Citation Nr: 21076673 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-30 574 DATE: December 27, 2021 ORDER Entitlement to service connection for stroke is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a neck disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's stroke was not incurred during service or within one year of discharge from service and is not attributable to service. CONCLUSION OF LAW The criteria for service connection for stroke are not met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to October 1978. He also had Army National Guard service from July 1979 to April 1987. A VA information report of August 2020 determined that the latter period of Army National Guard service does not meet the definition of veteran under 38 U.S.C. § 101(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 2009. The Veteran indicated on a claim form filed in June 2003 that his last name during his service years was Baker (his mother's last name) and that he changed his last name to Toombs (his father's last name). The Board remanded this matter in May 2018 and July 2020. Service Connection Generally, the elements of service connection are a present disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is a presumption of service connection for certain chronic diseases if the disease manifested in service or to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the listed chronic conditions, service connection may also be established by a continuity of symptomatology from service or the presumptive period following service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Service connection for a listed "presumptive" disease may still be established upon adequate evidence of actual causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994). Service connection may be granted on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury. Any increase in severity of a non-service-connected disease or injury that is proximately due to, or the result of, a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for stroke. In May 2007, the Veteran filed a service-connection claim for "mini strokes." A rating decision of June 2009 denied service connection for strokes (claimed as mini-strokes). In July 2010, the Veteran filed a claim to reopen the previous denial. A rating decision of August 2011 denied service connection for stroke (claimed as mini-strokes) on the grounds that new and material evidence had not been received since the prior, final denial of the claim. The Veteran appealed, and the Board reopened and remanded the claim by an order of May 2018. In a statement of June 2012, the Veteran contends that his in-service injuries include unspecified injury when falling hard when rappelling off a high mountain, and injury to the neck and spine when stomped on the top of his head by a sergeant. In July 2019, the Veteran underwent a VA examination of the central nervous system and neuromuscular diseases. The diagnoses were residuals of cerebral vascular accident (CVA), diagnosed in 2008 and 2011, and history of transient ischemic attack (TIA), diagnosed in 2011. In December 2020, the Veteran again underwent a VA examination for the central nervous system and neuromuscular diseases. The diagnosis was cerebrovascular accident. The Veteran reported to the examiner that his condition had its onset in 2003, when he had a "small stroke." In the examiner's opinion, the claimed condition was less likely than not incurred in, or caused by, a disease, injury, or event of service. The rationale was based on the following considerations: the Veteran served in the Army from October 1976 to October 1978; review of the medical record does not indicate a history of stroke during active duty or immediately after discharge from active duty; and the stroke occurred almost 25 years after discharge from active duty. The examiner acknowledged the Veteran's contention that he incurred head injuries during service when he fell while rappelling off a high mountain. The report also noted the Veteran's statement, upon examination in 2003, that he was hit on the head during service as a member of the boxing team. The examiner considered the more likely etiology of the Veteran's stroke to be a long history of substance abuse, including cocaine and alcohol, as documented in the medical records. The examiner explained that cocaine is a potent, central nervous stimulant and that toxicity can result in a variety of clinical manifestations, including ischaemic and hemorrhagic stroke. It was noted that potential mechanisms involved in cocaineinduced stroke include vasospasm, cerebral vasculitis, enhanced platelet aggregation, cardiac embolism, and hypertensive surges associated with altered cerebral autoregulation. Brain thrombosis is listed as a chronic disease under 38 C.F.R. § 3.309(a). Service connection cannot be granted on a presumptive basis in this case because a preponderance of the evidence is against finding that a stroke occurred during service or the year following discharge from service or that a stroke manifested to a compensable degree within one year of service. As a layperson, the Veteran is competent to report his experienced symptoms and events of service, but he is not competent to identify the cause of his post-service strokes. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). There is no competent opinion of record that associates the Veteran's strokes with a disease or injury of his service or that suggests that the strokes in 2008 and 2011, or his transient ischemic attacks, were caused or aggravated by his service-connected disabilities of right ear hearing loss, left ear hearing loss, and tinnitus. The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because a preponderance of the evidence is against finding that the third element of Shedden has been met, the claim must be denied. In a filing of December 2021, the Veteran alleges a failure in VA's duty to assist "to the extent [that] VA has not collected all ongoing medical reports." No specific records are cited. The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c), (d). The duty to assist has been met in this case. The evidence of record includes the Veteran's service treatment records, military personnel records, post-service VA and private treatment records, Social Security Administration records, and statements of the Veteran. VA's duty to assist includes a VA medical examination or opinion when necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4). The Veteran's December 2021 filing also alleges VA has not provided adequate VA medical examinations. The Veteran underwent a VA medical examination for central nervous system and neuromuscular diseases in December 2020. The corresponding examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder including medical history, and documented his current medical condition. The Board concludes that the December 2020 VA examination report is adequate, and that the examiner's nexus opinion is adequately supported by a rationale. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. In October 2003, the Veteran filed a service-connection claim for depression, which was denied by a rating decision of June 2004. In May 2007, the Veteran filed a service-connection claim for PTSD, which was denied by a rating decision of July 2009. In July 2010, the Veteran filed a claim to reopen the previously denied claims of entitlement to service connection for depression and for PTSD. A rating decision of August 2011 denied entitlement to service connection for depression and for PTSD on the basis that new and material evidence had not been received with respect to either claim. The Veteran appealed. By an order of May 2018, the Board reopened and remanded a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In July 2020, the Board denied service connection for PTSD and remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. The Board's order explained that the VA examiner for the PTSD examination of July 2019 failed to provide a rationale for determining that the etiology of the Veteran's major depressive disorder could not be determined without mere speculation. In December 2020, the Veteran underwent a VA examination for PTSD. PTSD was diagnosed as his only mental health disorder. The Veteran's claimed stressor, described as continued stressful memories and nightmares centered around combat activity of seeing friends killed or mangled, was found to be adequate to support the diagnosis of PTSD. In the examiner's opinion (which was provided in February 2021), the Veteran's symptoms of depression are at least as likely as not caused by in-service events, but the depression is an aspect of the diagnosed PTSD and not a disorder in its own right. The examiner offered a positive nexus opinion with respect to diagnosed PTSD. A remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998), because there has not been substantial compliance with the Board's remand instructions of July 2020. Specifically, contrary to the action language of the Board's remand, the December 2020 examiner did not identify all acquired psychiatric disorders other than PTSD. The section of the form (Medical Opinion Disability Benefits Questionnaire) in which the examiner is asked for an opinion as to any conflicting medical evidence of record was left blank by the December 2020 VA examiner. An August 2007 record of Dr. J. L. diagnoses adjustment disorder and personality disorder NOS, with notation of an extensive history of polysubstance abuse. An April 2012 record of Dr. B. M. notes an impression of depression/ anxiety/PTSD/conversion disorder. A February 2016 record of Dr. J. D. notes an impression of depression, anxiety, and PTSD. A VA treatment record of December 2020 diagnoses PTSD, major depression (recurrent, moderate), mild cognitive impairment, and alcohol use disorder, and listed among the Veteran's active problems are anxiety, chronic PTSD, excessive alcohol consumption, cocaine abuse, major depression (single episode, in partial remission), pedophilia, and recurrent major depressive episodes (moderate). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal, and service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, even if a non-PTSD mental disorder was not diagnosed upon current examination in December 2020, it remained essential for the examiner to consider the diagnoses of a psychiatric disorder other than PTSD at any time since the Veteran's claim was filed in July 2010. The Board notes that, in a VA treatment record of June 2003, the Veteran claims to be a combat veteran of Vietnam. Although his military service began in October 1976, and the law defines the Vietnam Era as ending May 7, 1975 (38 U.S.C. § 101(29)), the Veteran states that he was a sniper in Vietnam, where he "engaged in a lot of combat." He reported to the VA clinician in 2003 that he was hospitalized for six months upon his return from Vietnam in an effort to help him readjust to society. The Veteran also told the December 2020 VA examiner that he had secret combat missions. The service treatment records and service personnel records do not corroborate the Veteran's account of combat, service in the Republic of Vietnam, or a six-month, in-service hospitalization for mental health or readjustment. For the separation examination report of September 1978, the psychiatric evaluation was noted to be "normal." Furthermore, the Board's July 2020 order, in denying service connection for PTSD, determined that the Veteran did not engage in combat. Identical issues may not be relitigated in the same case where the set of facts is the same. See Hazan v. Gober, 10 Vet. App. 511, 521 (1997). The Board's July 2020 denial of service connection for PTSD is final. 38 C.F.R. § 20.1100. Therefore, entitlement to service connection for PTSD is not currently an issue on appeal before the Board. In general, service connection may be granted for more than one mental health disorder (PTSD or otherwise), but the disabilities cannot be separately rated unless they result in different symptom manifestations. 38 C.F.R. § 4.14. The Veteran's options to continue to seek service connection for PTSD include filing a supplemental claim based on new and relevant evidence. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.2501. 3. Entitlement to service connection for a back disorder. 4. Entitlement to service connection for a neck disorder. In June 2003, the Veteran filed a service-connection claim for "spine and neck condition." In October 2003, he filed a service-connection claim for "spinal injury." A rating decision of June 2004 denied service connection for a cervical spine/neck condition. In November 2008, the Veteran filed a service-connection claim for a neck and spine condition. In a June 2009 rating decision, the agency of original jurisdiction (AOJ) denied service connection for cervical spine condition, spinal spondylotic changes, C4/5 and C5/6, with diffuse disc bulge-disc complex and neuroforaminal narrowing and spinal canal stenosis on the basis that new and material evidence had not been received. Service connection was also denied for "spine condition." In July 2010, the Veteran filed service-connection clams for spine condition and for cervical spine condition. A rating decision of August 2011 denied service connection both for cervical spine condition, spinal spondylotic changes, C4/5 and C5/6, with diffuse disc bulge-disc complex and neuroforaminal narrowing and spinal canal stenosis, and for a spine condition, on the basis that new and material evidence had not been received as to either claim. The Veteran appealed. A Board decision of May 2018 reopened and remanded the claims of entitlement to a service connection for a cervical spine disorder and for a low back disorder. In July 2020, the Board again remanded the back and neck issues. In December 2020, the Veteran underwent VA examinations for the back and for the neck. Degenerative arthritis of the spine and cervical spondylosis with myelopathy were diagnosed. The VA examiner offered negative nexus opinions concerning the back and the neck, with the same rationale offered for both opinions. The examiner based her opinions on the following considerations: the Veteran served in the Army from October 1976 to October 1978; review of the medical record does not indicate any history of chronic back pain or chronic neck pain during active duty or immediately after discharge from active duty; there is no indication that the current back or neck symptoms started in service or are related to serving in the military; the Veteran started complaining of back pain and neck pain almost 25 years after his 1978 discharge from active duty, the latter timeline does not support the notion that current back symptoms or neck symptoms started during active duty; degenerative changes of spine are normal wear-and-tear of the body; and "a risk factor is aging and common in people over the age of 40 years." For these reasons, the examiner concluded that the Veteran's degenerative arthritis of the spine and cervical spondylosis with myelopathy did not have their onsets in service, did not manifest within one year of separation from service, and are not otherwise related to service, to include any verified period of active duty for training or inactive duty for training. Because there has not been substantial compliance with the Board's July 2020 remand directives, a further remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's July 2020 remand required that the VA clinician, in formulating any opinions as to the claimed disorders of the back and neck, specifically acknowledge and consider the Veteran's competent reporting as to his symptoms and their history, including giving consideration to the fact that the DD Form 214 shows that the Veteran was a cannon crewman during service and to the Veteran's contention in a March 2012 statement that he damaged his spine and neck from loading gun tanks. In a statement of June 2012, the Veteran cites unspecified injury from falling hard when rappelling off a high mountain, and injury to the neck and spine when a sergeant stomped on the top of his head. Furthermore, a VA treatment record of June 2003 notes his contentions that he injured his back and neck during service due to jumping out of airplanes. An adequate nexus opinion must take into account a veteran's competent report as to the onset and history of the claimed disorder. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). Here, however, the December 2020 VA examiner determined, without adequate explanation, that "there is no indication that the current back or neck symptoms started in service or are related to serving in the military." Because the examiner's rationale does not acknowledge and consider the Veteran's competent reporting as to the onset and history of his claimed back and neck disorders, the claims will be remanded for new VA medical opinions. 5. Entitlement to a TDIU. The Board's May 2018 order determined that the Veteran's June 2012 notice of disagreement raised the issue of entitlement to a TDIU, and the Board remanded that issue to the AOJ. In March 2019, the Veteran filed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A rating decision of November 2021 denied entitlement to a TDIU. A request for a TDIU is not a freestanding claim, but rather a component of either an initial service-connection claim or a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the issue of entitlement to a TDIU will be remanded as an aspect of the remanded service-connection issues. The matters are REMANDED for the following action: 1. In remanding these issues, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Undertake appropriate development to associate with the record any outstanding and identified private medical records that are pertinent to the remanded issues and any outstanding VA treatment records. All efforts to obtain such records should be documented in the electronic claims folder. 3. Obtain an opinion from an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder other than PTSD at any time since the Veteran's claim was filed in July 2010, even if now resolved, to include depression and anxiety. A new examination may be scheduled if needed to provide an adequate medical opinion. The clinician must opine as to whether any such psychiatric disorder(s) at least as likely as not: a. Is related to an in-service injury, disease, or event, to include the Veteran's account of the onset and history of his experienced psychiatric symptoms and any relevant events of his military service, to include a PTSD stressor statement in March 2009 that references psychiatric disorder and his service duty of loading gun tanks; b. Had its onset during active duty service; or c. Is caused or aggravated beyond its natural progression by a service-connected disability or by any other disorder. The clinician must identify all acquired psychiatric disorders other than PTSD that have been diagnosed at any time Veteran's claim was filed in July 2010, even if now resolved. If the Veteran's medical history indicates that the diagnosis of any mental disorder has changed, the clinician must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Notify the clinician that, as indicated in the Board's prior remand instructions of July 2020, the medical opinions to be provided may not be based solely on the absence of confirming, contemporaneous medical records, and a rationale must give consideration to the Veteran's statements, including as to recurrent symptoms and the contention (filing of September 2007) that his psychiatric disorder is related to his military occupational specialty of cannon crewman and witnessing in March 1969 the non-combat, accidental death of a one service member and severe injury to another service member during a training mission. Notify the clinician that the Veteran, as a layperson, is competent to attest to matters of first-hand knowledge gained through the senses, including observable symptomatology. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall explain why an opinion cannot be rendered. In so doing, the clinician 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 that particular question(s). A rationale is required for all opinions in the report. 4. Obtain an opinion from an appropriate clinician to determine the nature and etiology of any back disorder and any associated neuropathy at any time since the Veteran's claim was filed in July 2010, even if now resolved. A new examination may be scheduled if needed to provide an adequate medical opinion. The clinician must opine as to whether any such back disorder at least as likely as not: a. Is caused by an in-service injury, disease, or event, to include the Veteran's reports as to the onset and history of his experienced back symptoms, with consideration given to the Veteran's contentions that he injured himself from falling hard when rappelling off a high mountain (June 2012 statement), that he injured his spine when a sergeant stomped on the top of his head (June 2012 statement), that he damaged his spine when loading gun tanks as a "cannon crewman" as listed on his DD Form 214 (March 2012 statement), and that he injured his back during service due to jumping out of airplanes (June 2003 VA treatment record); b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service or the year following service. Notify the clinician that the Veteran, as a layperson, is competent to attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. 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 that particular question(s). A rationale is required for all opinions in the report. 5. Obtain an opinion from an appropriate clinician to determine the nature and etiology of any neck disorder and any associated neuropathy at any time since the Veteran's claim was filed in July 2010, even if now resolved. A new examination may be scheduled if needed to provide an adequate medical opinion. The clinician must opine as to whether any such neck (cervical spine) disorder at least as likely as not: a. Is caused by an in-service injury, disease, or event, to include the Veteran's reports as to the onset and history of his experienced symptoms, with consideration given to the Veteran's contentions that he injured himself from falling hard when rappelling off a high mountain (June 2012 statement), that he injured his spine when a sergeant stomped on the top of his head (June 2012 statement), that he damaged his spine when loading gun tanks as a "cannon crewman" as listed on his DD Form 214 (March 2012 statement), that he often was hit in the head as member of a boxing team during service (October 2003 VA treatment record), and that he injured his neck during service due to jumping out of airplanes (June 2003 VA treatment record); b. Had its inception during service; c. Manifested during active service or within one year after discharge from service; or d. Was noted during service or within one year after discharge from service such that the condition was not shown to be chronic at that time or a diagnosis of chronicity could be legitimately questioned, and there was a continuity of the same symptomatology since service or the year following service. Notify the clinician that the Veteran, as a layperson, is competent to attest to matters based on personal knowledge, not medical expertise, as they come to a person through his or her senses, including observable or experienced symptoms. Notify the clinician that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. 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 that particular question(s). (Continued on the next page) A rationale is required for all opinions in the report. 6. Readjudicate the remanded claims, including the issue of TDIU entitlement. If any benefit sought on appeal is not granted, the Veteran and his representative must 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. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.