Citation Nr: 21076230 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-47 918 DATE: December 22, 2021 ORDER Entitlement to service connection for headaches is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to a compensable rating for traumatic brain injury (TBI) is remanded. Entitlement to 10 percent rating based upon multiple noncompensable service-connected disabilities is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's headaches began during and have continued since active service. 2. The evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disorder is related to active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for headaches have been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1988 to June 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 decision, the Board granted the Veteran's petitions to reopen the previously denied claims for entitlement to service connection for an acquired psychiatric disorder and a back disorder. The Board also remanded the remaining claims on appeal, as identified above. In January 2021, the Veteran's attorney submitted a motion for a 90-day extension to submit additional evidence. The Board granted the request in a March 2021 letter. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Headaches The Veteran asserts that she has a headache disorder directly related to service. Service treatment records (STRs) reflect that the Veteran suffered a fall down a six foot ladder in August 1989. She complained of pain to the back of the head. Examination revealed a nickel sized area of tenderness and swelling to mid occipital region. Post service, a September 1991 private treatment record noted that the Veteran reported a "typical migraine headache" two days prior. A March 2000 VA treatment record noted a problem list including "intractable headaches." An April 2010 VA treatment record noted that the Veteran complained of severe headaches. At a January 2013 VA headaches examination, the Veteran stated that her headaches started with an in-service accident in August 1989. She stated that she was treated with ibuprofen in the military and was taken to the emergency room but was never treated. She stated that the next day she started throwing up blood and was transported to a naval hospital. She stated that she currently takes over the counter medication daily and has headaches at least two days a week. The examiner noted that the Veteran was diagnosed with headaches in 1997 and was treated for headaches until 2000. The examiner indicated that the Veteran experienced headache pain at the top and back of the head that typically lasts less than one day. The examiner opined that it is less likely than not that the Veteran's headaches are related to service. The examiner reasoned that the STRs fail to document a headache disorder, and the post-service treatment records first document diagnosis and treatment for headaches in 1997. At a July 2019 VA headaches examination, the examiner diagnosed headache secondary to idiopathic intracranial hypertension. The examiner opined that the Veteran's headaches were less likely than not incurred in or caused by the August 1989 fall or an in-service injury, event, or disease or caused or aggravated by a service-connected disability. The examiner noted that the Veteran was diagnosed with idiopathic intracranial hypertension (IIH)) in 2018 and that it is most likely caused by her obesity (BMI 47.5). The examiner further noted that headache is a common symptom of IIH. The examiner also noted that "Available evidence suggests many drugs used for the acute symptomatic treatment of headache can cause medication overuse headache, multiple factors seem to play a role, including genetic predisposition, central sensitization, and biobehavioral factors." The examiner further reasoned that there was no documented headache chronicity in service. In a January 2021 lay statement from the Veteran's sister, she stated that the Veteran fell during service and started having headaches. The Veteran's sister further stated that headaches have been an ongoing issue since service. She stated that the Veteran's wife has to drive now because the Veteran cannot drive with a headache. Further, the Veteran often cannot stay on a phone call long due to the frequency of her headaches. In a January 2021 lay statement from the Veteran's spouse, she stated that while the Veteran was still in the service, she noticed the Veteran was having headaches often and said that the military wasn't doing anything about it. She stated that the Veteran was in pain for six months before the military finally sent her to a doctor for them. The spouse further stated that the Veteran "really struggled with her headaches" when she was discharged from service, and that they have continued to worsen. Based on the lay and medical evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether her headaches began during service. As discussed above, the record demonstrates an in-service head injury and complaint of head pain. The record further demonstrates that the Veteran sought treatment for headaches just over a year after separation from active duty. Treatment records, along with the lay evidence of record, reflect that the Veteran's headaches reoccurred with regularity since discharge from service. Moreover, the Board notes that the Veteran is competent to report the onset of her headaches. See Charles v. Principi, 16 Vet. App. 370 (2002); (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno v. Brown, 6 Vet. App. 465 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). The Board acknowledges that the VA opinion evidence is against the Veteran's claim. However, the Board notes that both examiners failed to address the Veteran's lay statements or the notation of treatment for headaches in 1991. Consequently, these opinions carry less probative weight. Service connection for headaches is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' . . . , the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits"). 2. Acquired psychiatric disorder The Veteran asserts that she developed a psychiatric disorder in service, which continues to the present. She described an incident of hazing that she felt was motivated by a shipmate's homophobia towards her. She also described the military's lack of response to her head injury and subsequent physical manifestations. Further, she could not contact her family for a year in Cuba, and she felt "alone . . . cheated and mistreated." See, e.g., March 2021 statement. STRs note that, on July 1988 enlistment examination, psychiatric clinical evaluation was normal. In May 1990, the Veteran underwent a psychiatric evaluation. The Veteran described emotional distress, intermittent insomnia, fluctuating appetite and passive suicidal thoughts over the past several months which she attributed to poor working relationships with superiors, conflicts between her homosexual orientation and naval life, and concerns about her medically disabled parents who depended on her for financial support. She also described extensive problems prior to enlistment, including frequent fights, suicidal ideation, chronic dysphoria, poor control of anger, reckless driving, and heavy alcohol consumption. The examiner diagnosed alcohol dependence, in remission, and borderline personality disorder. The examiner felt that the Veteran's personality would prevent her from adequately adjusting to further military service, and recommended administrative separation. Following service, the Veteran submitted a claim for a "nervous condition" in October 1994. A January 1995 letter from a licensed clinical social worker noted that she saw the Veteran for individual psychotherapy in August and September of 1992. She stated that the Veteran presented with symptoms of depression and anxiety, including angry outbursts alternating with constricted affect, sleep disturbance, headaches, nightmares, and feelings of sadness. The social worker attributed these symptoms to the Veteran's childhood in a "quite dysfunctional family where she was neglected and to her father having murdered her mother about a year before I saw her." The social worker stated that she diagnosed the Veteran with PTSD, delayed onset. At a January 2013 VA mental disorders examination, the examiner diagnosed anxiety not otherwise specified (NOS) and dysthymia. The examiner opined that the Veteran's psychiatric disorder is less likely as not the result of military service, including her TBI. The examiner reasoned that the Veteran denied depression and anxiety at her discharge examination, and treatment records "are negative for this." The examiner noted "after a brief period of dysphoria around her discharge which abated on separation exam there were no records of treatment indicating harassment or mental health problems related to her injury/service." The examiner acknowledged that the Veteran reported sleep problems three times in May 1990, but that she also denied this issue on separation. In 1992, she was seen for childhood issues. Although the Veteran reported treatment for PTSD, there was no evidence of treatment in the file. During the current examination, the Veteran reported significant childhood abuse issues. She noted that she resolved many issues related to her childhood. The examiner noted residual behavioral patterns of avoidance, hypervigilance, anxiety, and sleep impairment. The examiner noted that the Veteran no longer used alcohol or drugs and had worked on her childhood issues, but continued to have explosive anger issues as well as PTSD symptoms/behaviors. However, the examiner opined that "neither of these [issues] can be linked to the military." A March 2014 private mental health assessment diagnosed anxiety disorder NOS secondary to TBI and exacerbated by preexisting PTSD. The examiner cited medical literature "detailing the emergence of mental health symptoms following a TBI that include anxiety and depression disorders." Notably, a study found that in individuals who suffered a TBI, more than two thirds of them developed novel psychiatric disorders, with anxiety disorders associated at the highest rate following a TBI. Further, individuals with a preexisting PTSD diagnosis are more likely to develop further psychiatric disorders following the TBI-causing trauma than individuals suffering a TBI who did not report preexisting PTSD. At a July 2019 VA examination, the examiner diagnosed malingering, alcohol use in sustained remission, cannabis use in sustained remission, and unspecified anxiety disorder. Regarding the diagnoses of alcohol and cannabis use disorders, the examiner opined that these disorders clearly and unmistakably existed prior to service and were not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner stated that, per the Veteran's report, she began using alcohol and cannabis at an early age, and either stopped using during service or in the 2000's. With regard to the diagnosis of anxiety disorder, the examiner stated that the Veteran's reports of symptoms on examination could not be relied upon with any significant weight due to the specific evidence of malingering. The examiner further stated that anxiety symptoms are known to be present within days to months of the TBI event and thus, the 2014 examiner's opinion that the Veteran's anxiety disorder is at least in part due to the TBI is a clear and unmistakable error. Although the Veteran had been diagnosed with PTSD in a clinical setting, the assessment of PTSD appears to have been made through the use of an unstructured interview with the Veteran and/or without assessment of presentation management/feigning etcetera, and based solely on subjective self-report. The examiner stated that, although the Veteran reported some ongoing mental health symptoms/anxiety-related symptoms at this time, and she attributes them to in-service events, the overwhelming evidence is that there were no symptoms of anxiety or trauma (PTSD) immediately post-TBI or while in service related to any in-service events that may have occurred; nor is there any evidence of trauma-related (PTSD) or anxiety symptoms for many years post-service. In the context of significant evidence of malingering/feigning on objective psychological instruments as well as multiple inconsistencies in her self-report between today's examination and prior exam/clinical notes/STRS, there is no evidence that her current report of symptoms is due to any in-service event. Rather, current and intervening stressors since military service are at least as likely as not the proximate and primary cause of her symptoms combined with her personality disorder negatively impacting her responses to those stressors (including her dissatisfaction with VA services ineligibility in the past and lack of service-connection). In March 2021, the Veteran underwent a psychiatric examination with a private psychologist. The psychologist diagnosed unspecified depressive disorder and unspecified anxiety disorder. The Veteran reported that while completing a routine check on a boat, she fell approximately 20 feet off of a ladder. She lost consciousness and was awakened by people laughing at her. No one came to her aid. A fellow serviceman had apparently intentionally removed the safety latch that resulted in her fall. Prior to this incident, this individual and another boat mate were heckling her and threatened to remove the safety hatch. She believed they were joking and this would not actually happen. She believed that the incident was motivated in part by his homophobia. She was required to keep working with this person after the incident. Complicating her situation was frustration over her medical care. She reported vomiting blood, having no appetite, blurry vision, headaches, and gastrointestinal distress. She requested an x-ray, yet "no one really wanted to address it . . . they really didn't want to help me." She recalled another incident in Cuba in which there was a boat accident and several people perished. Further, throughout her time in Cuba she was not able to contact her family. She began having panic attacks, nightmares, anger, and insomnia. She sought psychiatric help in the spring of 1990, and recalled that her treating psychiatrist informed her that she had trauma symptoms from the fall, yet apparently also cited her sexual orientation and personality disorder as ultimate causes of her psychological distress. Following review of the claims file, the examiner noted that STRs and collateral data denote a decline in the Veteran's functioning, mood state, and behavior in the military. Collateral data (lay statements) also link her mental health problems to her military experience, and they illustrate a departure from pre-military demeanor. Indeed, her service entrance examination was unremarkable. These indicators reasonably substantiate the Veteran's story. Thus, it is more likely than not that the Veteran's unspecified depression and unspecified anxiety disorder began in the service. The psychologist also directly addressed the July 2019 VA examiner's opinions. She first noted that, with regard to a personality disorder, such pathology should have begun to impair her functioning not only prior to the service, but in the year leading up to the accident. However, there is no evidence of any such impairment. While evidence suggested that the Veteran had a difficult childhood and that the Veteran used drugs at an early age, she took it upon herself to get treatment and to join the military, which is suggestive of considerable resilience and resourcefulness, not of significant impairment in functioning. The examiner cited the lay statement of the Veteran's sister which described the Veteran as successful and happy prior to joining the military. Further, the examiner noted that the STRs do not show any evidence of disciplinary action or mental health issues until after the accident, a full year after her enlistment. Finally, the psychologist addressed the examiner's finding that the Veteran was feigning symptoms for secondary gain. The psychologist explained that symptom exaggeration is not synonymous with feigned psychopathology, and that in their interview, the Veteran's response style seemed consistent with individuals who have chronic negative affectivity, heightened sensitivity (i.e., anxiety), and thus a tendency to be overly attuned to such symptoms. Upon review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has an acquired psychiatric disorder related to her period of service. Each opinion of record reflects review of the claims file, to include the Veteran's medical history, interview of the Veteran, and appear to be based upon sound medical principles. The opinions were well reasoned and included detailed rationales. In light of the forgoing, the Board is satisfied that the criteria for entitlement to service connection for an acquired psychiatric disorder have been met. The evidence, at a minimum, is in relative equipoise. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Wise, 26 Vet. App. at 531. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, another remand is warranted for the remaining matters on appeal. 1. Entitlement to service connection for a back disorder is remanded. In its June 2019 Remand, the Board instructed the AOJ to obtain a VA examination and etiological opinion to address whether the Veteran's current back disorder is related to an in-service back injury. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the August 2019 VA back disorders examination, the Veteran reported that she fell and suffered back trauma, to include a major tear in the back muscle, during service. The examiner provided a negative opinion, reasoning that there was "nothing suggestive of a lumbar spine injury during [the Veteran's] 1989 fall." The examiner further stated that the Veteran was not diagnosed with degenerative joint disease until July 2019, "29 years after service." Contrary to the examiner's rationale, STRs reflect that the Veteran complained of back pain in September 1989, two weeks after the reported fall. She continued to complain of back pain related to the fall in December 1989. Post-service, she submitted a claim for a back disorder in October 1994, four years after separation from active duty. Available treatment records show complaints of chronic back pain since April 2010, many years before the confirmed diagnosis of degenerative joint disease. As the examiner did not address any of this evidence, it is unclear to the Board whether the examiner reviewed the entire claims file. Moreover, the examiner failed to address the Veteran's complaints of continuity of symptomatology since service. Consequently, an addendum opinion which addresses the medical and lay evidence of record is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to a compensable rating for TBI is remanded. At the most recent August 2019 VA TBI examination, the Veteran reported that since her last evaluation she developed "seizures, last episode 2 days ago." The Board notes that treatment records obtained since the previous Board remand demonstrate reoccurring seizures since 2018. Under the relevant rating criteria, physical dysfunction as a residual of TBI, including seizures, is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board is unable to determine if the Veteran's seizures are a residual of her TBI, as the examiner did not discuss the reported seizures at the examination. Consequently, remand is necessary in order to obtain a new medical opinion that addresses whether the seizures are a residual of the Veteran's TBI. 3. Entitlement to 10 percent rating based upon multiple noncompensable service-connected disabilities is remanded. Finally, because a decision on the entitlement to a compensable rating for TBI could significantly impact a decision on the issue of entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities, the issues are inextricably intertwined. A remand of the claim for entitlement to a 10 percent rating based upon multiple noncompensable service-connected disabilities is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a suitably qualified examiner (other than the August 2019 examiner) to address the nature and etiology of the Veteran's claimed back disorder. The examiner must review the entire claims file, to include the service treatment records, October 1994 claim for back disorder, treatment reports reflecting complaints of back pain, and any lay statements. Then, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed back disorder is related to an in-service injury, event, or disease, to include the August 1989 fall. The examiner must provide a complete rationale for any stated opinion. 2. Obtain an addendum opinion from a suitably qualified examiner (other than the August 2019 examiner) to address the nature of the Veteran's TBI. The examiner must review the claims file, to include VA medical records reflecting treatment for seizures. Then, the examiner must opine as to whether the Veteran's seizures are a residual of her TBI. The examiner must provide a complete rationale for any stated opinion. 3. Readjudicate the remaining matters on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, she and her attorney should be provided with a supplemental statement of the case and afforded an appropriate time period for response before returning to the Board. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Roya Bahrami, 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.