Citation Nr: 21002201 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-51 831 DATE: January 13, 2021 ORDER Service connection for residuals of a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, to include as secondary to service-connected tinnitus, is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, or at the housebound rate, is remanded. FINDING OF FACT The Veteran is not shown to suffer from any current residuals of an in-service TBI. CONCLUSION OF LAW The criteria for an award of service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1961 to August 1963. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In April 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in July 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. The Board notes that the AOJ furnished the Veteran a supplemental statement of the case relative to the issues on appeal in June 2020. Although additional evidence has been added to the record since that time, none of it bears meaningfully on the outcome of the issue that is currently being decided. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). Entitlement to service connection for residuals of a TBI. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible 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 in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has residuals of a TBI that was incurred following a head injury sustained in service. During the April 2019 Board hearing, he testified that while stationed on a 5-inch gun mount on the USS Perry, he slipped and fell backwards onto the steel deck of the ship. He stated that due to his fall, he was unconscious for about an hour and suffered a concussion. He testified that he was treated with aspirin and received no further medical treatment. He claimed that he had had blurry vision, loss of balance, headaches, and hearing impairment since the fall. The Veteran’s service treatment records do not reflect any treatment for, or complaints of, a head injury. Post-service treatment records note complaints of dizziness, use of a cane, and loss of balance. See, e.g., January 2012 and March 2014 VA treatment records. VA treatment records also note numerous complaints of headaches. See, e.g., May 2016 VA treatment record. Moreover, the Veteran has asserted that he has experienced loss of vision since service, pre-dating the diagnosis of diabetes. See April 2019 Hearing Transcript. In December 2019, the Veteran was administered a neuropsychological assessment. Results of testing administered as a part of the VA examination indicated variable memory, mildly impaired basic attention, and mildly to moderately impaired semantic verbal fluency. See December 2019 VA examination. The profile obtained reflected overall impairment in neuropsychological functioning and supported a DSM-5 diagnosis of Unspecified Neurocognitive Disorder. Id. In December 2019, the Veteran was afforded a VA examination for residuals of TBI, which was performed by a psychiatrist. The examiner opined that it was less than 50 percent likely that the Veteran had current residuals of an in-service TBI. During the examination, the Veteran reported sustaining a head injury in service when he fell backward onto a steel deck and was unconscious for an unknown period of time. He also reported several post-military concussions, the most serious occurring in December 2016 when he fell out of bed. He recalled being dazed and having swollen eyes. The examiner opined that, while the Veteran may have sustained a head injury in 1961 while on active duty, it was less likely than not that he would have current residuals or symptoms from a single, remote injury. Rather, the examiner opined that the Veteran’s December 2016 concussion was at least as likely as not the cause of any current symptoms or residuals, and that his symptoms were better accounted for by more recent falls and concussions. The examiner noted that the current consensus is that most single TBIs resolve within 3-6 months without sequelae. He remarked that he would not expect the Veteran to have residual deficits from the head injury from 1961, this far remote, as a single TBI is not a progressive or degenerative disease. Given the natural history of such injuries, the Veteran should have recovered from any such symptoms within several weeks to months following his single injury. Moreover, the examiner noted that there were no objective service treatment records which documented concussion/loss of consciousness or sequalae. Based on the evidence of record, the Board concludes that during the period on appeal, the Veteran has not had any residuals of an in-service TBI. The December 2019 VA examiner specifically found it unlikely that any related residuals were present. The examiner’s opinion is highly probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the Veteran’s lay testimony to the effect that an in-service incident led to residuals of a TBI. However, residuals of a TBI is a medically complex diagnosis that the Veteran is not shown to be competent to diagnose. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In any event, his lay statements on the matter are outweighed by the competent medical evidence. The preponderance of the evidence is against the claim. Service connection for residuals of a TBI must therefore be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, to include as secondary to service-connected tinnitus, is remanded. The May 2020 Board remand asked the AOJ to obtain a VA medical opinion as to whether it was at least as likely as not that any diagnosed psychiatric disability had been caused or aggravated beyond its natural progression by service-connected tinnitus, to include as a result of the Veteran’s reported issues with sleep and irritability related to tinnitus. The AOJ obtained a VA examination and medical opinion in December 2019. In response to the Board’s remand instructions, the examiner noted that the peer-reviewed medical literature described many risk factors for the development of mood disorders/depression, including significant trauma, stressful life events, parental loss during childhood, substance abuse, history of noncompliance with treatment, history of divorce or marital problems, and no social supports. The examiner noted that the Veteran’s treatment reports indicated that his vision loss and resulting limitations on his activities had historically been the driving force behind his depression. The Board finds the December 2019 opinion is insufficient to fairly adjudicate the Veteran’s claim for service connection. The Board notes that secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, the December 2019 examiner did not substantively address the issue of aggravation, to include as a result of the Veteran’s reported issues with sleep and irritability related to tinnitus. As such, the examination is incomplete and further development is necessary. 2. Entitlement to SMC based on the need for regular aid and attendance, or at the housebound rate, is remanded. The claim of entitlement to SMC based on the need for regular aid and attendance, or at the housebound rate, is intertwined with the issue that is being remanded. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another issue). Therefore, the SMC issue will be remanded as well. These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, arrange to have the Veteran scheduled for a VA mental disorders examination. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify all psychiatric disorders that have been present since the time that the Veteran filed his claim for service connection. For each diagnosed psychiatric disorder, the examiner should then offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that such disorder has been (a) caused or (b) aggravated beyond its natural progression by service-connected tinnitus, to include as a result of the Veteran’s reported issues with sleep and irritability related to tinnitus. If it is the examiner’s opinion that it is unlikely that a disorder has been caused or aggravated by tinnitus, the examiner should offer a further opinion as to whether it is at least as likely as not that any diagnosed psychiatric disorder had its onset in, or is otherwise attributable to, the Veteran’s period of active service. A complete medical rationale for all opinions expressed must be provided. In this regard, the examiner should be careful to address both causation and aggravation, specifically and separately. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.