Citation Nr: 21076451 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 10-46 723 DATE: December 23, 2021 ORDER Entitlement to service connection for neurobehavioral effects is denied. REMANDED Entitlement to service connection for a chronic lumbar spine disorder is remanded. FINDING OF FACT The Veteran does not have a current neurobehavioral disability other than a service-connected seizure disorder. CONCLUSION OF LAW The criteria for service connection for neurobehavioral effects have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2020. The issues of entitlement to service connection for neurobehavioral effects and for a chronic lumbar spine disorder were denied. The Veteran appealed the November 2020 decision to the Court of Appeals for Veterans Claims (CAVC). In an August 2021 Joint Motion for Partial Remand (JMPR), the CAVC reversed and remanded the issues. The specific findings will be discussed below. Entitlement to service connection for neurobehavioral effects The Veteran claims he has neurobehavioral effects due to exposure to contaminated water at Camp Lejeune. Specifically, he reports memory loss, concentration loss, and difficulty focusing. His representative has asserted that he had neurobehavioral effects, including "severe" memory loss, due to his service-connected seizure disorder. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran has a current disability. Therefore, service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (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, for certain chronic diseases a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a neurobehavioral disability. The November 1975 separation examination did not identify any neurological effects pathology. Post service, the Veteran's claims file does not show any complaints, treatment, or diagnosis for neurobehavioral effects. While the Veteran was noted to have below average memory in July 2015, he has not been diagnosed with any memory disorder. The Veteran's treatment records show that he had no memory issues in October 2000, March 2002, April 2005, November 2013, February 2014, February 2015, August 2015, February 2016, and October 2018. Furthermore, his concentration was good in February 2016 and October 2018. In October 2018 a VA opinion was rendered. The examiner opined the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. It was reasoned, Records were reviewed for this exam, including the Remand and associated instructions. The most relevant record is the 10/2014 DBQ for TBI which includes examinations conducted by a neuropsychologist and a neurologist to determine any neurobehavioral or cognitive effects from a claimed TBI in the service. These records would have documented any such symptoms if they existed, then would have made statements regarding whether the claimed/observed effects were due to TBI (as that was the focus of their exam). That exam specifically did not find any cognitive or neurobehavioral effects of any kind. Specifically, that DBQ states there were no memory problems, no problems with attention, concentration or executive functioning, normal judgment, normal motor function, normal visual spatial orientation, normal communication and consciousness, appropriate social interactions, and full alertness to person, time, place, and situation. It further states specifically that there are "no neurobehavioral effects." Also, the examiner noted, The remand states that "neurobehavioral effects is not a disease for which presumptive service connection based on exposure to contaminated water at Camp LeJeune may be granted." The Veteran is claiming neurobehavioral effects due to exposure to contaminated water at Camp LeJeune. The Neuropsychologist and neurologist who examined him in 2014 did not note any neurobehavioral effects at all. For this reason, it is less likely than not that the veteran has any neurobehavioral effects due to exposure to contaminated water at Camp LeJeune because there are no neurobehavioral effects noted in his record. In August 2019 VA treatment records, it was noted the Veteran's recent and remote memory was intact. He was diagnosed with generalized anxiety disorder, stimulant use disorder, seizure disorder, and history of schizophrenia diagnosis. In December 2020 a VA functional assessment instrument indicated the Veteran has the following risk factors: Impairment of orientation, memory, reasoning, and/or judgment. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran does not have current neurological disability, other than disabilities he is service-connected for. Initially the Board will address the specific findings of the JMPR. The JMPR noted, Regarding the neurobehavioral disability, the parties agree that the Board failed to address whether there was substantial compliance with its earlier remand instructions... In November 2017, the Board remanded the claim to provide Appellant with "the appropriate VA examination with opinions in order to assist in determining the etiology" of the disability. R. at 3496 (3442-3501). The Board's language suggests that it was mandating an actual examination of Appellant, along with any accompanying opinions. Yet, in October 2018, VA provided Appellant with only an opinion on whether the neurobehavioral disability is related to service, not an examination. The specific language of the November 2017 Board decision was as follows, "the Board finds that remand is required in order to obtain an examination with opinion addressing the nature and etiology of any current neurobehavioral effects of exposure to contaminated water at Camp Lejeune." Substantial compliance is required as noted in Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds, although a VA examination was not rendered, the RO substantially complied in providing the etiology opinion. The VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). In this case the first prong, competent evidence of a current disability or persistent or recurrent symptoms of a disability is not met. The record has consistently reflected a lack of neurological issues such as memory loss or difficulty focusing as associated with a neurological disability. The Board notes the Veteran is service-connected for seizure disorders at 100 percent since October 2014, a neurological disorder under diagnostic code 8910. See 38 CFR § 4.124a. He is also service connected for anxiety at 30 percent since January 2007, under diagnostic code 9400. See 38 CFR § 4.130. To the extent that the Veteran argues he has a neurological disorder, the Board agrees as he is diagnosed and service-connected for seizures. To the extent that he argues memory loss, concentration, and difficulty focusing, are symptoms he suffers from, the Board finds the 30 percent for his anxiety disorder accounts for those symptoms. Specifically, under DC 9400 a 30 percent is warranted for anxiety when there is evidence of mild memory loss (such as forgetting names, directions, recent events), among other symptomatology. If the Veteran believes he is not adequately compensated for the memory loss, concentration, or difficulty focusing, an increased rating claim should be submitted for the anxiety disorder. Therefore, due to a lack of evidence of a current disability, current service-connected disabilities accounting for reported symptomatology, and an October 2018 VA opinion on the etiology of any alleged neurological disability, the Board finds the RO substantially complied with the November 2017 Board remand. Furthermore, the Board finds service connection is not warranted for a neurological disability as there is no evidence of a neurological diagnosis other than the service-connected seizures. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a neurological disability, other than seizures, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, for the purposes of service connection, pain alone, without any underlying pathology or disease process, can constitute a current disability if there is objective evidence that the pain causes functional impairment resulting in a decrease of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a neurological disability other than the service-connected seizures. The Veteran specifically alleged memory loss, concentration loss, and difficulty focusing are the specific symptoms of his neurological disorder. However, the evidence has consistently demonstrated lack of memory or concentration issues as noted in the evidence above. The Board acknowledges the December 2020 VA functional assessment instrument which indicated the Veteran has the following risk factors: Impairment of orientation, memory, reasoning, and/or judgment. However, a risk is not evidence of a current diagnosis. There were no post service treatment records identifying a neurological condition other than the seizures and the Veteran has not alleged there is pain from the alleged memory loss, concentration loss, and difficulty focusing that has resulted in functional impairment. The evidence does not note functional impairment for these symptoms, other than the mild memory loss noted for the service-connected anxiety. Thus, there is no objective evidence that the Veteran's alleged neurological symptoms cause functional impairment, which results in a decrease of earning capacity. See Saunders, 886 F.3d at 1363. Accordingly, service connection for a neurological disability, other than seizures is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. REASONS FOR REMAND Entitlement to service connection for a chronic lumbar spine disorder The Veteran claims his chronic lumbar spine disorder is related to an in-service injury with a pugil stick or in the alternative related to the service-connected seizures. In January 1972 STRs the Veteran was treated for back pain after being hit with a pugil stick. On the November 1975 separation examination normal clinical findings were noted for the spine. Post service, in June 1976, the Veteran was afforded a VA examination. The examiner did not note any lumbar spine findings. In July 2008 a lumbar spine cat scan revealed arthritis. A July 2016 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with degenerative arthritis of the spine and multilevel degenerative changes in the lower lumbar spine by MRI. The Veteran reported, while in service, he was struck in the back with a pugil stick, sought medical treatment, and was treated with profile for 2 days. He reported he has had back pain over the years which has worsened due to falling down a flight of stairs after seizures in 2014 and in 2015. The examiner opined that the Veteran's lumbar spine disorder was less likely than not proximately due to or the result of any falls as a result of the Veteran's seizure disorder. It was reasoned, the claims file contained no evidence of any falls related to a seizure and the Veteran's reports of falls could not be substantiated. It was noted that the Veteran was treated for low back pain during his active service, but it resolved without residuals. The examiner also noted that the claims file contained no evidence of a fall related to the Veteran's seizure disorder. There was evidence of 2015 back pain complaints, however the Veteran denied any injuries or heavy lifting. In this case the JMPR noted, As to the lumbar spine disorder, the parties agree that the Board failed to properly address the lay evidence... The Board found that there is no evidence of an ongoing disability and that the first objective evidence is decades after service. R. at 13. But during a June 2016 VA examination, Appellant reported that his back was injured in service after being struck with a pugil stick and that the pain continued "over the years...." R. at 4080 (4079-88). While the Board focused on Appellant's reports of falling, see R. at 12-13, it did not address the lay statements about being struck in service and experiencing ongoing back pain since then. The parties also note that regarding Appellant's falls, the Board simply notes that Appellant subsequently denied experiencing any injuries; it never specifically addressed the credibility of those statements. See R. at 12-13. Accordingly, remand is warranted for the Board to properly address and evaluate the lay evidence. First the Board will address the lay statements regarding an in-service injury with a pugil stick. The STR's document a January 1972 report of back pain after being hit with a pugil stick. In this case the Board agrees that this incident was the first objective evidence of a back injury and this allegation is credible. The July 2016 VA examiner acknowledged this in-service injury; however, there was no opinion rendered as to whether the current disability was related to this in-service injury. The Board acknowledges the fact that the VA examiner noted the in-service back injury resolved without residuals, however, that does not address etiology for the current back disability. When VA undertakes to provide a VA opinion, it must ensure that the opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a new VA opinion addressing direct service connection is warranted. The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Forward the claims file to the examiner who conducted the July 2016 VA examination for an addendum opinion and rationale based on direct service connection. If the examiner is unavailable, the claims file should be forwarded to another appropriate examiner to provide the requested opinion and rationale. If the requested opinion cannot be provided without another examination of the Veteran, schedule him for a VA examination with an appropriate examiner. The examiner shall provide an opinion as to the following question: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's current lumbar spine disorder is the result of an injury incurred in or as a result of his period of active-duty service, to include the in-service back injury with a pugil stick? A detailed rationale supporting the examiner's opinions should be provided. The rationale for any opinion expressed must be provided. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.