judges. See 38 U.S.C. § 7107(c). During the August 2018 videoconference hearing, the Veteran specifically declined to exercise his right to testify before a third Veterans Law Judge in the current appeal. See 38 C.F.R. § 20.707; Arneson v. Shinseki, 24 Vet. App. 379 (2011). Accordingly, a third Veterans Law Judge has been appointed to the panel. In January 2019, the Board of Veterans Appeals (Board) denied the issue of service connection for a lumbar spine disorder and remanded the issues of service connection for temporal lobe syndrome with ischemic brain damage and service connection for depressive disorder with anxiety and sleep disorder to obtain additional records and a medical opinion. An examination was scheduled, but in August 2020, the Veteran submitted a letter declining to be examined and asking that a decision be made based on the evidence of record. The Board is satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the Veteran timely appealed the denial of service connection for a lumbar spine disorder to the Court of Appeals for Veterans Claims (the Court). In an October 2019 Joint Motion for Partial Remand, the Court remanded the matter for further adjudication after it was determined that the Board provided inadequate reasons and bases for its denial, and because the issue is inextricably intertwined with the issue of service connection for temporal lobe syndrome. The Board subsequently remanded the matter in May 2020 to obtain a new VA examination and opinion and to obtain additional medical records. Again, the regional office (RO) scheduled the Veteran for an examination, but the Veteran’s August 2020 letter declined an examination and asked that a decision be made based on the evidence of record. The Board is satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Because the claim for service connection for a lumbar spine disorder, to include as secondary to a service-connected disability, has been determined to be inextricably intertwined with the Veteran’s claim for service connection for temporal lobe syndrome with ischemic brain damage, to include as secondary to a service-connected disability, the Board finds it appropriate to merge the two appeals. All three issues are now before the Board for further appellate consideration. Finally, the Veteran alleged during the August 2018 hearing and elsewhere throughout the record that he has incurred a cervical spine disorder as a result of his service-connected temporal lobe syndrome and service-connected right elbow disorder. The Board is unable to take jurisdiction of this claim in the first instance, but hereby refers the claim to the RO for development as necessary. Service Connection 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. 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). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 1. Entitlement to service connection for temporal lobe syndrome with ischemic brain damage, to include as secondary to a service-connected disability 2. Entitlement to service connection for depressive disorder with anxiety and sleep disorder, to include as secondary to a service-connected disability The Veteran seeks entitlement to service connection for temporal lobe syndrome with ischemic brain damage and depressive disorder with anxiety and sleep disorder, both of which he contends were caused by his service-connected right elbow disability. Specifically, he alleges that he underwent elbow surgery during service in 1965, and that the anesthesia caused his neurological and psychological symptoms. He contends that almost immediately after he was released from an extended hospitalization, he experienced dizziness, agitation, anger, difficulty with memory, and mood changes that were noticed by others around him. After considering the evidence of record, the Board determines that service connection for temporal lobe syndrome with ischemic brain damage, to include as secondary to a service connected disability, and service connection for depressive disorder with anxiety and sleep disorder, to include as secondary to a service connected disability, are warranted. First, the Veteran’s medical records indicate that he was diagnosed with temporal lobe syndrome with mild ischemic brain damage in December 1992 after being hospitalized for symptoms of confusion, memory lapse, concentration problems, tension headaches, paresthesias, seizures, and anxiety. An MRI confirmed the diagnosis. He was also diagnosed at the time with a personality disorder with changes secondary to temporal lobe syndrome. In June 2006, he was diagnosed with depression, anxiety, and a sleep disorder. The Veteran continues to receive treatment for all the aforementioned disorders with medication and at-home caretakers. Next, the Veteran has submitted multiple private opinions stating that the Veteran’s temporal lobe syndrome with ischemic brain damage and acquired psychiatric disorders were likely caused by adverse effects to anesthesia during his elbow surgery in 1965. First, the Veteran’s physician opined in January 2018 that the Veteran developed insomnia, anxiety, and severe depression “as a result of traumatic effects of the elbow.” In August, September, and December 2018, two additional private physicians opined that the Veteran’s temporal lobe syndrome began when anesthesia was administered during his right elbow surgery in 1966. Finally, in September 2019, the Veteran submitted an additional opinion from a private physician which opined that the Veteran’s temporal lobe syndrome began while the Veteran was given anesthesia during surgery. He explained that “[i]t is well known in medical journals that the most common adverse reactions to local anesthetic agents [are] neurological complications” and that the most common symptoms are seizures and neurologic deficits. All of these opinions indicate that the Veteran continues to have traumatic pain, swelling, depression, anxiety, and difficulty sleeping as a result of the adverse effects to the anesthesia, supporting that it is more likely than not that both the Veteran’s temporal lobe syndrome and acquired psychiatric disorders were the result of his service-connected elbow disability. Ultimately, affording the Veteran the benefit of the doubt, the weight of the evidence supports service connection for temporal lobe syndrome with ischemic brain damage, to include as secondary to a service-connected disability, and depressive disorder with anxiety and sleep disorder, to include as secondary to a service-connected disability. Thus, service connection should be granted. 3. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability The Veteran seeks entitlement to service connection for a lumbar spine disorder, which he alleges is caused by service-connected disabilities. Specifically, he contends that the symptoms of his service-connected temporal lobe syndrome have led to seizures causing the tensing of his back muscles, as well as dizziness causing falls, resulting in degenerative changes in his spine. He also contends that his service-connected right elbow disability prevents him from catching himself when he falls, further exacerbating his lumbar spine symptoms. After considering the evidence of record, the Board determines that service connection for a lumbar spine disorder is warranted. First, the Veteran’s medical records indicate that the Veteran has been seeking treatment for back pain since 1965. In June 1993, x-ray imaging revealed that the Veteran has intervertebral disc degeneration with subsequent stenosis of the lumbar spine, and an August 2016 MRI revealed lumbar spine osteodegenerative changes and multi-level disc desiccation with diffuse disc bulges. He continues to experience pain, muscle spasms, and range of motion limitations and has been treated with medication, physical therapy, TENS unit, chiropractic care, and recommendations for stretching and exercises. Next, the Veteran submitted a letter from a private physician in January 2018 that indicated that the seizures the Veteran experiences, which are a symptom of his temporal lobe syndrome, cause stiffness throughout his trunk and have been occurring since 1965, thereby worsening his lumbar spine symptoms. Finally, the Veteran submitted statements from his caregivers in June 2018 wherein they reported that the Veteran regularly experiences dizziness or seizures that cause him to fall, and his service-connected elbow injury prevents him from protecting himself from the falls. They reported that the Veteran experiences worsening spinal symptoms after such falls. As stated, the record supports that the seizures are a symptom of his service-connected temporal lobe syndrome. Ultimately, affording the Veteran the benefit of the doubt, the weight of the evidence supports service connection for a lumbar spine disorder, to include as secondary to service-connected temporal lobe syndrome with ischemic brain damage and service-connected right elbow disability. Thus, service connection should be granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals TBD To Be Determined Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kimber Veltri, Associate Counsel