Citation Nr: 21069316 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-05 604 DATE: November 18, 2021 ORDER Entitlement to service connection for residuals of a head wound, to include a traumatic brain injury (TBI) and headaches, and to include as secondary to service-connected chronic sinusitis, is denied. REMANDED Entitlement to service connection for a back disability, to include intervertebral disc syndrome (IVDS) and lumbosacral strain, is remanded. FINDINGS OF FACT 1. The competent and credible evidence demonstrates that the Veteran does not have a current diagnosis for a TBI. 2. The competent and credible evidence demonstrates that the Veteran's headaches are a symptom of his service-connected chronic sinusitis. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a head wound, to include a TBI and headaches, and to include as secondary to service-connected chronic sinusitis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1994 to May 1995 with additional periods of service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a December 2019 videoconference hearing. A transcript of this hearing is of record. In February 2020, the Board, in pertinent part, remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the February 2020 remand instructions, so the matter of entitlement to service connection for a back disability must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Although the issue certified to the Board was for entitlement to service connection for IVDS, in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue has been recharacterized as entitlement to service connection for a back disability, to include IVDS and lumbosacral strain. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for residuals of a head wound, to include a TBI and headaches, and to include as secondary to service-connected chronic sinusitis The Veteran asserts that he had a head injury during service, which caused him to develop headaches. He reported that in November 1994, while he was on active duty, he was in a crowd at a night club, and he was struck in the head with possibly a stick or bottle. He said that he did not lose consciousness, but he was bleeding from the left side of his head. He was taken to the emergency room and treated for a head laceration. At the time, the Veteran said that he had some pain on the scalp for which he was given pain medication. See December 2014 VA examination. At the December 2019 Board hearing, the Veteran testified that he had a head injury during service while he was sitting down in the motor pool and a rack that was behind him fell and a tire hit him in the head. He said that he was taken to the hospital and received stiches. He said that he did not recall losing consciousness. After having the stiches removed, the Veteran said that he returned once every three months for treatment so they could check his scalp. He said that he was placed on profile and was restricted from performing physical training or driving. He said that a couple weeks after leaving service, he began experiencing persistent headaches. He said that he sought treatment for his headaches at a private medical facility beginning in 1995. He said that his doctors told him his headaches were related to him being hit in the head during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The question before the Board is whether the Veteran has a current diagnosis for residuals of a head wound, to include a TBI and headaches. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for residuals of a head wound, to include a TBI and headaches, is warranted. The Veteran's service treatment records (STRs) document that the Veteran entered active duty service with normal head, face, neck, and scalp clinical evaluation results. See November 1993 enlistment examination. A July 1994 emergency care and treatment record reflects that the Veteran sought treatment for headache and spitting up yellow mucus with streaks of blood. The physician noted that the Veteran had been treated for a sinus infection for two weeks with penicillin. The Veteran was diagnosed with sinus congestion. A November 1994 emergency care and treatment record documents that the Veteran sought treatment after being hit in the head at a night club. He thought the person might have had on a ring. There was no loss of consciousness. After copious irrigation of the wound on the left lateral aspect of the head, his head was fully explored. There was no skull depression. He had a wound measuring one-quarter inch deep and one-inch long. His wound was sutured and bandaged, and he was sent home. The physician diagnosed the Veteran with a head laceration. In December 1994, the Veteran returned to the emergency care facility for removal of his sutures. Subsequent STRs do not document any further treatment for the Veteran's head laceration. The record does not include a separation examination for his active duty service period. However, in National Guard STRs, there were no complaints, treatment, or diagnosis for any residuals of a head injury. At a November 2008 enlistment examination, the Veteran had normal head, face, neck, and scalp clinical evaluation results, and he affirmatively denied having frequent or severe headache on his associated report of medical history. In a November 2010 Periodic Health Assessment, the Veteran affirmatively denied having frequent headaches. In an October 2011 Periodic Health Assessment, the Veteran affirmatively denied having frequent headaches. At a December 2014 VA TBI Examination, the Veteran reported having current symptoms of migraine headaches and memory problems. He said that he had been having headaches for several years, but he could not specify the duration. Following an objective evaluation, the December 2014 VA examiner found that for the Veteran's claimed condition of TBI/head injury, there was no diagnosis, because there was no pathology to render a diagnosis. The December 2014 VA examiner opined that the Veteran's head injury was less likely than not incurred in or caused by active duty service. Summarizing the Veteran's November 1994 head injury, the December 2014 VA examiner found that the Veteran did not lose consciousness, had no memory loss, had no alteration in mental status, had no intracranial lesion, and had no neurological deficits. Further, the Veteran was not diagnosed with a TBI and did not receive further treatment for the incident after his sutures were removed in December 1994. Moreover, the December 2014 VA examiner noted that the Veteran had been having headaches from sinus problems prior to the November 1994 incident. Overall, the December 2014 VA examiner found that the Veteran's complaints of headaches were in relationship to his sinus problems. At an August 2015 private treatment record, the Veteran presented with a frontal headache. A head CT revealed inflammatory changes in paranasal sinuses. The private physician diagnosed the Veteran with headache and sinusitis. At an October 2015 comprehensive orthopedic examination, which was provided in connection with his Social Security Administration disability claim, the Veteran reported having headaches four to five times a week. The physician noted that they seemed to be associated with sinus congestion at times. The physician found that the Veteran's headaches were probably related to chronic sinusitis and one-migraine type headache. At a March 2020 VA TBI examination, the Veteran reported that he had been in the military from 1986 to 2014 and that he had sustained a head injury in 2013 when a steel rod fell and hit him on the head while he was working on some equipment. He said that he was dazed and confused and was taken to the base clinic where he had a scalp laceration sutured. After the incident, the Veteran said that he started experiencing headaches. He also indicated that he had memory problems. Following an objective evaluation, the March 2020 VA examiner diagnosed the Veteran with a TBI and found that he had headaches and a mental disorder attributable to a TBI. The March 2020 VA examiner opined that the Veteran's TBI was at least as likely as not caused by the blunt trauma to the head that led to a head laceration that he sustained while on active duty. At a March 2020 VA headaches examination, the VA examiner diagnosed the Veteran with headaches. The VA examiner opined that the Veteran's headaches were at least as likely as not proximately due to or the result of his sinusitis. A January 2021 VA addendum opinion was provided by the March 2020 VA examiner to respond to the RO's request to clarify the conflicting information given in the March 2020 VA opinions. The March 2020 VA examiner discussed the Veteran's head injury in 1994 as well as his treatment for sinusitis and complaints of headache in 1994. The March 2020 VA examiner found that headaches associated with discharge of yellowish mucus would more often than not be sinus-related. Overall, the March 2020 VA examiner determined that the cause of the Veteran's headache at every presentation would depend on the associating symptoms. At a July 2021 VA TBI examination, the Veteran reported that he had sustained two separate head injuries during active duty service. In the first incident, the Veteran described how he got hit in the head when a pole fell off a rack and hit him in the head. He could not recall if he had lost consciousness, but he had received stitches for his head laceration. The second incident occurred at a night club, when he was hit in the head by an unknown person, sustained a head laceration, and received stitches for it. He could not recall if he had lost consciousness as his memory was poor. Since the incidents, the Veteran said he was experiencing headaches, neck pain, and memory lapses. Following an objective evaluation, the July 2021 VA examiner diagnosed the Veteran with a TBI and found that he had headaches and a mental disorder attributable to a TBI. The July 2021 VA examiner opined that the Veteran's TBI was at least as likely as not caused by the head injury with laceration sustained in November 1994 in a night club. In a July 2021 VA headaches examination, the July 2021 VA examiner diagnosed the Veteran with posttraumatic headache. In an August 2021 opinion, the July 2021 VA examiner responded to the RO's request to resolve the conflicting VA examinations where one VA examination did not diagnose a TBI (December 2014) and another VA examination diagnosed a TBI (March 2020). Upon further review of the claims file and the relevant evidence, the July 2021 VA examiner found that the Veteran did not have a TBI diagnosed. Discussing the Veteran's in-service head injury after being hit in the head in a night club by someone wearing a ring for which he sustained a head laceration, the July 2021 VA examiner noted that the Veteran did not have loss of consciousness. Moreover, the records did not indicate if the Veteran was dazed or confused. Therefore, the July 2021 VA examiner concluded that the history provided, which included the head laceration, did not meet the requirement for a TBI. In August 2021, the Veteran was afforded a VA psychiatric examination in connection with the determination at the July 2021 VA TBI examination that he had a mental disorder as a residual of a TBI. The August 2021 VA examiner found that the Veteran had mental health symptoms of memory problems, insomnia, lack of motivation, and irritability. Relying on the July 2021 VA examination finding of a TBI and following an objective evaluation, the August 2021 VA examiner diagnosed the Veteran with major neurocognitive disorder due to a TBI. The Veteran is certainly competent to report his history of a head injury and any symptoms that arose following the head injury. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds that the Veteran has made inconsistent statements about the nature of his in-service head injury. While the November 1994 incident at the nightclub was documented in his STRs, the Veteran also described being involved in a separate incident in which he sustained a head injury; however, the circumstances and timeline associated with that incident was not consistently reported. In that regard, the Board notes that at his December 2019 Board hearing, the Veteran reported how during his active duty service, he was sitting down in the motor pool and a rack that was behind him fell and a tire hit him in the head. Then, at his March 2020 VA examination, the Veteran said while in the military, he had sustained a head injury in 2013 when a steel rod fell and hit him on the head while he was working on some equipment. Finally, at his July 2021 VA examination, the Veteran said that during his active duty service, prior to the incident at the night club, he got hit in the head when a pole fell off a rack and hit him in the head. The Board finds that the Veteran is an unreliable historian given the internally inconsistent statements he has made reporting on the circumstances of his in-service head injury. Therefore, the Veteran's statements regarding a separate incident resulting in a head injury, other than the documented November 1994 head laceration, are not credible. In this case, the Board finds that the most probative evidence concerning whether the Veteran has a TBI is the August 2021 VA addendum opinion. Based on the claims file and the relevant medical evidence, the VA examiner found that the Veteran did not have a TBI, because the Veteran did not have loss of consciousness from his November 1994 in-service incident. Further, the records did not indicate that the Veteran was dazed or confused. Finally, the VA examiner concluded that the Veteran did not meet the requirement for a TBI. Moreover, the Board finds that the Veteran's headaches have been attributed as a symptom of his service-connected chronic sinusitis. During service, the Veteran reported having headaches in July 1994 prior to his November 1994 head laceration and his headaches were found to be associated with his sinus congestion. Post-service records in August 2015 and October 2015 also document that the Veteran's headaches were associated with his sinusitis. Notably, at his December 2014 VA examination and in the January 2021 VA addendum opinion, the VA examiners found that the Veteran's headache symptoms were related to his sinus problems. Finally, the Board notes that the record also includes a diagnosis for major neurocognitive disorder due to a TBI. However, the August 2021 VA examiner's diagnosis was based, in part, on the July 2021 VA examination finding of a TBI. Because the Veteran has not been found to have a TBI, the Board finds that the August 2021 VA examiner's diagnosis for major neurocognitive disorder due to a TBI is not a reliable diagnosis, as it was based on inaccurate information. The Veteran has not demonstrated that he has the requisite specialized knowledge or training to diagnose a TBI or attribute his headaches to a separate disability from his service-connected chronic sinusitis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki,581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran has not presented any competent and credible of a current diagnosis for residuals of a head wound, to include a TBI and headaches, and the available evidence does not support that the Veteran has any persistent symptomatology that would suggest he has an underlying chronic disability, other than those for which he has already been service-connected. Accordingly, the Board finds that the Veteran's assertions that he has residuals of a head wound, to include a TBI and headaches, have little probative value. No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for residuals of a head wound, to include a TBI and headaches. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include IVDS and lumbosacral strain, is remanded. In the February 2020 remand, the Board instructed the examiner to state whether the criteria for a diagnosis of IVDS are met and to provide an etiological opinion addressing whether the Veteran's IVDS was incurred in or otherwise related to his active duty service. At a September 2020 VA examination, the Veteran was diagnosed with lumbosacral strain. The September 2020 VA examiner found that the Veteran's contention of IVDS would be better addressed with an MRI, which was not of record. The September 2020 VA examiner provided an unfavorable nexus opinion, but only addressed the Veteran's IVDS. No opinion was provided concerning the Veteran's current diagnosis for lumbosacral strain. Subsequently, the RO asked the September 2020 VA examiner to obtain the necessary testing to determine whether the Veteran had IVDS and then to provide an opinion. The RO also asked the September 2020 VA examiner that if no IVDS was found based on the testing, then an opinion addressing the Veteran's current lumbosacral strain would still be needed. In a November 2020 VA addendum opinion, the September 2020 VA examiner did not indicate that additional testing for the Veteran's back had been conducted to confirm whether he had IVDS or not. Furthermore, the September 2020 VA examiner did not provide an opinion addressing the Veteran's lumbosacral strain diagnosis. Instead, the September 2020 VA examiner provided another unfavorable nexus opinion, which relied, in part, on the lack of evidence of record of IVDS and the absence of medical documentation to corroborate the Veteran's testimony regarding his reported in-service back problems from carrying heavy ruck sacks. Because the September 2020 VA examiner did not obtain the requested testing, provide an opinion addressing the Veteran's lumbosacral strain, and discounted the Veteran's lay reports, the Board finds that the November 2020 VA addendum opinion is both inadequate and did not substantially comply with the Board's February 2020 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007); Miller v. Wilkie, 32 Vet. App. 240 (2020). Accordingly, a remand is required to obtain additional testing to confirm the Veteran's IVDS diagnosis and to provide a supplemental VA opinion. The matter is REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's back disability that are not currently of record. 2. Schedule the Veteran for a VA examination by an appropriately qualified clinician (M.D.) for his back disability. The examiner should respond to the following: (a.) State whether the criteria for a diagnosis of IVDS are met. The examiner should perform the necessary testing to confirm whether the Veteran has IVDS. (b.) For each diagnosis, is it at least as likely as not (50 percent or greater probability) that the Veteran's back disability had its onset in, or was otherwise etiologically related to his active duty service? In providing the above opinion, the examiner must provide an opinion addressing all the Veteran's back diagnoses provided during the pendency of the appeal, including his lumbosacral strain. The examiner must not rely on the finding that the Veteran did not have documented back problems following service without also specifically addressing the Veteran's lay statements regarding the onset and continuity of his back problems. See December 2019 Board hearing transcript. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. 3. To avoid another remand, the Agency of Original Jurisdiction (AOJ) must review the requested development and ensure that the Board's specific instructions have been completed in full. If any development is found to be inadequate, it must be returned to the providing examiner for corrective action. If such corrective action is not requested, then the Board will be required to return the case to the AOJ for substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After ensuring the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.