Citation Nr: 21064778 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-00 924 DATE: October 21, 2021 ORDER Entitlement to service connection for a psychiatric disorder other than post-traumatic stress disorder (PTSD), to include an adjustment disorder, is granted. Entitlement to service connection for residuals of traumatic brain injury is granted. REMANDED Entitlement to service connection for a chronic disability manifested by memory loss is remanded. Entitlement to a rating in excess of 50 percent prior to November 9, 2010 for PTSD is remanded. Entitlement to a rating in excess of in excess of 70 percent on and after November 9, 2010 for PTSD is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to the question of whether there is a causal link between the development of an acquired psychiatric disorder other than PTSD and the Veteran's various service-connected disabilities. 2. The evidence is at least in equipoise as to whether the currently diagnosed traumatic brain injury residual condition was incurred in or is otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder other than PTSD have been met. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. § 3.303, 3.310; Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). 2. The criteria for entitlement to service connection for a traumatic brain injury residual condition have been met. 38 U.S.C. §§ 1110, 1111, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to May 1978. These matters as well as several additional matters were last before the Board in July 2018, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ). In rating decisions dated in May 2021 and August 2021, a number of the previously remanded issues were granted. In an August 2021 supplemental statement of the case, the AOJ denied the remaining four issues. Those four issues were then returned to the Board for its adjudication. In view of the facts found, and to provide broader consideration on appeal, the Board has recharacterized the claim of entitlement to service connection for a nervous condition as one for an acquired psychiatric disorder other than PTSD, to include an adjustment disorder. As a reminder, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2017. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is permitted based on aggravation, such that compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, there exist two potential theories of entitlement to secondary service connection namely, causation under § 3.310(a) and instead aggravation under § 3.310(b). 1. Acquired Psychiatric Disorder Other Than PTSD The Veteran contends that he has an acquired psychiatric disorder other than PTSD that is secondary to his service-connected disabilities. He seeks service connection on this basis. As stated in the Board's July 2018 remand, the Veteran has been followed for several years for a depressive disorder separate and distinct from his service-connected PTSD. However, at the time of the remand, he had never been afforded a VA examination to evaluate the nature and likely etiology of the condition. Accordingly, the Board's July 2018 remand specifically directed the AOJ to secure an examination and opinion to address these queries. In a August 2019 VA PTSD examination, the Veteran was evaluated to determine the nature and likely etiology of the claimed acquired psychiatric disorder other than PTSD. After a review of the claims file and an in-person examination, the examiner set forth a diagnosis of adjustment disorder with depressed mood, and further noted that the Veteran's depressive symptomatology was caused by the chronic pain he experienced due to his physical ailments as well as his worsening vision. The examiner outlined several psychiatric symptoms exhibited by the Veteran but stated that it was not possible to differentiate those symptoms between the Veteran's PTSD, his acquired psychiatric disorder other than PTSD, and his traumatic brain injury residual condition without speculation. As for the likely etiology of the claimed acquired psychiatric disorder, the examiner acknowledged that the condition was caused by the Veteran's chronic pain and decreased vision. However, as the Veteran did not have service-connected disabilities that corresponded to this symptomatology, the examiner did not find that it was at least as likely as not that the acquired psychiatric disorder was secondary to a service-connected disability. Thereafter, in a September 2020 VA PTSD examination, the Veteran was evaluated by the same individual who administered the September 2019 examination in order to determine the severity and likely etiology of the claimed acquired psychiatric disorder other than PTSD. After a review of the claims file and an in-person examination, the examiner confirmed a diagnosis of adjustment disorder with depressed mood, and further noted that the Veteran's depressive symptomatology was directly attributable to the chronic pain he experienced from his various other physical impairments. The examiner outlined several psychiatric symptoms exhibited by the Veteran but stated that it was not possible to differentiate those symptoms between the Veteran's PTSD and his acquired psychiatric disorder other than PTSD without speculation. As for the likely etiology of the claimed acquired psychiatric disorder, the examiner reiterated that the condition was at least as likely as not attributable to his service-connected disabilities, specifically his fibromyalgia and headache condition, on the basis of the Veteran's consistent self-reporting regarding the inception of his depressive symptomatology. Without necessitating further review of the record or continued development, the Board finds that the September 2020 examiner's opinion is sufficient to substantiate the Veteran's claim seeking service connection on a secondary basis. To begin, as no prior examination addressed the likely etiology of the acquired psychiatric disorder distinct from the PTSD, there is no evidence in the claim file which serves to contradict the September 2020 examiner's determination that the Veteran's acquired psychiatric disorder is attributable in part to his service-connected fibromyalgia and headache condition. Of course, the same examiner in August 2019 set forth a negative etiology opinion, but only due to the fact that the Veteran was not service-connected for fibromyalgia and a headache condition. The examiner in August 2019 still acknowledged that the acquired psychiatric disorder was due to chronic pain and headaches. Moreover, the Board finds the September 2020 examiner's opinion, as it applies to the question of secondary service connection, to be highly probative, in light of the claims file review and reference to the Veteran's medical history. Sklar v. Brown, 5 Vet. App. 140 (1993). Resolving all doubt in favor of the Veteran, the Board concludes that the evidence is at least in equipoise as to the question of whether the currently diagnosed acquired psychiatric disorder other than PTSD developed as secondary to a service-connected disability or combination of service-connected disabilities. Consequently, service connection is warranted for an acquired psychiatric disorder other than PTSD. Allen, supra. 2. Traumatic Brain Injury Residual Condition The Veteran contends that he currently experiences residuals of a traumatic brain injury that he believes occurred in service when ordinance exploded near him. He seeks service connection for those residuals on a direct basis. The Board remanded this matter in July 2018 in order to secure an opinion to evaluate the likelihood that the Veteran had any residual symptomatology attributable to an in-service traumatic brain injury. Specifically, the Board noted the results of an August 2016 neurology consultation at the Veteran's local VA medical center, wherein a VA medical professional attributed the Veteran's headache symptomatology to his purported in-service traumatic brain injury. The Board also noted the presence of a January 2003 memorandum of record confirming that a SCUD missile did strike at or near the base where the Veteran was stationed during service in January 1991. In a September 2019 VA traumatic brain injury examination, a VA examiner noted that the Veteran reported being in close proximity to a missile explosion which knocked him unconsciousness for about 10 hours. According to the Veteran, he experienced symptoms of double vision, headaches, and memory loss. The examiner administered a variety of diagnostic tests and confirmed a diagnosis of a traumatic brain injury residual condition. The examiner noted symptoms of mild memory loss, mildly impaired judgment, inappropriate social interaction, occasional disorientation, moderately severe impairment of visual/spatial orientation, mild headaches, and verbal and physical aggression. The examiner also detailed the results of diagnostic testing in February 2009 which documented some neurocognitive difficulties as well as an MRI examination of the brain in 2010 which documented a small pontine cavernous angioma. The examiner attributed the Veteran's headache symptomatology to the in-service traumatic brain injury and noted that the condition contributed to impairment of occupational functioning as he exhibited chronic memory loss and confusion as well as belligerence in interacting with co-workers. As for the likely etiology of the traumatic brain injury condition, the September 2019 examiner found it at least as likely as not that the Veteran experienced residuals from an in-service traumatic brain injury that occurred as a result of his proximity to ordinance which struck near the base he was stationed at in January 1991. In support thereof, the examiner relied on the Veteran's self-reported loss of consciousness following the purported injury as well as the January 2003 memorandum previously highlighted by the Board. The examiner also reiterated that the Veteran's cognitive defects and memory deficits were residuals directly attributable to the in-service traumatic brain injury. Thereafter, in a February 2021 addendum examination to again evaluate the claimed traumatic brain injury residual condition, a VA neurosurgeon declined to endorse a diagnosis. After a review of the claims file, the examiner found that the Veteran did not meet the diagnostic criteria for confirming a diagnosis of a traumatic brain injury residual condition. Specifically, the examiner outlined the 10 distinct criteria for the diagnosis of a traumatic brain injury residual condition and noted that the Veteran did not exhibit any of those criteria. As such, the examiner declined to attribute any residual symptomatology to the claimed traumatic brain injury residual condition, nor did he set forth an opinion as to the likely etiology of the claimed condition. Upon review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a diagnosable residual condition attributable to an in-service traumatic brain injury; as such, service connection is warranted for the condition. Where, as here, there are conflicting medical opinions in the claims file, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner's opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D'Aires v. Peake, 22 Vet. App. 97 (2008). While both the September 2019 and February 2021 examiners reviewed the claims file and evaluated the Veteran via an in-person examination, the February 2021 examiner discounted any diagnosis of a traumatic brain injury residual condition without a thorough discussion of the positive evidence of record which reconciled that lack of a diagnosis with the September 2019 VA examiner's endorsement of a traumatic brain injury residual condition. Specifically, the February 2021 did not discuss the findings of the August 2016 VA physician who found that the Veteran likely experienced a traumatic brain injury in service that contributed to his later development of a headache condition. Furthermore, while the February 2021 stated that the September 2019 examiner misdiagnosed a traumatic brain injury, they did not explain why they believed that the prior diagnosis was inappropriate, other than to state that the Veteran did not meet any of the diagnostic criteria for establishing a traumatic brain injury residual condition. Finally, the February 2021 examiner did not attribute the Veteran documented cognitive deficits and memory issues to a known diagnosis. In light of these deficiencies, the Board finds that the February 2021 examiner's opinion lacks significant probative value. Sklar v. Brown, 5 Vet. App. 140 (1993). By contrast, the September 2019 VA examiner equally relied on a review of the claims file and an in-person evaluation, but also considered the positive evidence of record outlined by the Board. As such, the Board finds the September 2019 VA examiner's opinion to be highly probative of the query of whether the Veteran experienced a traumatic brain injury in service and whether he currently has residual symptomatology that is attributable to that in-service traumatic brain injury. Sklar, supra. Ultimately, the Board finds that the evidence is at least in equipoise as to the issue of whether the Veteran experienced a traumatic brain injury in service and whether he currently has residual symptomatology that is attributable to that in-service traumatic brain injury. Accordingly, as the evidence in support of the service connection claim is at least as probative as the evidence against, the Board concludes that service connection is warranted for a traumatic brain injury residual condition on a direct basis. 38 C.F.R. § 3.303. The claim is thus granted in full. REASONS FOR REMAND 1. Entitlement to service connection for a chronic disability manifested by memory loss is remanded. The Board in its prior July 2018 remand instructed the AOJ to secure an addendum opinion addressing the likely etiology of the neurocognitive disorder associated with the Veteran's symptoms of memory loss that was diagnosed in a March 2016 VA psychiatric examination. Upon receipt of the case, the AOJ scheduled the Veteran for a number of VA examinations. However, the Board does not find that the AOJ appropriately secured an addendum etiology opinion addressing the etiology of the diagnosed neurocognitive disorder. Specifically, in a September 2019 traumatic brain injury examination report, a VA examiner found that the Veteran exhibited cognitive defects and memory loss that were attributable to his in-service traumatic brain injury. However, that examiner did not establish whether the Veteran had a separately diagnosable neurocognitive disorder manifested by memory loss or whether the Veteran's documented memory loss was wholly attributable to his traumatic brain injury residual condition. This unclear diagnosis is further complicated by the fact that the subsequent VA examiner who evaluated the traumatic brain injury in February 2021 dismissed any evidence that the Veteran experienced symptoms of memory loss or that he had a diagnosable neurocognitive disorder. Furthermore, the VA examiner who administered the August 2019 VA psychiatric examination also dismissed a diagnosis of a neurocognitive disorder and declared that the prior diagnosis was made in error. In support thereof, the August 2019 examiner stated that the "examiner noted no cognitive impairment during exam." In addition, the September 2019 examiner noted that the Veteran was not followed for a neurocognitive disorder according to his VA medical records, and no cognitive impairment was found in the 2008 neuropsychological consultation. See August 24, 2019 Disability Benefits Questionnaire Medical Opinion Report. This was corroborated by the individual who administered the September 2020 VA psychiatric examination, who also dismissed a diagnosis of a neurocognitive disorder despite acknowledging the prior diagnoses of the condition. In support thereof, the examiner stated only that the Veteran's symptoms of memory loss and cognitive deficits could be better accounted for by a mental disorder. Remand is necessary in order to clarify the diagnostic picture in light of these contradictory opinions. To begin, in light of the Board's determination that service connection is warranted for a traumatic brain injury residual condition, a VA clinician must establish whether the Veteran's claimed cognitive deficits and memory loss are wholly attributable to the traumatic brain injury residual condition, are attributable in part to his separately service-connected psychiatric disorders coupled with the traumatic brain injury residual condition, or whether they are manifestations of a distinct neurocognitive disorder. If a neurocognitive disorder diagnosis is not appropriate, the chosen examiner must explain why this is so with a thorough rationale that reconciles the prior diagnoses of the condition with the more contemporary determinations of various VA examiners that the neurocognitive disorder diagnosis was made in error. However, if the chosen examiner does find that a separate diagnosis of a neurocognitive disorder is warranted then they must set forth an opinion as to the likely etiology of the claimed disorder and also must clearly delineate what symptoms are attributable to each of the Veteran's various psychiatric and neurological disabilities. 2. Entitlement to an increased rating for PTSD is remanded. In light of the newly service-connected traumatic brain injury residual condition as well as the acquired psychiatric disorder other than PTSD, remand is necessary in order to allow the AOJ to establish ratings for both of these conditions and determine what distinct symptomatology, if any, is attributable to either condition separate from those symptoms that are currently being compensated for and contemplated within the ratings assigned for the PTSD. To that end, the Board notes that the development concerning the claimed neurocognitive disorder may also reveal that the Veteran experiences symptomatology that is encompassed within the currently assigned ratings for PTSD. As such, the PTSD claim is inextricably intertwined with the remanded claim for a chronic disability manifested by memory loss and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Schedule the Veteran for a VA mental health examination to evaluate the nature and likely etiology of the claimed chronic disability manifested by memory loss. The electronic claims file and any other information deemed pertinent must be provided to and reviewed by the examiner, and the examiner must carry out any and all special studies or tests, including psychological testing and evaluation, necessary for proper evaluation. First, the examiner must determine whether the Veteran has a separately diagnosable chronic disability manifested by memory loss, to specifically include a neurocognitive disorder. If a separately diagnosable condition is not warranted, the examiner must give a thorough rationale for why this is so, to include discussion of the prior diagnoses of such a condition and why those diagnoses were made in error. Specifically, the examiner must discuss the March 2016 VA psychiatric examination and the diagnosis of a mild neurocognitive disorder. The examiner must also demarcate, if possible, the symptomatology attributable to the diagnosed adjustment disorder, the purported neurocognitive disorder, the obstructive sleep apnea, and the residuals of a traumatic brain injury, and determine what symptomatology is distinct from that which is encompassed within the PTSD diagnosis. Regardless of whether a separately diagnosable condition is warranted or not, the examiner should opine as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that such disability had onset in or is otherwise related to the Veteran's period of active duty service. Furthermore, the examiner should also opine as to whether it is at least as likely as not that any such disability was caused or aggravated by one or more service-connected disabilities (listed in an August 2021 rating decision). If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated any diagnosed chronic disability manifested by memory loss, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. To that end, when setting forth this opinion, the examiner should ensure that they apply the proper standard of evaluation. Specifically, the standard for secondary aggravation is any increase in disability, as opposed to the standard of "beyond the natural progression" as noted on the examination form itself. Moreover, the examiner is also requested to describe the degree of all social and occupational impairment resulting from the combined effect of the Veteran's various psychiatric and neurological disorders, to include the previously service-connected PTSD. This examination should reflect all subjective complaints and objective findings pertaining to the Veteran's various psychiatric disorders. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.