Citation Nr: 21004220 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-01 096 DATE: January 26, 2021 THE ISSUES 1. Entitlement to service connection for scars of the head. 2. Entitlement to service connection for residuals of head trauma, to include a headache disability. 3. Entitlement to service connection for an acquired psychiatric disability. REMANDED Entitlement to service connection for scars of the head is remanded. Entitlement to service connection for residuals of head trauma, to include a headache disability, is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to September 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. These matters were last before the Board in November 2018, at which time they were remanded for further development. Although the Board regrets the additional delay, we find there has not been substantial compliance with the remand directives, and an additional remand is necessary to determine the nature and etiology of the Veteran’s claimed disabilities. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for scars of the head is remanded. 2. Entitlement to service connection for residuals of head trauma, to include a headache disability, is remanded. The Veteran contends that he currently has a traumatic brain injury, which he sustained in service after falling off a mountain while attempting a climb. The Board acknowledges that the Veteran's service treatment records are mostly unavailable for review. An October 2011 memorandum reflects a formal finding of unavailability of service treatment records (STRs), after outlining all efforts made to obtain them. While VA subsequently obtained some STRs and associated such with the claims file in February 2019, they do not appear to be complete. Thus, there is no documentation of the Veteran's reported in-service injury to the head. In fact, the Board notes that VA has conducted additional development in an effort to verify the Veteran's statement regarding an in-service injury involving falling down a mountain. The Joint Service Record Research Center (JSRRC) made a formal finding that the Veteran's statement regarding his in-service injury is not corroborated. The basis for this finding was that review of the Veteran's personnel file does not document the incident, nor do the admittedly incomplete service treatment records. Review of the Veteran's post-service medical records shows that in August 1991, radiology report of the Veteran's skull revealed no evidence of fracture or other bone abnormality, unremarkable paranasal sinuses, and normal facial bones. VA treatment records reflect that the Veteran first complained of headaches in May 2011. In June 2011, the Veteran was administered a CT scan of the head to assess the etiology of his chronic headaches. No acute pathology was found, though some fluid was shown in the frontal sinuses. The Veteran was prescribed allergy medication. In an August 2011 VA treatment note, the Veteran reported feeling his headaches are stress-related. In April 2012, the Veteran presented to the VA emergency department with headache complaints. The Veteran reported his headaches have been longstanding since a concussive injury in service. A neurological examination was shown to be intact. In May 2012, the Veteran was noted to take Citalopram, an SSRI, for treatment of his headaches. In May 2014, the Veteran was afforded a VA examination to assess of his claimed psychiatric disability. At that time, the Veteran was diagnosed with major depressive disorder. The examiner acknowledged the Veteran's report of his fall in service. The Veteran reported having lost his footing and falling about 30 feet, incurring a head injury, and waking up in a Korean hospital after being unconscious. Pertinently, the examiner found that the Veteran does not have a diagnosis of traumatic brain injury. In July 2016, the Veteran had a hearing before a decision review officer. The Veteran testified that in August 1976, he and two military buddies were climbing a mountain in Korea to look down at a village, when he lost his footing and fell, landed on a rock, was knocked unconscious, and woke up in a hospital. The Veteran testified remembering waking up with his head bandaged up, his shoulder in a sling, being prescribed some medications, and being placed back in duty two weeks after the incident. The Veteran testified his behavior changed as a result. He could not recall any incident report being written by military authorities, explaining that he was unconscious and would not have known. The Board notes that while there is no evidence of a traumatic brain injury diagnosis, the Veteran does have a current diagnosis of chronic headaches, which he states he has had since the reported in-service fall ice. Further, the Veteran states that he currently has a scar on his head as a result of his in-service fall, and is claiming service connection for said scar. The Veteran, as a lay person, is not competent to testify as to the etiology of his claimed disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that "lay persons are not competent to opine on medical etiology or render medical opinions."). However, the Veteran is competent to testify as to symptoms which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is thus competent to testify as to a fall in service, and to such symptoms as chronic headaches since service and a visible scar on his head. Given the Veteran's competent testimony as to his symptoms and the unavailability of service treatment records, the Board found in its November 2018 decision that VA had a duty to provide the Veteran with an examination to evaluate the nature and etiology of his claimed conditions. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded a VA contracted examination for any possible residuals of head trauma suffered in service in November 2019. The examiner considered the Veteran’s account of falling from a mountain while in service. The Veteran reported that he has experienced headaches, memory impairments, and mood instability since that incident. However, the examiner did not record any current symptoms attributable to a TBI upon examination. The examiner did not address the Veteran’s diagnosed headache disability, as explicitly required by the November 2018 Board remand directives. The examiner opined that the Veteran’s current claimed symptoms were less likely than not related to service, providing the following rationale: “[t]he veteran likely did suffer TBI during the incident noted, however I am unable to confirm that current claimed residuals are due to the TBI.” The Veteran was also afforded a VA contracted examination for his scar associated with his claimed head injury in October 2019. The examiner recorded a diagnosis of a “healed linear scar on scalp from fall in active duty” and noted an onset of 1976. However, the examiner opined that the Veteran’s current head scar was less likely than not related to service and provided the following rationale: “[d]uring service, scar of the head was acute only. There is no evidence of chronicity of care. A nexus has not been established.” When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board finds the above opinions to internally contradictory. Furthermore, the above cited medical opinions are unsupported by adequate medical rationale and therefore conclusory in nature. Finally, the November 2019 medical opinion does not comply with the November 2018 Board remand directives. See Stegall, 11 Vet. App. 268 (1998). For the reasons listed above the Board finds both medical opinions inadequate. Therefore, an addendum medical opinion is warranted to determine the etiology of the Veteran's claimed residuals of head trauma and the associated scar. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). 3. Entitlement to service connection for an acquired psychiatric disability is remanded. In May 2014, the Veteran was afforded a VA examination to assess the nature and etiology of his claimed psychiatric disability. The Veteran was diagnosed with major depressive disorder, polysubstance abuse disorder in remission, and unaddressed personality traits. The Board further notes that the examiner acknowledged the Veteran’s report of his fall in service as a valid stressor. However, the Board notes that this VA examination does not contain an etiological opinion with a supporting rationale. Furthermore, the examiner did not address an in-service stressor which was in fact verified by the JSRRC. Specifically, in addition to his fall, the Veteran also claimed exposure to a traumatic event involving two of his fellow soldiers being killed in an axe attack while he was stationed at Camp Casey in Korea. See January 2014 statement in support of claim. An April 2014 JSRRC memorandum concluded that it is plausible the Veteran knew the soldier that was killed as described in his statement and pertinently found that the Veteran’s stressor is confirmed. As such, the Board in its November 2018 found the Veteran’s May 2014 VA psychiatric examination to be inadequate and remanded for a new examination with opinion to determine the nature and etiology of any acquired psychiatric disability. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). The Veteran was afforded such a VA contracted examination in October 2019. After an in-person examination and review of the claims file, the examiner noted a May 2014 record of diagnosis of major depressive disorder, but found that the Veterans current symptoms were best classified as “unspecified anxiety disorder.” The examiner acknowledged the Veteran’s verified stressor of learning of an axe attack at Camp Casey in Korea, and his reported fall in service, however, found that his current psychiatric disability was less likely than not caused by these events in service. In support of this opinion, the examiner offered the following rationale: “[T]here is no evidence that it is related to the Veteran’s military service. There is no report of mental health issues during the Veteran’s service time and no consistent report of ongoing mental health problems since military service. Therefore, there is no nexus between military service and current symptoms. Current symptoms appear to be more influenced by Vet witnessing violent crime after getting out the military, causing him to be more anxious and hypervigilant currently.” Upon review of the evidence of record, the Board finds that the October 2019 VA contracted opinion is inadequate as it relied on a factually inaccurate history of the Veteran's mental health. Specifically, the Board notes that while the Veteran denied any psychiatric disabilities on his entrance examination, he indicated that he suffered from “depression or excessive worry" during his exit examination. As the VA examiner relied on a factually inaccurate medical history in rendering the October 2019 medical opinion, the Board finds that this medical opinion is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). Therefore, the Board finds that an additional remand is necessary to obtain an addendum medical opinion which address the Veteran’s reported psychiatric symptoms documented in his May 1978 exit examination. The matters are REMANDED for the following action: 1. Obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. 2. After the above development is completed, return the claims file to the November 2019 examiner, or a suitable substitute, for the purpose of obtaining an addendum opinion as to the etiology of any claimed residuals of head trauma, to include a diagnosed headache disability. Another examination is not required, but if the examiner determines that a new examination is necessary to provide such a medical opinion, one should be provided. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence and any tests that are deemed necessary the examiner must diagnose all residuals of head trauma found to be present. For any diagnosed residuals of head trauma, to include the Veteran’s currently diagnosed headache disability, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability began during or is causally related to service, to include as due to the claimed head trauma sustained in 1976 while on a mountain climb in Korea. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. The examiner must specifically discuss the Veteran's claimed in-service fall, and his reported headaches since that time, in the context of any negative opinion. 3. After completion of the first directive, return the claims file to the November 2019 examiner, or a suitable substitute, for the purpose of obtaining an addendum opinion as to the etiology of any claimed scars. Another examination is not required, but if the examiner determines that a new examination is necessary to provide such a medical opinion, one should be provided. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, a history obtained from the Veteran, and any tests that are deemed necessary. The examiner must provide an opinion as to whether it is at least as likely as not that any scar on his head was incurred in or otherwise related to his period of active duty service, to include as due to the claimed head trauma sustained in 1976 while on a mountain climb in Korea. A full rationale for any expressed medical opinion must be provided. The examiner is asked to clarify if the Veteran currently has a scar that is attributable to his claimed head injury in service. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. 4. After completion of the first objective, return the claims file to the October 2019 psychiatric examiner, or a suitable substitute for the purposes of preparing an addendum opinion. Another examination is not required, but if the examiner determines that a new examination is necessary to provide such a medical opinion, one should be provided. The claims file must be made available to the examiner for review and a note that it was reviewed must be included in the report. Following a review of the relevant evidence, the examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disability began during or is causally related to service, to include as due to a 1976 fall from a mountain. The examiner must specifically address and consider the May 2014 diagnosis of depressive disorder as well as the verified in-service stressor of record exposure to a traumatic event in August 1976 where the Veteran's military buddies were killed in Korea. Additionally, the examiner must address the Veteran’s reported psychiatric symptoms during his May 1978 exit examination. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. (Continued in next page.) 5. Thereafter, readjudicate the remaining issues on appeal. If any of the benefits sought on appeal are not granted, the Veteran and representative should be provided with a supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.