Citation Nr: 21064305 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 11-32 745 DATE: October 19, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is granted. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disability to include depressive disorder and PTSD. Entitlement to service connection for an acquired psychiatric disability to include depressive disorder and posttraumatic stress disorder is granted. REMANDED Entitlement to service connection for a left heel disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a right heel disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left elbow disability to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left wrist disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to service connection for an eye disability other than dry eyes is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, it is at least as likely as not that the Veteran has a TBI and that it is related to his active duty service. 2. In an unappealed January 2016 Board decision, the Board denied service connection for an acquired psychiatric disability to include depression and PTSD based on a finding that did not have a current disability of PTSD and that his depression was not related to service. 3. The evidence added to the record since the January 2016 Board decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for an acquired psychiatric disability, to include PTSD. 4. Affording the Veteran the benefit of the doubt, it is at least as likely as not that his acquired psychiatric disability, to include PTSD and depressive disorder, is related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The January 2016 Board decision that denied service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. 3. With respect to the Veteran's claim for service connection for an acquired psychiatric disability, new and material evidence has been received since the January 2016 denial. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for an acquired psychiatric disability to include depressive disorder and PTSD are met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1975 to October 1979. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for psychiatric disorders encompass claims for service connection for all psychiatric disabilities. As the evidence indicates that the TBI includes a psychiatric component. The Board has expanded the Veteran's TBI to once again encompass his claim for an acquired psychiatric disability, as is listed on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a traumatic brain injury. The Board notes that there is conflicting evidence on whether the Veteran has a traumatic brain injury. VA examination in June 2013, January 2015, November 2016, and January 2021 all found that the Veteran did not have current diagnosis of TBI. However, the examiner in February 2011 diagnosed the Veteran with a closed head injury and an October 2019 TBI Cognitive Screen found that it was too difficult to discern what could be TBI residuals and an acquired psychiatric disability. More definitively, in August 2020 TBI examination, the examiner found that the Veteran does have a TBI. This examiner reviewed all the previous VA examinations and conflicting evidence and found that the Veteran does in fact have a TBI. Considering the foregoing, the Board finds that the evidence is placed in equipoise, and as such, the provisions of 38 U.S.C. § 5107(b) control and the Veteran will be afforded the benefit of the doubt. Thus, the Board finds that the Veteran has a current disability of a TBI. Turning to an in-service incident, the Veteran reported that he was struck in the back of the head from a 70 lb to 80 lb hatch while operating an armored personnel vehicle. The Board notes that the Veteran's May 20, 1976, personnel record includes a notation that he was licensed to operate the Armored Personnel Carrier "M113A1" while in service, and thus the Veteran's statement concerning being stuck in the back of the head with the hatch is consistent with circumstances of his service as shown by his service records. See 38 C.F.R. § 3.303(a). Additionally, the Veteran has provided a November 2010 lay statement from his spouse who was married to the Veteran at the time of the incident. She detailed how the Veteran's cognitive ability declined after the incident. The Board finds that the Veteran's and his spouse's statements are credible and that they are competent to report an injury of this nature. Moreover, the type of injury the Veteran sustained is consistent with the circumstances of his service in that he was licensed to drive the type of vehicle in which he was injured. Considering the foregoing, the Board finds that the Veteran sustained a head injury in service. Turning to nexus, the Board finds that the August 2020 VA examiner's determination that the Veteran has a current diagnosis of TBI coupled with the February 2011 VA examination which diagnosed with the Veteran with a closed head injury and the Veteran's spouses statement concerning continued symptoms of cognitive issues in November 2010 all weigh in favor of a relationship between the Veteran's in-service injury and his current diagnosis of TBI. There is no evidence weighing against a relationship because the June 2013, January 2015, November 2016, and January 2021 VA examinations all found that the Veteran did not have a diagnosis of a TBI, thus no nexus was necessary. Further, the August 2020 VA examiner while noting that the Veteran had a head injury in service and that he had a current TBI did not explicitly relate one to the another. However, evaluating the evidence, the Board finds that there is no other documented incident in the Veteran's claims file following the incident in service which would account for his TBI diagnosis. Thus, the Board finds that the credible and competent lay statements of ongoing symptomatology, and the absence of any other head injury establish a link between the Veterans current TBI and his injury in service. In sum, the Veteran has met all the criteria for service connection for a TBI, and as such, service connection is granted. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disability to include depressive disorder and PTSD. The Veteran was denied service connection for acquired psychiatric disability to include depressive disorder and PTSD in a January 2016 Board decision because there was no evidence that the Veteran's disability was incurred in service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. The Veteran's private examination in January 2016, following the Board decision, that documented a diagnosis of PTSD and depressive disorder is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran's claim for service connection for an acquired psychiatric disability. Specifically, due to the prior lack of evidence showing of a current disability, this new evidence is material because it relates to an element that was previously not shown, an in-service incurrence. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for a psychiatric disability, to include depressive disorder and PTSD is reopened. 38 U.S.C. § 5108. 3. Entitlement to service connection for a psychiatric disability to include depressive disorder and PTSD. The Board finds that there is no dispute that the Veteran is currently diagnosed with an acquired psychiatric disability of depressive disorder and PTSD. The Veteran's depressive disorder was diagnosed in a May 2017 VA treatment record, A March 2016 private examination, A January 2015 VA examination, a July 2012 VA treatment note, a February 2011 VA Psychology Consult, a May 1998 VA treatment record, and importantly in a December 14, 1977 Appeal of Article 15 by the Veteran's Division Clinical Psychologist. This psychologist wrote, "[the Veteran's] initial diagnosis was depression primarily caused by military related problems." The Veteran has at times had his symptom also diagnosed as PTSD as noted in an October 2020 VA examination and a June 2014 private examination. Considering the foregoing, the Board finds that the Veteran has a current psychiatric disability. Turning to an in-service incurrence, the Board finds that the December 1977 diagnosis of depression in service is sufficient evidence to establish an in-service incurrence. Turning to nexus, the Board finds that the opinion from the December 1977 Division Commander is as relevant today as it was in December 1977 when he wrote "[the Veteran's] initial diagnosis was depression primarily caused by military related problems." Considering the foregoing, the Board finds that the Veteran's psychiatric disability, to include depressive disorder and PTSD is related to his active duty service and that service connection is therefore granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral heel disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a left elbow disability. 4. Entitlement to service connection for a left wrist disability. 5. Entitlement to service connection for a bilateral hip disability. 6. Entitlement to service connection for a bilateral knee disability. 7. Entitlement to service connection for a bilateral ankle disability. 8. Entitlement to service connection for a respiratory disability. 9. Entitlement to service connection for an eye disability other than dry eyes. Regrettably further evidentiary development is required before adjudication can proceed. Namely, there is evidence of outstanding Social Security Administration (SSA) records, outstanding VA treatment records that must be obtained. Further, VA examinations to address whether the Veteran's obesity could function as an intermediate step between his service-connected disabilities and his joint disabilities and respiratory disability are needed. Regarding the Social Security Administration records, The Veteran in his October 2020 TBI examination explained that he was receiving SSA benefits due to his disabilities. Upon review of the claims file, the Board finds that there has been not attempted to obtain these records and associate them with the claims file. VA's duty to assist the Veteran particularly applies to relevant evidence known to be in the possession of the Federal Government, such as Social Security records. See 38 C.F.R. § 3.159(c)(2). Therefore, because the records from the SSA may contain pertinent information to all the Veteran's claims, VA is obligated to obtain them. Regarding the outstanding VA treatment records, the record is clear that the Veteran received the vast majority of his care at the VA Medical Center in Lincoln, Nebraska, and the VA Nebraska-Western Iowa Health Care System as evidenced by his March 2018 Authorization for Release of Information wherein he wrote that he received care from these facilities from 1980 to the present. The record contains piecemeal records request from these facilities which has led to gaps in the record from July 2013 to September 2013 and January 2015 to November 2016, and, importantly, prior to August 2010, there does not appear to have been an attempt to make a comprehensive request for VA treatment records. Instead, there are sporadic older requests which at times were limited to specific claims the Veteran was contending at the time (e.g. a March 1984 VA request to furnish all mental health notes from October 1979). Importantly, the Veteran separated from service in October 1979 thus any records from 1980, within a year of his separation, would be of particular significance. Before adjudication can proceed, the Board finds that VA should attempt to obtain these records and associate them with the claims file. See 38 C.F.R. § 3.159(c)(2). Of note, it appears that the Lincoln, Nebraska VA Medical Center has been or is in the process of being shuttered; if it is closed the AOJ should attempt to obtain these records from whatever location they are transferred to by VA. See "Lincoln VA Clinic Moving from Former Hospital to New Building" (last accessed October 18, 2021), https://journalstar.com/lifestyles/health-med-fit/lincoln-va-clinic-moving-from-former-hospital-to-new-building/article_ed3c0f80-e6ef-551a-9122-223b396b15b9.html. Before adjudication can proceed with the Veteran's orthopedic claims, the Board finds that a VA examination should be conducted to determine whether the Veteran's obesity is etiologically related to his service connected disabilities. The Board finds that the most recent VA examination in July 2020 alongside VA examination in June 2011 and VA treatment records from June 2011 and August 2010 provide evidence that the Veteran's obesity may be an "intermediate step" between his service-connected lumbar back disability and his myriad of joint disabilities. In particular, an August 2010 VA treatment report notes that the Veteran has "gained a 100 lbs following his back surgery and now has chronic knee discomfort." A similar notation was made in a June 2011 VA treatment report wherein it was noted "[Veteran] has gained a lot of weight after his lumbar surgery." Similarly, an April 2016 VA examiner found that the Veteran's obesity caused his restrictive respiratory disability. More recently, the Veteran's VA examination reports from July 2020 note that the Veteran weight has aggravated his hip disabilities and knee disabilities. Although obesity cannot be service connected on a direct basis, obesity may serve as an intermediate step between a service-connected disability and a condition claimed on a secondary basis. VAOPGCPREC 1-2017; Walsh v. Wilkie, 32 Vet. App. 300, 305-07 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). Upon review of the evidence, the Board finds that this theory of service connection between the Veteran's service-connected disabilities, in particular his lumbar spine, and his obesity as an "intermediate step" has not been adequately investigated. As such, before adjudication can proceed, the Board finds that appropriate VA examinations should be conducted to determine the potential of obesity being an intermediate step between the Veteran's service-connected disabilities and his current claim for service connection for his joint disabilities. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. Regardless of the Veteran's response, VA treatment records should be collected from the Lincoln, Nebraska VA Medical Center (this facility may be shuttered if so locate current records custodian) and VA Nebraska-Western Iowa Health Care System and all associated outpatient center and clinics. In particular, the AOJ should retrieve VA treatment records from January 1980 to August 2010, from July 2013 to September 2013, January 2015 to November 2016, and from December 2019 to present should be collected. Any archived records should be retrieved from storage. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. Request from SSA all of the records related to the Veteran's claim for SSA disability benefits, including medical records and copies of any decisions or adjudication, and associate them with the claims folder. All negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 3. After the above development is accomplished, schedule the Veteran for appropriate VA examinations. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiners as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiners, and the results of any testing must be included in the examination report. (A). OBESITY INTERMDIATE STEP: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbar spine caused or aggravated the Veteran's obesity. If, the Veteran's obesity is deemed to have been caused or aggravated by his service-connected low back or other service-connected disabilities, provide an opinion as to whether the obesity was a substantial factor ("substantial factor" is not defined quantitatively) in causing the Veteran's: (i) bilateral heel disability (ii) left shoulder disability (iii) left elbow disability (iv) left wrist disability (v) bilateral hip disability (vi) bilateral knee disability (vii) bilateral ankle disability, and (viii) respiratory disability. IN PROVIDING AN OPINION THE EXAMINER SHOULD COMMENT ON THE FOLLOWING: 1) an August 2010 VA treatment report notes that the Veteran has "gained a 100lbs following his back surgery and now has chronic knee discomfort." 2) A similar notation in a June 2011 VA treatment report wherein it was noted "[Veteran] has gained a lot of weight after his lumbar surgery." 3) an April 2016 VA examiner found that the Veteran's obesity caused his restrictive respiratory disability. last, 4) the July 2020 VA examination reports that the Veteran weight has aggravated his hip disabilities and knee disabilities. (B) BILATERAL HEEL DISABILITY: After considering the pertinent information in the record in its entirety, the VA examiner should identify any bilateral heel disabilities present. For each heel disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any bilateral heel disabilities identified were incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by any of his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (C) LEFT SHOULDER: After considering the pertinent information in the record in its entirety, the VA examiner should identify any left shoulder disability present. For each left shoulder disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any left shoulder disability identified was incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by any of his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (D) LEFT ELBOW: After considering the pertinent information in the record in its entirety, the VA examiner should identify any left elbow disability present. For each left elbow disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any left elbow disability identified was incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (E) LEFT WRIST: After considering the pertinent information in the record in its entirety, the VA examiner should identify any left wrist disabilities present. For each left wrist disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that the left wrist disability identified was incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (F) BILATERAL HIP DISABILITY: After considering the pertinent information in the record in its entirety, the VA examiner should identify any bilateral hip disabilities present. For each hip disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any bilateral hip disabilities identified were incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (G) BILATERAL KNEES: After considering the pertinent information in the record in its entirety, the VA examiner should identify any bilateral knee disabilities present. For each knee disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any bilateral knee disabilities identified were incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (H) BILATERAL ANKLES: After considering the pertinent information in the record in its entirety, the VA examiner should identify any bilateral ankle disabilities present. For each ankle disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any bilateral ankle disabilities identified were incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (I) RESPIRATORY DISABILITY: After considering the pertinent information in the record in its entirety, the VA examiner should identify any respiratory disabilities present. For each respiratory disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any respiratory disabilities identified were incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. (J) EYE DISABILITY: After considering the pertinent information in the record in its entirety, the VA examiner should identify any eye disability present other than dry eyes. For each eye disability identified, the examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any eyes disability identified (other than dry eyes) was incurred or aggravated by his active duty OR whether it is at least as likely as not caused by or aggravated by his service connected disabilities. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. He should address the Veteran's lay statements. 4. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.