Citation Nr: 21002684 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-07 425 DATE: January 14, 2021 ORDER Entitlement to service connection for traumatic head injury (TBI) is denied. Entitlement to service connection for memory loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had residuals of a TBI at any time during or approximate to the pendency of the claim. 2. The Veteran’s memory loss is contemplated in his service-connected post-traumatic stress disorder (PTSD) with persistent depressive disorder as secondary to the service-connected disability of Parkinson’s disease with sleep disturbance condition. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI due to service or service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to a separate grant of service connection for memory loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2014 and August 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran presented testimonial evidence at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript from that hearing is of record. The Board remanded these issues for further development in October 2018. Most recently, in July 2020, the Board remanded this matter for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for traumatic head injury 2. Entitlement to service connection for memory loss The Veteran contends that his traumatic head injury (TBI) and memory loss are due to service. Alternatively, the Veteran asserts that he has a TBI and it was caused or aggravated by either is service-connected Parkinson disease or vestibular disorder. Direct Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has considered the Veteran’s assertion that he has a TBI condition and it is etiologically related to his active service. Although the Veteran is competent to report his current symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not considered competent to render an opinion as to the likely etiology of his condition, as doing so requires specialized medical knowledge and expertise he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Board instead turns to the competent medical evidence of record to determine whether the Veteran has a current diagnosis. The Veteran’s service treatment records are absent for complaint, treatment, or diagnosis of a TBI during his active service, or shortly after service. The July 2016, February 2020, and September 2020 VA examiners evaluated the Veteran and determined that, while he experienced subjective symptoms of mild short-term memory loss, as he has trouble remembering recent events, he did not have a diagnosis of a TBI. Further, despite treatment throughout the appeal period, the Veteran’s treatment records do not contain a diagnosis of TBI. In July 2017, the Veteran testified in a Board hearing that his memory loss is attributed to his lack of sleep and vertigo. He testified that he often loses his concentration. The Veteran attributes his memory loss to his traumatic head injury. “I have a lot of pain that's unexplainable. It just covers my head from front to back of my neck and my, I think I must have what's known as muscle spasms.” The Veteran testified that he is not stable on his feet and cannot walk very well. In February 2020, the Veteran underwent a cognitive screening by a licensed psychologist that indicated that the Veteran has mild neurocognitive impairment. However, she said it would require a neurologist to justify or confirm the diagnosis. The examiner went through the assessment and noted that there was (1) objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; (2) Moderately severely impaired judgment; (3) occasionally disoriented; (4) motor activity mildly decreased; (5) three or more symptoms that moderately interferer with work, instrumental activities of daily living, or work family or other close relationships (due to intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to light, marked fatigability, visual and auditory hallucinations and constant insomnia); (6) One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them (irritability, lack of motivation, verbal aggression, moodiness.) The February 2020 licensed psychologist opined that the Veteran’s memory loss is less likely than not (less than 50 percent probability) proximately due or the result of the Veteran’s TBI condition. As to the rationale, the psychologist indicated that the Veteran’s memory loss could not be determined without resorting to speculation because the Veteran had some memory problems prior to any traumatic head injury and even “if that were not the case it would be hard to determine whether the memory problems are due to only the traumatic head injury or the natural progress of the Parkinson’s or a combination of the two.” The psychologist defers to a neurologist to provide a formal diagnosis. The psychologist also states, “it is likely that this psychologist cannot opine on this until reviewing the evaluation for TBI residuals… and will be dependent on the establishment of TBI. The Board affords this medical opinion no probative weight because the psychologist is resorting to speculation, and does not have all of the necessary facts, such as the Veteran’s absence of a diagnosis of a TBI. Later in February 2020, the Veteran was seen by a neurologist. The neurologist assessed the Veteran’s impairments and determined that there were (1) no complaints of impairment of memory, attention, concentration, or executive functions; (2) judgement was normal; (3) social interaction is routinely appropriate; (4) always oriented to person, time, place, and situation; (5) motor activity normal; (6) visual spatial orientation was normal; (7) no subjective symptoms; (8) no neurobehavioral effects; (9) able to communicate by spoken and written language; and (10) consciousness normal. The neurologist states that the Veteran’s claimed condition of a TBI has no diagnosis “because there are no findings, signs, or symptoms to support a diagnosis.” In September 2020, the Veteran underwent an examination for an evaluation of residuals of a TBI. The Veteran and his spouse were interviewed and were unable to provide any history of a traumatic event to the head during service or shortly after separating from service. The September 2020 examiner stated that there was no diagnosis of a TBI but mentioned that the Veteran fell in 2017, but there was no evidence of a TBI after that fall. In addition, there examiner stated that there is no evidence in the record that any of the Veteran’s falls would result in persistent memory loss. The examiner opined that the Veteran’s physical impairments were for the most part related to his Parkinson’s disease. The examiner assessed the Veteran for any impairments and determined that there were (1) no complaints of impairment of memory, attention, concentration, or executive functions; (2) judgement was normal; (3) social interaction is routinely appropriate; (4) always oriented to person, time, place, and situation; (5) motor activity normal; (6) visual spatial orientation was normal; (7) no subjective symptoms; (8) no neurobehavioral effects; (9) able to communicate by spoken and written language; and (10) consciousness normal. Finally, the examiner remarked that the Veteran has, A complaint of mild short-term memory loss, as he has trouble remembering recent events. He has mildly impaired judgment as his decisions are deferred to his wife. He has headaches daily and takes Ibuprofen when his headache pain is too much. There is no TBI. The physical impairment is for the most part related to Parkinson's Disease. The Board considered the Veteran’s lay statements, VA examinations, and treatment records. There is no evidence in the record that demonstrates that the Veteran has, or had, a diagnosis of a TBI condition at any time during this appeal period, thus service connection for a TBI condition on a direct basis is not warranted. Secondary Service Connection In the alternative, the Veteran contends that he has a TBI condition that was caused by or aggravated by his service-connected Parkinson disease or vestibular disorder. 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. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or is aggravated beyond its natural progress by the Veteran’s service-connected Parkinson disease or vestibular disorder. As stated above, the July 2016, February 2020, and September 2020 VA examiners evaluated the Veteran and determined that, while he experienced subjective symptoms of mild short-term memory loss, as he has trouble remembering recent events, he did not have a diagnosis of a TBI. Further, despite treatment throughout the appeal period, the Veteran’s treatment records do not contain a diagnosis of TBI. In the September 2020 VA examination, the examiner opined that the Veteran did not have a diagnosis of a TBI, and the Veteran’s service-connected Parkinson disease or vestibular disorder did not cause or aggravate the Veteran’s TBI because there was no diagnoses of a TBI. The examiner stated that while there is documentation of a vestibular disorder “the record did not establish a relation of vestibular disorder direction causing TBI.” The examiner also stated that the Veteran has a problem with “intermittent vertigo, balance problem, tremors, and muscle rigidity with freezing; and back pain impacting on balance with proclivity to falls.” Here, while the Veteran is service connected for Parkinson’s disease and a vestibular disorder, the Veteran does not have a diagnosis of a TBI. Thus, service-connection for TBI on a secondary basis is not warranted. Memory loss The Veteran contends that his memory loss is due to service. The Board finds that the Veteran’s memory loss was already contemplated by his service-connected disabilities. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In the August 2020 rating decision, the AOJ explicitly stated that the Veteran’s service connection for post-traumatic stress disorder (PTSD) with persistent depressive disorder as secondary to the service-connected disability of Parkinson’s disease with sleep disturbance, included memory loss. The AOJ assigned the Veteran with a 50 percent rating based on forgetting names, mild memory loss, forgetting to complete tasks, and forgetting directions. The 100 percent rating, that the Veteran was awarded contemplates the Veteran forgetting the names of close relatives, own occupation, or own name. Thus, service connection is not warranted for memory loss alone, because it was already contemplated in the Veteran’s service-connected disability, and it would constitute pyramiding to award memory loss separately. Finally, neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). (Continued on the next page)   Because the preponderance of the evidence is against the claims, for entitlement to service connection for a TBI based on either a direct or secondary basis, and the Veteran’s memory loss is already contemplated in his PTSD disability, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.