Citation Nr: 21074179 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 15-30 424 DATE: December 14, 2021 ORDER Entitlement to residuals of an in-service traumatic brain injury (TBI), diagnosed as nausea, sensitivity to light, cognitive impairment, headaches, and dizziness, is granted. REMANDED Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (hereinafter, service-connected psychiatric disabilities) is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the most probative evidence of record is approximately in equipoise concerning whether the Veteran's residuals of a TBI, diagnosed as nausea, sensitivity to light, cognitive impairment, headaches, and dizziness, were incurred during active duty. CONCLUSION OF LAW The criteria to establish service connection for service connection for residuals of a TBI, diagnosed as nausea, sensitivity to light, cognitive impairment, headaches, and dizziness, are met. 38 U.S.C. §§ 1110, 1111, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 2007 to June 2012, to include service in Southwest Asia Theater of operations during the Persian Gulf War. He is in receipt of a Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the file. At the hearing, the Veteran and his representative asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. This request was granted on the record, and additional evidence was received by the Board in December 2018. These appealed issues were previously before the Board in March 2020 and May 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for residuals of an in-service TBI Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2002); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that he experienced an in-service fall, resulting in a head injury and later development of residuals of a TBI which have endured to the present. For the reasons and bases discussed below, the Board concludes that the most probative evidence bolsters his assertions in this regard, and thus, service connection for residuals of an in-service TBI is warranted. The Veteran's file includes service treatment records showing that the Veteran incurred in-service head injuries in 2009 and 2011, and his post-service VA and private treatment records are replete with his consistent reports of signs and symptoms congruent with a TBI, such as nausea, sensitivity to light, cognitive impairment, headaches, and dizziness. This evidence suffices element (1) and (2) to establish service connection under the theory of direct service connection. Concerning the final element for service connection, a medical nexus between in an in-service injury and a current disability, the file includes two medical opinions addressing this matter. Consequent to the Board's prior remands, a VA physician reviewed the Veteran's file, interviewed the Veteran, and opined in August 2020 and July 2021 that the Veteran's residuals of an in-service TBI were less likely as not the result of his active duty. However, a closer reading of such reveals that the physician's stated rationale supports an allowance, and the unfavorable nature of the opinions is based on a misunderstanding of the legal concepts involved in adjudicating the Veteran's appeal. To the above point, the VA physician who completed the August 2020 and July 2021 VA examinations and provided the medical nexus opinions acknowledged the medical evidence reflecting the Veteran's in-service head injuries and symptoms congruent with a TBI until 2015. The physician also noted the Veteran's lay reports of TBI symptoms including nausea, sensitivity to light, cognitive impairment, headaches, and dizziness, and the diagnosis of residuals of a TBI reflected in these VA examination reports is based on such. However, the same examiner opined in August 2020 and July 2021 that a positive medical nexus between the Veteran's in-service head injuries and current TBI residuals could not be stated due to a lack of medical evidence bolstering the Veteran's lay statements concerning continued TBI residuals to the present. In sum, the VA physician who provided the August 2020 and July 2021 VA opinions accepted the Veteran's lay statements concerning his past and current TBI residuals for the purpose of rendering a diagnosis, and yet, stated that a medical nexus could not be established based on the same evidence. Critically, the United States Court of Appeals for the Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that a Veteran is competent to report symptoms experienced on a first-hand basis, and such reports may not be discounted based purely on a lack of corroborating medical evidence. In view of above, the Board finds that, despite the VA examiner's seemingly unfavorable opinion, the most probative evidence is approximately in equipoise concerning whether the Veteran's residuals of an in-service TBI, diagnosed as nausea, sensitivity to light, cognitive impairment, headaches, and dizziness, were incurred during active duty, and thus, service connection for such is warranted. 38 U.S.C. §§ 1110, 1111, 1112, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent for service-connected psychiatric disabilities is remanded. In the May 2021 remand, the Board directed the AOJ to ensure completeness of the record in an attempt to reconcile incongruent medical evidence. Specifically, while an August 2020 VA examination report reflects mostly mild psychiatric symptoms and resulting functional impairment, a November 2020 statement from a private psychiatrist alluded to an "attached [Disability Benefits Questionnaire]" reflecting severe symptoms and total social and occupational impairment due to the Veteran's service-connected psychiatric disabilities. Critically, the file was devoid of any DBQ completed by the private psychiatrist in November 2020. Further, there was no explanation for the Veteran's report of severe symptoms, such as persistent delusions and hallucinations, persistent danger of hurting himself or others, grossly inappropriate behavior, and neglect of personal appearance and hygiene, only months after completion of the August 2020 VA examination, at which the Veteran denied the same symptoms. Unfortunately, despite the Board's pointed remand directives, the Veteran did not respond to the AOJ's request to submit the psychiatric DBQ alluded to by the private psychiatrist in the November 2020 statement. Further, VA treatment records added to the file after the May 2021 remand refer to the Veteran's receipt of psychiatric treatment at a Vet Center in Omaha, Nebraska, during the pendency of the appeal, and yet, the same have not been sought or obtained by the AOJ during the pendency of the appeal. As a result, another remand is necessary to ensure completeness of the record for review, to include undertaking all efforts to obtain the Veteran's Vet Center records and a copy of the psychiatric DBQ referred to by the private psychiatrist in the November 2020 statement. Lastly, as noted above, the evidence available for review includes psychiatric assessments by VA and private clinicians, and such reflect stark incongruities concerning the symptoms experienced by the Veteran and the frequency, severity, and duration of those symptoms. Accordingly, the Board finds that the Veteran should be provided another VA psychiatric examination in an attempt to reconcile this these medically inconsistent findings. 2. Entitlement to a TDIU is remanded. The record for review reflects that the Veteran endured a period of unemployment during the early portion of the appeal period (in 2013 and part of 2014), and while it appears that he has been employed since mid-2014, such may have been in a sheltered work environment, and thus, may not qualify as a substantially gainful occupation under 38 C.F.R. § 4.16. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). As noted by the Board in the prior remands, the above evidence raises several critical matters which must be clarified concerning the Veteran's occupation(s) and employment environment during the pendency of the appeal, and he has been provided appropriate VA forms to complete and submit in furtherance of the benefit sought; however, he has not complied with VA's requests for information. In sum, the efforts of the AOJ and the Board to develop and adjudicate this matter have been frustrated by the Veteran's inaction and non-response. The critical nature of verifying these matters is noted by the applicable regulations and the United States Court of Appeals for Veterans' Claims (Court), with the latter holding that an appellant's failure to provide a completed copy of this form or the equivalent information may constitute abandonment of the TDIU appeal. 38 C.F.R. § 3.158; Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Alternatively, due to the Veteran's failure to fully cooperate, the Board may have no alternative but to adjudicate the claim simply based on the evidence currently of record. In view of the Board's dispositions regarding the Veteran's other appealed issues and the intertwined nature of such with the current matter, another remand is necessary to afford the Veteran an opportunity to provide VA with accurate information concerning his employment status and environment throughout the appeal period. He is encouraged to cooperate with the AOJ's efforts and engage his accredited representative in furtherance of completing the Board's remand directives. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. *In completion of the VA Form 21-8940, the Veteran is asked to provide a statement to VA which outlines his work environment and any circumstances that may render such akin to a sheltered work environment, to include any concessions or special allowances by his supervisor(s) to account for the functional impairment stemming from his service-connected disabilities. *The Veteran is encouraged to work with his representative and cooperate with the AOJ by providing the requested information and/or evidence within a reasonable time. 2. The AOJ must obtain and associate with the file all updated records of VA treatment pertinent to the Veteran. *The Board is particularly interested in all records of psychiatric treatment from the Vet Center in Omaha, Nebraska. 3. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for the disabilities subject to this remand. *The Board is particularly interested in the Disability Benefits Questionnaire alluded to by the private psychiatrist who provided the November 2020 statement in support of the Veteran's appeal. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the claims file or make a formal finding that a second request for such records would be futile. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the level of functional impairment stemming from his service-connected psychiatric disabilities. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. Thereafter, the VA examiner must address the following: * State the frequency, severity, and duration of each of symptoms associated with the Veteran's service-connected psychiatric disabilities, to include the level of functional impairment stemming from those symptoms. * Review the prior VA examinations and psychiatric evaluations completed by the private psychiatrist in October 2018 and November 2020 (if the latter is associated with the file) and attempt to reconcile the incongruities between the symptoms and the level of functional impairment reported. * Provide an additional statement addressing the impact of the Veteran's service-connected psychiatric disabilities on the Veteran's employability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must undertake any additional development deemed appropriate, to include referring the Veteran's appeal seeking a TDIU, to include undertaking any actions necessary to verify the Veteran's complete occupational history, yearly earnings, and the circumstances of his employment in furtherance of determining whether such may qualify as a sheltered work environment under Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). 6. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of the record. If any benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with a copy of the readjudication and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.