Citation Nr: 21002068 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-03 566 DATE: January 12, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is granted. Entitlement to service connection for headaches is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran suffered a TBI in service. 2. The evidence is at least in equipoise as to whether the Veteran’s headaches are related to his active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1110, 5103(a); 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 5103(a); 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REMANDED Entitlement to a rating in excess of 10 percent prior to October 12, 2020, and in excess of 20 percent thereafter, for service-connected lumbar degenerative disc disease (back condition) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2003 to October 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions, dated September 2011 and March 2014, issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in June 2018 and March 2020. In April 2018, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the electronic claims file. See April 2018 Board Hearing Transcript. Entitlement to service connection for a TBI and headaches is granted. Establishing service connection on a “direct” basis generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all 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). The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Factual Background. The Veteran’s service treatment records (STRs) are silent with respect to a diagnosis or complaints of a TBI. However, the STRs demonstrate that he suffered an injury to his back in September 2004 when he landed on his back following a parachute malfunction during a night airborne operation. See STR-Medical. Records from the Defense & Veterans Brain Injury Center indicate that, from September 2004 through December 2004, the Veteran participated in an investigative study for paratroopers stationed at Fort Bragg who had incurred a recent head injury. See Defense & Veterans Brain Injury Center records. The Veteran’s VA treatment records indicate that the Veteran has a current diagnosis of TBI and has consistently sought treatment for headaches that he attributed to his TBI. See Columbus VA Medical Center (VAMC) records, received December 2015 in CAPRI; West Los Angeles VAMC records, received December 2015 in CAPRI. In November 2007, the Veteran reported experiencing a concussion following an improvised explosive device (IED) explosion in 2004. See November 2007 VA Initial Posttraumatic Stress Disorder (PTSD) Exam. In February 2014, the Veteran was afforded a VA examination in which he was diagnosed with a TBI and migraine headaches. The examiner opined that the Veteran’s conditions were at least as likely as not caused by his military service. In support of this opinion, the examiner noted that the Veteran was exposed to significant IED blasts, followed by a head injury, that appeared to culminate in residuals that are typical of a TBI. See February 2014 VA Initial Evaluation of Residuals of TBI Disability Benefits Questionnaire (DBQ); February 2014 VA Headaches DBQ. In August 2020, a VA opinion was obtained, without examination, in which the psychiatrist opined that the Veteran’s claimed TBI and residuals thereof were less likely than not incurred in or related by his military service. In support of this opinion, the psychiatrist noted that the Veteran’s STRs were silent for a TBI or residuals of such and that the first contemporaneously documented TBI occurred after service in 2006. See August 2020 Medical Opinion DBQ. Analysis. The Veteran is seeking service connection for a TBI and residuals thereof. Importantly, the first prong of service connection has been satisfied, as the Veteran has current diagnoses of TBI and headaches. The Veteran’s post-service medical records reflect that, during the period on appeal, he has been diagnosed with a TBI and post-concussive/tension headaches. See Columbus VAMC records; February 2014 VA Initial Evaluation of Residuals of TBI DBQ; February 2014 Headaches DBQ. Further, the record indicates that the Veteran was injured in a parachute malfunction in September 2004, and shortly thereafter participated in an investigative study for paratroopers with recent head injuries. See STR-Medical; Defense & Veterans Brain Injury Center records. With respect to the third element of service connection, a medical nexus, there are varying opinions. Weighing in favor of a medical nexus is a February 2014 VA examination report, in which the examiner opined that the Veteran’s TBI and migraine headaches were at least as likely as not caused by his military service. In support of this opinion, the examiner noted that the Veteran was exposed to significant IED blasts, followed by a head injury, that appeared to culminate in residuals that are typical of a TBI. See February 2014 VA Initial Evaluation of Residuals of TBI Disability Benefits Questionnaire (DBQ); February 2014 VA Headaches DBQ. Further, the Veteran has reported experiencing headaches since his in-service head injury, which he attributes to such injury. See Columbus VAMC records; West Los Angeles VAMC records. While the Veteran is not competent to assign symptomatology to a particular diagnosis, he is competent to report observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). On the other hand, in an August 2020 VA medical opinion, a psychiatrist opined that the Veteran’s claimed TBI and residuals thereof were less likely than not incurred in or related by his military service. In support of this opinion, the psychiatrist noted that the Veteran’s STRs were silent for a TBI or residuals of such, and that the first contemporaneously documented TBI occurred after service in 2006. See August 2020 Medical Opinion DBQ. However, as discussed above, the record indicates that the Veteran was injured in a parachute malfunction in September 2004, and shortly thereafter participated in an investigative study for paratroopers with recent head injuries. See STR-Medical; Defense & Veterans Brain Injury Center records. As such, the August 2020 examiner’s opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Based on the above, the Board finds the evidence of record overall supports the finding that the evidence of record overall supports the finding that the Veteran’s headaches are related to his active duty service, at least to an evidentiary position of equipoise, and that it was caused by a head injury in service, considered a TBI. Accordingly, the Board resolves all reasonable doubt in the Veteran’s favor and finds service connection to be warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). REASONS FOR REMAND As an initial matter, the Board notes that, during the pendency of these matters, the Veteran’s back condition was assigned a 20 percent rating, effective October 12, 2020, in an October 2020 rating decision. As this increase does not represent a total grant of benefits sought on appeal, the claim for a higher initial rating remains before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). 1. Entitlement to a rating in excess of 10 percent prior to October 12, 2020, and in excess of 20 percent thereafter, for service-connected back condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of two prior Board remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, a remand is necessary as the evidence indicates that there may be relevant medical records that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran has received treatment at the Dayton VAMC, as well as treatment from a private chiropractor. See Columbus VAMC records. However, no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. Additionally, the record indicates that the Veteran has received treatment at River Rock Rehabilitation, Riverside Hospital, The Pain Clinic, Marion General Hospital, and Drs Hospital Nelsonville Clinic, and from doctors N. Eboh, M. Denton, C. Arora, and W. Rosenberg. However, no records relating to such treatment have been associated with the claims file since November 2010. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (1992); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Second, a remand is necessary to provide the Veteran with an adequate VA examination. In October 2020, the Veteran was afforded a VA examination regarding the severity of his service-connected back condition. See October 2020 VA Back Conditions Disability Benefits Questionnaire (DBQ). However, as discussed above, relevant medical records have not been associated with the claims file. As such, the October 2020 examination may not have considered the Veteran’s prior medical history and, therefore, a remand is necessary to provide the Veteran with an adequate VA examination regarding the severity of his service-connected back condition. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 202, 312. Lastly, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), and where this is an increased rating claim, a remand is necessary to allow the AOJ to obtain a RETROSPECTIVE OPINION, regarding the severity of the Veteran’s service-connected back condition. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Here, the September 2010, March 2011, and October 2015 examinations did not specify whether active and passive motion were tested or whether the results provided were weight-bearing or non-weight-bearing. See September 2010 VA Spine Examination; March 2011 VA General Medical Examination; October 2015 VA Back Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional impact. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran’s lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the September 2010 and March 2011 examinations did not address the functional impacts of repetitive use over time or during flare-ups; no rationale was provided. See September 2010 VA Spine Examination; March 2011 VA General Medical Examination. Additionally, the October 2015 examination did not address the functional impacts of repetitive use over time or during flare-ups, with the examiner stating that they could not do so without speculation as there was no objective evidence. See October 2015 VA Back Conditions DBQ. Further, the June 2019 examination noted that the Veteran experiences functional loss during flare-ups but did not opine as to the resulting range of motion (ROM). See June 2019 VA Back Conditions DBQ. As the September 2010, March 2011, October 2015, and June 2019 examination reports did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of his service-connected back condition. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of two prior Board remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. First, given that the Veteran has asserted that he is unable to work due to his service-connected disabilities, and where he is now service connected for TBI and migraine headaches, remand is warranted as no development concerning the Veteran’s employment history has been conducted since November 2010. See November 2010 VA Form 21-4192; see November 2010 VA Form 21-8940; June 2016 VA Form 9; April 2018 Board Hearing Transcript. Furthermore, the Veteran’s VA treatment records indicate that he has reported employment at various points throughout the period on appeal. See Columbus VAMC records. As such, a remand is warranted to allow the AOJ to further develop the Veteran’s claim of entitlement to a TDIU, to include requesting the Veteran’s tax returns from 2009. Second, as the matter of TDIU is inextricably intertwined with the claims remanded herein, a remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Third, as discussed above, a remand is necessary as the evidence indicates that there may be relevant medical records that are not associated with the electronic claims file. As such, a remand is necessary to allow the AOJ to obtain pertinent medical records. See 38 U.S.C. § 4103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Bell v. Derwinski, supra; Ivey v. Derwinski, supra. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran’s assistance as appropriate, conduct the following development: (a.) Obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including records relating to treatment at Dayton VAMC, River Rock Rehabilitation, Riverside Hospital, The Pain Clinic, Marion General Hospital, and Drs Hospital Nelsonville Clinic, from doctors N. Eboh, M. Denton, C. Arora, and W. Rosenberg, and from a private chiropractor. (b.) Provide the Veteran with a VA Form 21-8940 and obtain his employment history from 2009 through current. (c.) Obtain and associate with the Veteran’s electronic claims file the Veteran tax returns for the years 2009 through current. PURSUANT TO 38 C.F.R. § 3.159(E), ANY EFFORTS TO SECURE THESE RECORDS MUST BE DOCUMENTED IN THE ELECTRONIC CLAIMS FILE, AND THE VETERAN MUST BE INFORMED IF ANY OF THESE RECORDS ARE UNABLE TO BE SECURED. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. AFTER COMPLETING THE ABOVE, AND ANY ADDITIONAL DEVELOPMENT WARRANTED BY THE RECORD, schedule the Veteran for an examination with an appropriate clinician to determine the nature and severity of the Veteran’s service-connected back condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran’s detailed lay history, including the onset and development of symptomatology. IF THE VETERAN DESCRIBES FLARE-UPS, DOCUMENT THE FREQUENCY, SEVERITY, AND DURATION THEREOF. (b.) Test and document the ROM for the thoracolumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN’S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. (c.) Identify the nature and severity of all current manifestations of the Veteran’s service-connected back condition. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran’s medical records and lay history, and opine as to the severity of the Veteran’s service-connected lower back condition from July 2009 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to range of motion (ROM), if possible. If the examiner is unable to render such an opinion, the examiner should SPECIFICALLY STATE WHY AND PROVIDE A RATIONALE FOR THE DETERMINATION. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. 4. AFTER COMPLETING THE DEVELOPMENT ABOVE, AND ANY ADDITIONAL DEVELOPMENT WARRANTED BY THE RECORD, obtain an opinion from an appropriate clinician regarding the nature and severity of the Veteran’s service-connected conditions, from 2009 to current, as it pertains to his unemployability/employability. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is warranted, obtain the Veteran’s detailed lay history, obtain the Veteran’s detailed lay history, including his education, vocational, and employment history, as well as his complaints regarding the impact of all his service-connected disabilities on employment. (b.) Identify all limitations or functional impacts caused solely by the Veteran’s service-connected disabilities, individually and cumulatively, as it relates to the Veteran’s ability to work. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.