Citation Nr: 21064337 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-08 631 DATE: October 19, 2021 ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to the service-connected asthma and traumatic brain injury (TBI). 2. Entitlement to service connection for cervical and lumbar spinal damage, to include as secondary to the service-connected TBI. 3. Entitlement to disability rating in excess of 10 percent for TBI prior to December 17, 2020, and entitlement to a disability rating in excess of 70 percent thereafter for conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 6, 2009. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to the service-connected asthma and TBI is remanded. Entitlement to service connection for cervical and lumbar spinal damage, to include as secondary to the service-connected TBI is remanded. Entitlement to disability rating in excess of 10 percent for TBI prior to December 17, 2020, and entitlement to a disability rating in excess of 70 percent thereafter for conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI is remanded. Entitlement to a TDIU prior to October 6, 2009, is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty from May 1973 to May 1993. This case is before the Board of Veterans' Appeals (the Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently transferred to the RO in Houston, Texas. The Veteran testified before the undersigned during a January 2019 travel Board hearing; a copy of the transcript is of record. When this case was previously before the Board in May 2021, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. During the pendency of this appeal, entitlement to a TDIU was granted in an August 2021 rating decision, effective October 6, 2009. The issue of entitlement to a TDIU prior to October 6, 2009, is still before the Board. Historically, during the pendency of this appeal in a February 2021 rating decision, the evaluation of conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI was increased to 70 percent effective December 17, 2020. Within this rating decision, the RO stated that TBI was added to the mental health conditions as "conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI". Due to conflicting evidence, in the May 2021 remand the Board instructed that a VA examiner opine whether the symptoms of the diagnosed TBI overlapped with those from the service-connected conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder or whether they included any that were separate and distinct from the Veteran's other symptoms. In response to the Board's remand, the Veteran was afforded a VA-contracted examination in May 2021 in which the examiner stated that for the diagnosis of TBI there was no change in the diagnosis; the diagnosis was confirmed on examination. The examiner stated that the Veteran had an additional confirmed/documented mental health disorder of conversion disorder, seizures; it was not possible to differentiate of symptoms of TBI and each confirmed/documented mental health disorder. The Board thus finds that the issue on appeal is properly addressed as entitlement to disability rating in excess of 10 percent for TBI prior to December 17, 2020, and entitlement to a disability rating in excess of 70 percent thereafter for conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI. To this point, the RO subsequently denied service connection for seizures in an August 2021 supplemental statement of the case; however, this issue is not before the Board. Instead, seizures are part of the now service-connected conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI. However, the Board finds that the Veteran's complete disability picture for this service-connected disability has not been addressed as seizures were specifically not evaluated in May 2021. As such, the Board finds that the Veteran should be afforded a VA examination on remand to address the severity of all elements of this service-connected disability. In regards to claims for service connection for sleep apnea and cervical and lumbar spinal damage, in response to the Board's remand the Veteran was afforded a VA-contracted examination in July 2021 in which the examiner stated that there were no chronic complaints, treatments, or assessments associated with a back disability, a neck disability, or sleep apnea found in the service treatment records. The examiner stated that the Veteran's retirement examination was negative for complaint of "recurrent back pain" or related findings; thus, a negative opinion was rendered for the back and neck. The examiner stated that the retirement examination noted a sleep study; however, this was non-specific as there were no notes associated with this examination, and the Veteran did not have a sleep study until more than several years after retirement; thus, a negative opinion was rendered. The Board notes that this language is essentially copied from prior opinions. The July 2021 examiner also stated that service treatment records did not reflect increased manifestations beyond that of the natural progression for lumbar degenerative arthritis, degenerative disc disease, IVDS, bilateral lower extremity radiculopathy, and sleep apnea; most, if not all of these diagnosis developed after development of TBI and asthma during service thus, a negative opinion was rendered. The Board notes 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). Moreover, secondary service connection does not require that increased manifestations of a disability be present during service, and if aggravation is present, it would follow the development of the service-connected TBI and asthma. As such, the Board finds that addendum opinions should be sought on remand to include opinion on aggravation. The Board also notes that in addressing the requested etiology opinion, the VA examiner should be aware of the facts that the United States Court of Appeals for Veterans Claims (Court) recently held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In regards to the claim for a TDIU, this issue is intertwined with the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to the July 2021 examiner, or appropriate substitute if this examiner is not available, to provide addendum opinions. An examination is only required if deemed necessary by the examiner. The examiner is reminded that the Veteran has a TBI, that has been variously diagnosed, as related to a volleyball accident in service. The examiner should: a) Opine whether it is at least as likely as not (50 percent or better probability) that any sleep apnea, cervical, and lumbar spinal damage diagnosed during the pendency of this claim had their onset in service or are otherwise related to service. The examiner is reminded that 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, 3 Vet. App. 87, 89. b) Opine whether it is at least as likely as not (50 percent or better probability) that any sleep apnea, cervical, and lumbar spinal damage diagnosed during the pendency of this claim were aggravated by the Veteran's service-connected TBI. c) Opine whether it is at least as likely as not (50 percent or better probability) that any sleep apnea diagnosed during the pendency of this claim was aggravated by the Veteran's service-connected asthma. In providing the etiology opinion, the examiner should be aware of that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). A full and complete rationale for all opinions expressed must be provided. 2. Schedule the Veteran for VA examination(s) (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate clinician(s) to determine the nature severity of the Veteran's service-connected conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder and TBI. Different examinations should be scheduled with different clinicians as deemed necessary. The claims folder and this remand must be made available to the examiner(s) for review, and the examination report(s) must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner(s) should provide responses to the following questions: As it relates to the service-connected conversion disorder with mixed symptoms with other specified trauma and stressor-related disorder: (a.) Provide an accurate assessment of the current severity of the disability. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. As it relates to the service connected TBI with seizures: (b.) Provide an accurate assessment of the current severity of the Veteran's service connected TBI with seizures. The claims file must be reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished, and all clinical findings should be reported in detail. Ensure that the examiner provides all information required for rating purposes. In evaluating the Veteran, the VA examiner should consider the three main areas of dysfunction listed in the rating criteria under 38 C.F.R. § 4.124a that may have resulted from the Veteran's TBI: cognitive, emotional/behavioral, and physical. If deemed necessary, additional evaluation in one or more of these areas of dysfunction should be obtained so that there may be a complete picture of the Veteran's TBI. 3. Upon completion of the opinions ordered above, review the reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, furnish to the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.