Citation Nr: 21001846 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-28 927 DATE: January 12, 2021 ORDER 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include memory loss, is denied. REMANDED 2. Entitlement to service connection for headaches is remanded. FINDING OF FACT The Veteran is not shown to have current residuals from a TBI in service. CONCLUSION OF LAW Service connection for residuals of a TBI is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1992 to December 1999. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 Department of Veterans Affairs (VA) rating decision. In October 2015, a videoconference hearing was held before the undersigned; additional evidence received during the hearing and a transcript of the hearing are in the file. In January 2016, and July 2017, the Board remanded the matters for additional development. 1. Entitlement to service connection for residuals of a TBI, to include memory loss, is denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the disease or injury inservice. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran alleges that he has memory loss and headaches as residuals of head injuries sustained in a motor vehicle accident in service in 1993/1994, when a ladder fell, striking his head in October 1997, and in a mountain biking accident during service in Japan. His service treatment records (STRs) show that in October 1997 he was seen for a head injury sustained when a ladder blown over by jet exhaust fell on him. He denied loss of consciousness, and endorsed some transient loss of right ear hearing. The diagnosis was closed head trauma - mild hematoma, subgaleal, stable. The STRs, including a November 1999 report of medical assessment, are otherwise silent for complaints, treatment, findings, or diagnosis related to head injuries or memory loss. A March 2004 VA treatment record notes that on mental status examination, the Veteran was fully alert and fully oriented, his memory was intact, his thought process was clear, his thought content was normal, and there was no impairment in his speech, hearing, or language. A May 2009 673rd medical group treatment record notes that the Veteran denied having headache, vertigo, lightheadedness, fainting, or motor disturbances. A September 2009 673rd medical group treatment record notes that the Veteran’s recent memory and thought processes were not impaired. An August 2010 treatment record from Wilford Hall Medical Center notes that chronic posttraumatic headache was diagnosed. The Veteran reported that his headaches occur once a week, the pain is usually frontal or bitemporal, and it is accompanied by severe photophobia and phonophobia. He related that in or about 1999, he began to notice problems with short term memory. He indicated that he forgets conversations, appointments, and tasks. Dr. K.O., M.D., opined that the timing of onset and the characteristics of the headaches would suggest that the problem results from a concussion in service, and that it is doubtless his emotional issues are playing a role in delaying recovery and even exacerbating the condition. Dr. K.O. further opined that because the Veteran began to notice the memory problems about two years after the concussion, it was doubtful that the memory problems resulted from a TBI, although it could not definitely be ruled out. August 2010 neurological testing showed that the Veteran’s cranial nerves were normal, no sensory examination abnormalities were noted, and there were no coordination/cerebellum abnormalities. He had moderately impaired balance on both feet and markedly unsteady tandem gait, but his deep tendon reflexes were normal. A September 2010 3rd medical group treatment record notes that the Veteran reported headaches, difficulty understanding speech, decreased concentration ability and memory lapses. His processing skills testing scores were predominately in the mild/moderate deficit range for visual memory processing and for auditory memory processing. A November 2010 opinion by Dr. K.O. indicates that it is more likely than not that the Veteran’s chronic posttraumatic headache was caused by a TBI in October 1997. Dr. K.O. noted that he examined the Veteran and reviewed his STRs and postservice medical records, including records of the TBI in October 1997, and explained that the Veteran has no other known risk factors that may have precipitated his current condition. A November 2010 opinion by A.C., CCC-SLP, an Air Force speech and language pathologist, indicates that it is more likely than not that the Veteran’s severe functional impairment was caused by an October 1997 TBI in October 1997, explaining that the Veteran has no other known risk factors that may have precipitated his current condition. It was noted that the Veteran has been under her care since September 2010 (for loss of memory, attention, and concentration) and that she had examined him and reviewed his STRs and postservice medical records, including records of the October 1997 TBI. On December 2010 VA neurological examination, the Veteran reported a head injury during service in 1997, that he experienced 3 strong and 20 light headaches per month, and that he took Topamax and Tylenol. On mental status examination, the Veteran was alert and oriented and had normal speech and language. All cranial nerves were intact, cerebellar examination was normal, and there were no carotid bruits. Muscle tone was normal, there was no muscle atrophy, and there were no physical findings of autonomic nervous system impairment, gait abnormalities, imbalance, tremors, spasticity, rigidity, or cranial nerve dysfunction. Testing showed that with head movement to the right, the Veteran could not read standardized characters with rapid head movement. This was a non-localizing finding that could be either central or peripheral in origin. The diagnosis was tension headaches. A December 2010 VA examiner opined that the Veteran does not suffer from a pathological condition manifested by headaches; he has tension headaches associated with his depression. On December 2010 TBI examination, the Veteran reported sustaining a head injury from a motor vehicle accident (MVA) in-service in 1993 and an additional head injury in October 1997. He reported experiencing headaches since the 1997 injury. He reported dizziness 3 times a week, no problems with mobility, occasional poor balance, moderate memory impairment, and difficulty concentrating and paying attention. He related that he occasionally choked on food and saliva. He denied having vision problems or sensory changes, but reported hypersensitivity to light. A December 2010 VA examiner opined that the Veteran did not have any cognitive symptoms from a TBI. The examiner explained that although the Veteran endorsed memory loss, testing did not find objective evidence of memory loss. A September 2012 VA examiner’s opinion and September 2013 addendum indicate that the Veteran meets the criteria for a diagnosis of mild TBI, and his residual signs/symptoms are less likely than not caused by or the result of the TBIs in service. On June 2016 VA examination, the examiner opined that the time interval between the Veteran’s discharge and the emergence of his symptoms do not support that posttraumatic headaches, dizziness, memory lapses, or any of the other associated symptoms were caused by his head injury in service. She observed that there was no evidence for continuity of those symptoms (except depression and anxiety) in the most recent, dated in 2016, VA treatment records. A June 2017 VA treatment record notes that examination found the Veteran had no psychomotor retardation, no tics, and no tremors. His speech rate and rhythm were normal, his thought process was mostly logical and goal directed, and his recent and remote memory was grossly intact. On May 2018 VA examination, the examiner opined that it was less likely than not that the Veteran’s claimed TBI residuals were related to a biking accident in Japan during service, a 1993 MVA during service, or an October 1997 head injury during service. He explained that on review of all the available evidence, it was his opinion that there are no symptoms, pathology, or impairment attributable to a TBI sustained in service. He noted that an October 1997 STR reflects that the Veteran was seen for a head contusion after being struck on the head by a ladder; there was no loss of consciousness, and he reported some transient loss of hearing in the right ear. He had no symptoms at the time of the examination, had a normal neurological examination, and received diagnoses of a closed head trauma and a mild hematoma. He was directed to go to his quarters for observation and instructed to return to the clinic if any symptoms worsened. There are no followup notes indicating there were further symptoms. The examiner indicated that such an event does not meet the criteria for a TBI. The examiner notes that he reviewed the STRs and acknowledged that the Veteran was seen on multiple occasions for headaches due to allergic reactions and a viral syndrome that resolved, and that on July 1999 post deployment physical and December 1999 service separation examination, there was no mention of headaches, dizziness, memory problems, depression, or anxiety. A 2007 head CT scan (after the Veteran was struck on the head with a bottle) showed soft tissue swelling but no evidence of an intracranial abnormality. The examiner also noted that he reviewed an August 2010 medical statement by the Veteran’s speech pathologist that relates his “severe functional impairment” to an October 1997 TBI in service, and a November 2010 medical statement by Dr. K. O. that related the Veteran’s headache to an October 1997 TBI in service. He noted that the problem list (from multiple 2011 treatment records) included a history of TBI, memory lapses and loss, and chronic post traumatic headaches. A June 2011 brain MRI showed no acute intracranial abnormalities, acute hemorrhage, or old hemorrhagic products. Further review of the file found that the Veteran suffered (and continues to suffer) from a major depressive disorder, anxiety disorder, and a history of PTSD. A 2012 treatment record from Dr. K. O. notes an initial diagnosis of chronic posttraumatic headache (two weeks later changed to migraine headache). The examiner then further explained his opinion, noting that there were previous examiners that relied on a history of TBI to presume there was a TBI. However, there are not any [clinical] records that show objective evidence of a TBI. Furthermore, diagnostic imaging is not consistent with TBI. The 2011 imaging likely reflects the presence of migraine headaches. Although previous examiners indicate there was mild TBI by history [emphasis added], mild TBI symptoms typically resolve within 2 weeks. A multitude of studies has shown that the vast majority of mild TBI symptoms resolve in 3 months or less. According to the World Health Organization (WHO) collaborating center task force on mild TBI, there are consistent findings that early cognitive deficits, and other symptoms of mild TBI are largely resolved within a few months post-injury, with most studies suggesting resolution within 3 months. Patients who have mild TBI with neuropsychological impairment and functional disability that are disproportionate to objective injury, especially in the presence of symptoms that are inconsistent with known effects of neurological lesions are often found to be involved in litigation and depression is a common characteristic in this population. In review of the Veteran’s history, it was noted that he has long been treated for psychiatric disease including depression and anxiety. His treatment notes from the TBI clinic including from Dr. K. O., his treating physician for several years, refer to his psychiatric co-morbidities and their prominence in his symptoms. An August 2010 treatment record notes that “doubtless his emotional issues are playing a role in delaying recovery and even exacerbating the condition.” In the treatment notes from the 673rd medical clinic, the reports indicate that the Veteran’s symptoms including headaches and cognitive impairment, gradually increased over time. This finding is not consistent with a TBI [disability picture]. The natural history of TBI is that the symptoms are worst at the time of injury and decrescendo (improve) over time. The Veteran’s history of TBI events and his symptoms have varied to a great degree. On the current (May 2018) examination, the Veteran had a normal neurologic examination and scored 27/30 on the MMSE (normal range). He indicated that he had three degrees: associates, bachelors, and most recently completed a master’s degree in aeronautical science in 2017. He noted a history of mental health issues including anxiety, depression, and PTSD. He also reported a history of alcohol abuse, insomnia, and CPAP-dependent sleep apnea. He sleeps about 4 to 5 hours a night at present which has gone on for many years. Given this information, the Veteran’s reported cognitive impairment (memory loss) and his emotional/behavioral symptoms are likely due to a combination of his mental health issues as well as his poor sleep and substance abuse. Therefore, without evidence of TBI in service and with more likely [nonservice-related] explanations for his symptoms, the Veteran’s claimed TBI is less likely than not attributable to any in service event or illness. It is not in dispute that the Veteran sustained head trauma and now has headaches and reports memory loss. The remained question to be addressed is whether the head trauma in service resulted in a TBI with current residual symptoms. There is medical opinion evidence for and against this claim. The August and November 2010 opinions of Dr. K.O. and the November 2010 opinion by A.C. do not acknowledge the absence of complaints of headaches or memory loss related to the October 1997 injury in service; the duration of the time interval between the head injury in service and the initial postservice notation of headache and memory loss complaints f in 2006; or that provider’s own earlier findings suggesting there is a psychiatric component to all of the Veteran’s symptoms. Accordingly, the Board finds that the August and November 2010 opinions by Dr. K.O. and the November 2010 opinion by A.C. are merit lesser (less than persuasive] probative value. The December 2010 VA examiner’s opinion (against the Veteran’s claim) does not address Dr. K.O.’s November 2010 opinion that the Veteran’s posttraumatic headache is related to a head injury in service in October 1997, or that VA treatment records show a diagnosis of, and treatment for, migraine headache since January 2012. Accordingly, the Board finds the December 2010 VA examiner’s opinion also lacking in legal merit (less than persuasive). December 2010 and September 2012 VA examiners’ opinions and the September 2013 addendum (all against the Veteran’s claim) did not address April 2012 treatment records from Wilford Hall Medical Center that show a diagnosis of, and ongoing treatment for, memory loss. Therefore, they also are lacking in probative value. Regarding the June 2016 VA opinion, the examiner made a finding of mild memory loss without objective evidence on testing, but later in the opinion noted that no neuropsychological, laboratory, or diagnostic testing had been performed. Further, the provider did not offer an opinion regarding the etiology of the Veteran’s headaches. Consequently, this opinion is inadequate for rating purposes, and also lacks probative value. On May 2018 VA examination, the examiner opined that it was less likely than not that the Veteran’s claimed TBI residuals were related to a biking accident in Japan during service, a 1993 MVA during service, or an October 1997 head injury during service. He explained that in review of all the available evidence, it was his opinion that there are no symptoms, pathology, or impairment attributable to a TBI sustained in service. The examiner noted that previous examiners who relied on a history of TBI to presumed the presence of TBI, and that there were no records with objective clinical evidence of a TBI. Furthermore, the Veteran’s imaging was noted to have been inconsistent with TBI (2011 imaging likely reflects the presence of migraine headaches). Although previous examiners found there was mild TBI by history, mild TBI symptoms typically resolve within 2 weeks (weighing against current residual disability from such injury) . The examined explained that a multitude of studies has shown that the vast majority of mild TBI symptoms resolve in 3 months or less. The examined noted that treatment notes from the 673rd medical clinic, indicate that the Veteran’s symptoms, including headaches and cognitive impairment, gradually increased over time and observed that this finding is inconsistent with mild TBI. The natural history of TBI is that the symptoms are worst at the time of injury and decrescendo (or improve) over time. The examiner concluded that given the foregoing information, the Veteran’s reported cognitive impairment and his emotional/behavioral symptoms are likely due to a combination of his mental health issues, poor sleep, and substance abuse. The opinion is probative evidence against the Veteran’s claim, and the Board finds it persuasive. The examiner thoroughly reviewed the record and considered the other VA and private opinions. He supported the opinion offered with rationale that cites to factual data and numerous medical journal articles. The provider is a medical professional with subject matter expertise, and addressed the opinions to the contrary, citing to clinical data that weigh against those conclusions reached. His opinion against the claim outweighs in probative value the evidence supporting the claim. Considering the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has residuals of a TBI that is related to a head injury in service. Accordingly, the appeal seeking service connection for TBI residuals must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND 2. Entitlement to service connection for headaches. The July 2017 Board remand directed that, if the Veteran was determined to not have any residuals of a TBI in service, (as above) but exhibits symptoms such as headache), the examiner must identify the etiology for each such symptom that is considered to be more likely. On May 2018 examination, the examiner notes that 2011 imaging likely reflects the presence of migraine headaches. He explained that the Veteran’s headaches have been treated as migraine headaches and as post traumatic headaches (with the assumption of TBI). He opined that there was no objective evidence of TBI, migraine headaches are classified as a primary headache and cannot be attributable to TBI, and the Veteran’s history was not consistent with post traumatic headache. He indicated that the Veteran’s report of headaches increasing in severity over time is inconsistent with post traumatic headaches, which improve over time. The etiology for the headaches was not identified. Therefore, another remand for an addendum opinion is necessary. The most recent records of the Veteran’s VA treatment in his electronic claims file are from February 2018. Updated records of private and VA treatment he has received for headaches are pertinent evidence with respect to the instant claim (and VA records are constructively of record), and must be secured. The matter is REMANDED for the following: 1. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for headaches, (to specifically include from Elmendorf Air Force Base Regional Hospital and from Wilford Hall Medical Center) and to provide all releases necessary for VA to secure any private records of such evaluations and/or treatment. Secure complete clinical records of such evaluations and/or treatment from all providers identified, to specifically include all updated VA records since February 2018. 2. Then arrange for the Veteran’s record to be forwarded to the May 2018 examiner (or to another appropriate clinician if that provider is unavailable) for review and an addendum opinion regarding the etiology of his headaches. (An examination is not necessary, unless the consulting provider so finds.) The addendum medical advisory opinion should include responses to the following: (a) Identify the likely etiology for the Veteran’s headache disorder. Is it at least as likely as not (a 50% or greater probability) that it is directly related to (was incurred during) his active duty service? (b) If the headache disorder was not incurred in service, identity the etiology that is considered to be more likely, based on the evidence of record. All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.