Citation Nr: 21072822 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-48 695 DATE: December 6, 2021 ORDER Entitlement to service connection for a visual disorder (blurred vision), claimed as a residual of traumatic brain injury is denied. Entitlement to service connection for loss of taste, claimed as a residual of traumatic brain injury is denied. Entitlement to service connection for peripheral vestibular disorder (dizziness), claimed as a residual of traumatic brain injury is denied. Entitlement to service connection for loss of memory, claimed as a residual of traumatic brain injury is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for temporomandibular joint dysfunction (TMJ) is denied. REMANDED Entitlement to service connection for a thoracolumbar spine (low back) disorder is remanded. Entitlement to service connection for a cervical spine (neck) disorder is remanded. Entitlement to service connection for a sacroiliac disorder is remanded. Entitlement to service connection for a coccyx disorder is remanded. Entitlement to service connection for a neurological disorder of the bilateral lower extremities, as secondary to spine disorders, is remanded. Entitlement to service connection for a neurological disorder of the bilateral upper extremities, as secondary to spine disorders, is remanded. Entitlement to service connection for obesity, as secondary to spine disorders, is remanded. Entitlement to service connection for an unspecified pain disorder, as secondary to spine disorders, is remanded. Entitlement to service connection for depression, as secondary to spine disorders, is remanded. Entitlement to service connection for an unspecified gait/posture disorder, as secondary to spine disorders, is remanded. FINDINGS OF FACT 1. The Veteran had refractive error of the eyes. 2. Loss of taste is not related to service. 3. A peripheral vestibular disorder is not related to service. 4. Loss of memory is not related to service. 5. A right shoulder disorder is not related to service. 6. TMJ is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a visual disorder are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for loss of taste are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for entitlement to service connection for a peripheral vestibular disorder are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for entitlement to service connection for loss of memory are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 5. The criteria for entitlement to service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 6. The criteria for entitlement to service connection for TMJ are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the surviving spouse of a veteran (the Veteran) who had active duty service from September 1980 to December 1985. The Veteran died in January 2020. The appellant has been substituted as VA claimant. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as "chronic," there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for a visual disorder. Entitlement to service connection for loss of taste. Entitlement to service connection for peripheral vestibular disorder. Entitlement to service connection for loss of memory. Entitlement to service connection for a right shoulder disorder. Entitlement to service connection for TMJ. The Veteran entered peacetime service in September 1980. Service treatment records do not substantiate injury or disease with respect to vision, taste, the right shoulder, TMJ, memory, neurological function, or vestibular function at any time during service. A report of medical examination performed on October 28, 1985 (service separation) reveals normal clinical findings for the head, eyes, mouth, and upper extremities. A report of medical history completed by the Veteran on the same day as the examination reveals the Veteran's attestation that he had no history of, or current, eye trouble, ear trouble, head injury, or painful shoulder. The Veteran was separated from active duty service on December 16, 1985. He filed the current claim in November 2011, more than 25 years later. A VA eye examination in August 2017 reveals visual acuity of 20/40 or better in each eye. The Veteran reported sight sensitivity associated with migraines. The examiner found no appropriate diagnosis. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for the claimed disorders of the eyes, taste, memory, TMJ, right shoulder, and the claimed dizziness are not met. The Board also finds that the Veteran did not sustain a traumatic brain injury in service. There is nothing beyond the vaguest assertion to substantiate the incurrence of a traumatic brain injury during service. The Veteran and appellant have provided no details that would assist in substantiating this crucial element for a claim of service connection. The Veteran's assertions in this regard are vague. In November 2011, he simply reported "REPEATED HEAD INJURY INCIDENCE." The Veteran's reference to repeated injuries indicates there is no specific injury. The normal clinical examination at service separation is probative and persuasive evidence against the current assertion that the Veteran sustained a traumatic brain injury in service. Indeed, the normal clinical examination at service separation is probative and persuasive evidence against incurrence of any of the currently claimed disabilities in service. This is consistent with the Veteran's denial of any pertinent symptomatology at that time. Pertinent to the claimed TBI residuals, the Veteran's denial of a history of any head injury directly conflicts with his more recent assertion of repeated head injuries. In weighing the conflicting statements provided by the Veteran, context and contemporaneousness are critical factors. An earlier description of an event is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the earlier statement that there was no history of head injury is more reliable than the assertion of multiple head injuries made more than 20 years after the fact. This is bolstered by the Veteran's admission (by way of his claim) that he was suffering from memory loss. Furthermore, because the account at service separation was presented in the context of routine medical evaluation, it seems likely that the Veteran would report events carefully and accurately. The Board takes notice that the "medical diagnosis or treatment" exception to the hearsay rule (Fed. R. Evid. 803) provides that "statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care." While they are not officially applicable to veterans' law, recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans' Appeals' reasons. Rucker v. Brown, 10 Vet. App. 67 (1997). The lack of substantiation of a traumatic brain injury in service naturally weighs against any claims which are based on residuals of such injury. Thus the claimed dizziness, loss of taste, loss of memory, blurry vision, and TMJ have no in-service injury or disease on which to base a claim for service connection, or on which to support further development. The claim for the right shoulder is not based on traumatic brain injury; however, there is no injury or disease affecting the right shoulder in service, and the Veteran denied any history of, or current shoulder pain at service separation. Accordingly, there is also no basis for further development of that claim. The Veteran's visual claim is that he had blurred vision. This appears to be a description of loss of visual acuity, or refractive error. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including presbyopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VA Manual M21-1, Part III, Subpart iv, Chapter 4, Section B. The Board has considered the lay statements regarding etiology. Notwithstanding the Board's finding that there was no injury or disease in service, relating the currently claimed disorders to temporally remote events in service is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). These issues are medically complex. Therefore, they are outside the competence of a layperson. Such opinions are not capable of lay observation. Accordingly, the lay statements in this case are unpersuasive as to an etiologic relationship between the claimed disorders and service. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the Board finds that the claimed loss of taste, dizziness, memory impairment, TMJ, and right shoulder disorder are not related to service. The Board also finds that the Veteran did not have visual impairment that is considered a disability for VA purposes. In light of these findings of fact, the Board concludes that service connection for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Entitlement to service connection for a low back disorder. Entitlement to service connection for a neck disorder. Entitlement to service connection for a sacroiliac disorder. Entitlement to service connection for a coccyx disorder. Entitlement to service connection for a neurological disorder of the bilateral lower extremities. Entitlement to service connection for a neurological disorder of the bilateral upper extremities. Entitlement to service connection for obesity. Entitlement to service connection for a pain disorder. Entitlement to service connection for depression. Entitlement to service connection for a gait/posture disorder. The agency of original jurisdiction did not obtain medical opinions regarding the Veteran's various spinal claims. However, the Veteran submitted an August 1, 2014, letter from a chiropractor which nominally relates his spinal claims to service. The opinion is imprecise in its terminology and scope. It provides findings which do not conform to the rating schedule, such as, "his gait is off." The opinion identifies sacroiliac pain, which it relates to having to run in the military in 1981, and having to sit for prolonged periods while attending classes for the Navy. It does not explain how these routine activities would or did constitute injury or disease of the spine. It identifies "uncorrected segmental dysfunction" and muscular imbalances" leading to degenerative changes, but does not identify which segments or muscles are affected, nor does it identify what imaging or testing confirms these findings. The Board finds that the opinion is not adequate to adjudicate the issues involving the spine. However, it does provide the type of evidence that would trigger the duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The claims for depression, a pain disorder, obesity, gait disorder, and upper and lower extremity neurological disorders are secondary to the spine segmental disorders and are inextricably intertwined with those issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain an opinion, based on file review, to determine the nature and etiology of the Veteran's claimed spinal disorders, to include the cervical and thoracolumbar spine, sacroiliac, and the coccyx. The relevant documents in the claims file should be made available to the VA examiner. The VA examiner is requested to identify all diagnoses relevant to these regions of the spine, and to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed and diagnosed spinal disorders are causally or etiologically related to the Veteran's active service. If any of the claimed spinal disorders is believed to be related to service, the examiner should opine as to whether any of the claimed secondary disorders are related to a diagnosed spinal disorder. These include depression, a pain disorder, obesity, a gait disorder, and upper and lower extremity neurological disorders. The examiner is asked to review the August 1, 2014, letter of S. Johansen, D.C. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claims. If any benefit sought on appeal is not granted, the appellant and her representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. CLAIRE M. DAVIDOSKI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.