Citation Nr: 21002934 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-37 257 DATE: January 19, 2021 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s residuals of TBI are not secondary to service-connected PTSD, and are not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for residuals of TBI due to service or service-connected PTSD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1991 to May 1994. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record Entitlement to service connection for residuals of a TBI, to include as secondary to service-connected PTSD The Veteran contends his residuals of TBI are secondary to his service-connected PTSD. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran’s residuals of TBI are proximately due to or the result of, or was aggravated by his service-connected PTSD. The Board concludes that, while the Veteran has a current disability, residuals of a TBI sustained in a post-service March 1995 motor vehicle accident, the preponderance of the evidence is against finding that the Veteran’s residuals of TBI are proximately due to or the result of, or aggravated by his service-connected PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The June 2016 VA examiner opined that the Veteran’s TBI is less likely than not proximately due to or a result of his service-connected PTSD. The rationale was that the Veteran was in a motor vehicle accident as a passenger and not wearing his seatbelt. The examiner noted that the Veteran reported in his interview that “nobody wears seatbelts in New Hampshire,” and after 6 months of living there it was normal to him not to. The examiner found that it was his decision not to buckle his seatbelt and that decision was not related to his PTSD or depression. The examiner also opined that the TBI was not the result of an attempt to adrenalize himself because he was not the driver of the car and he had not been driving recklessly. The examiner noted that it was simply an accident and the Veteran was a passive passenger. Additionally, while the examiner used the wrong standard of aggravation, beyond its natural course, the examiner’s rationale identifies that there was no evidence to suggest that the Veteran’s service connected PTSD and depression impacted his recover from the TBI and the residuals of TBI were independent of his service-connected psychiatric conditions Accordingly, the examination report sufficiently informs the Board of the medical expert’s judgement on the medical questions of whether the Veteran’s residuals of TBI are proximately due to or aggravated by his service-connected PTSD, and the essential rationale for her opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The Veteran believes his TBI was proximately due to his PTSD because his PTSD caused an increase in violent outbursts and fighting after his separation from service. However, the record reflects that the Veteran’s TBI was due to a motor vehicle accident, not a fight. The Veteran is not competent to provide a nexus opinion regarding this issue because it is a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the June 2016 VA examiner. Service connection for residuals of TBI is denied. REASONS FOR REMAND Entitlement to a rating in excess of 70 percent for PTSD is remanded. At the December 2020 hearing, the Veteran testified that symptoms of his service-connected PTSD, specifically sleep disturbances, had increased in severity since the Veteran was last examined by VA in June 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran also testified that he was receiving VA psychiatric treatment for his sleep disturbances. However, the record only contains VA treatment records through April 2016. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Entitlement to a TDIU is remanded. Because a decision on the remanded issue could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim of entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any psychiatric complaints since July 2011 not already associated with the record.  After securing the necessary release, take all appropriate action to obtain these records, including records of VA treatment records since April 2016   2. After the completion of the above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected PTSD and depression. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner is requested to delineate all symptomatology associated with the Veteran’s TBI. The examiner must attempt to differentiate symptoms between the service-connected PTSD and depression and the TBI. If the examiner cannot differentiate the symptoms, the examiner must specifically indicate why that is. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD and depression alone. 3.  After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU.  M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.