Citation Nr: 21077627 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-52 196 DATE: December 30, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for left ear hearing loss is reopened. Entitlement to service connection for headaches is granted. Entitlement to service connection for residuals of traumatic brain injury (TBI), to include dizziness, fatigue, and memory loss, is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for generalized joint pain is remanded. Entitlement to service connection for neuropathy is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An October 1992 rating decision denied service connection for bilateral hearing loss. The Veteran did not appeal and no new and material evidence was submitted within one year of the October 1992 rating decision. 2. At the time of the October 1992 rating decision, the record did not contain evidence showing a nexus to service. Subsequent to that decision, the Veteran was afforded additional examinations. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. The Veteran's headaches started during active service and continued to present. 4. The Veteran's residuals of TBI, to include dizziness, fatigue, and memory loss are at least as likely as not related to a TBI sustained in service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. 2. The criteria to establish service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for residuals of a traumatic brain injury (TBI), to include dizziness, fatigue, and memory loss, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to April 1992, including overseas service in Southwest Asia. See March 2017 correspondence. The Veteran appeals December 2013 and August 2017 rating decisions by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in August 2021. A transcript is of record. A veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Headaches The Veteran has headaches. See June 2017 examination report. The Veteran was treated for headaches during active service. See February 1990 and October 1991 service treatment records (STRs). The Veteran stated that his headaches started during service and continued to present. See August 2021 Board Hearing Tr. at 14. The Veteran is competent to attest to the existence of headaches since service. The Board finds the Veteran's assertions credible. The June 2017 examination report noted an onset date during service. The Board finds that the evidence is at least in equipoise as to whether the Veteran's headaches had their onset in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's headaches originated during service and continued to present. Accordingly, service connection for headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Residuals of TBI During the period on appeal, the Veteran has variously claimed, and the issues have been characterized as, dizziness, fatigue, and memory issues. See January 2013 VA Form 21-526; October 2017 supplemental statement of the case (SSOC). The Veteran is competent to attest to the existence of such symptoms of dizziness, fatigue, and memory issues. The Board finds the Veteran's assertions credible. The June 2017 examination report regarding TBI noted the Veteran was smacked in his helmeted head while in a tank. The Veteran stated that he served aboard tanks during service and his military occupational specialty (MOS) was armor crewman. See June 1992 Veteran statement; April 1992 DD Form 214. The Veteran suffered from dizziness during service. See February 1990 STRs. The May 2013 examination report noted the Veteran's statement that his cognitive problems first began upon returning home from deployment. The Veteran testified that his various symptoms started during service. See August 2021 Board Hearing Tr. at 10, 12, 19. Dr. C.B.'s September 2013 opinion noted the Veteran was subject to many explosions during service, to include tank fire, which were concussive events that resulted in symptoms as dizziness and memory loss. Dr. C.B. found the Veteran's dizziness and memory loss problems are due to in-service exposure to concussion blasts and that the Veteran likely had a TBI while in-service due to artillery and tank cannon fire. Dr. C.B. also evaluated the Veteran to have residual symptoms as fatigue, lethargy, and communication issues. The Board finds Dr. C.B.'s opinion probative. Based on Dr. C.B.'s opinion and the accompanying symptoms he described, the Board finds the Veteran's claimed and alleged symptoms, to include the issues of dizziness, fatigue, and memory issues noted in the October 2017 SSOC, can most appropriately be categorized as being residual symptoms of his in-service TBI. These symptoms were specifically listed and found related to the Veteran's TBI. The Board finds that the evidence is at least in equipoise as to whether the Veteran had a TBI during active service. The Veteran has consistently stated his symptoms started during service, the Veteran worked with tanks and was therefore likely exposed to tank blasts from a close proximity, and a medical provider has found a nexus between the Veteran's symptoms and in-service TBI due to tank blasts. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran had a TBI during service due to tank blasts, which resulted in the claimed residual symptoms. Accordingly, service connection for residuals of TBI, to include dizziness, fatigue, and memory loss, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Left Ear Hearing Loss The Veteran is currently service connected for right ear hearing loss. The Veteran was denied entitlement to left ear hearing loss because he did not meet the required thresholds regarding hearing loss for VA compensation purposes. See May 2013 and June 2017 examination reports. The Veteran stated that his hearing has worsened since his last examination. See August 2021 Board Hearing Tr. at 3. The Board finds remand is required to afford the Veteran an opportunity for a new examination to determine whether the Veteran currently has hearing loss for VA compensation purposes during the period on appeal. 2. Joint Pain The Veteran noted swollen and painful joints on his separation examination. See March 1992 STRs. The Veteran is noted to have joint pain throughout his body, to include his hips, knees, elbows, shoulders, fingertips, and back. See February 2016 DRO Hearing Tr. at 38; July 2017 examination reports; August 2021 Board Hearing Tr. at 4-7. The Veteran stated he had joint pain during service which continued to present. See August 2021 Board Hearing Tr. at 4-5. Dr. C.B.'s September 2013 opinion found the Veteran's joint issues are likely due to his time in service. However, Dr. C.B. did not identify which exact joints and noted an evaluation by a rheumatologist would be necessary before commenting on the inception of the Veteran's joint issues. Dr. C.B.'s opinion did not provide specific details and did not include any rationale in its conclusory nexus statement. As such, Dr. C.B.'s opinion is not adequate or probative in determining the nexus of the Veteran's joint issues. The July 2017 opinion regarding hips and knees noted a car accident in January 2016 and that weight gain if a likely cause of the pain. Therefore, a negative nexus to service was found. However, the Board notes that the Veteran has claimed joint pain prior to his car accident. See January 2013 VA Form 21-526. Furthermore, regarding the knees, the July 2017 examination report noted jumping off of vehicles during service. This was not addressed in the opinions. As such, the July 2017 opinions are not adequate as they do not account for all theories of entitlement and contentions. Importantly, weight gain was raised by the examiner. As such, whether obesity is an intermediate step between disabilities should be considered. Overall, the record does not include adequate examinations and opinions that determine the nature and location of all the joints the Veteran has pain in, whether there is a diagnosed condition in those joints, and whether such joints are due to service or obesity as an intermediate step. Therefore, remand is required for examinations and etiology opinions. 3. Neuropathy The Veteran stated he had neuropathy during service which continued to present. See August 2021 Board Hearing Tr. at 16-18. Dr. C.B.'s September opinion noted neuropathy in all four extremities. Dr. C.B. noted exposure to sarin gas while the Veteran served in Khamisiyah and that he developed peripheral neuropathy since that exposure. The Veteran submitted correspondence in July 1997 noting possible exposure to sarin gas in Khamisiyah in March 1991. However, the correspondence was not noted to be addressed to the Veteran and seemed to be a general advisory letter. The Veteran served in Southwest Asia in December 1990 to April 1991. See April 1992 DD Form 214. However, April 2017 correspondence by the Defense Health Agency (DHA) noted the Veteran's unit was not deployed near Khamisiyah. As such, the record is unclear as to whether the Veteran was exposed to sarin gas and finds further development is required. Treatment records indicate the Veteran's neuropathy may be related to his diabetes. The Veteran is not service connected for diabetes. However, the May 2013 examination report also noted the Veteran's neuropathy is related to "DDD." This would reference the Veteran's back condition. The Veteran is not currently service connected for a back condition. However, the Veteran's back condition is encompassed in his joint pain complaints which is being remanded. The Veteran also noted that his neuropathy is due to pyridostigmine bromide (PB) tablets, burning oil wells, VX gas, and petrochemicals while working on vehicles. See May 2013 correspondence. However, all these theories of entitlement and contentions have not been addressed in an opinion. As such, remand is required for another opinion to determine the nature and etiology of the Veteran's neuropathy. 4. Insomnia The Board notes that pursuant to this decision the Veteran is service connection for residuals of TBI with fatigue being a residual symptom. The Veteran is also service connected for asthma and obstructive sleep apnea. The November 2017 examination report regarding sleep apnea noted reports of insomnia and restless sleep as a symptom of sleep apnea. May 2017 psychological treatment records noted the presence of insomnia. The Veteran is not service connected for a psychological disorder. The Veteran stated he has had insomnia since service. See August 2021 Board Hearing Tr. at 12. June 2013 treatment records evaluated insomnia and fatigue together. Overall, the record is unclear whether the Veteran has a separate diagnosis of a condition manifested by insomnia, whether such a separate diagnosis of insomnia is related to service or the Veteran's service connected sleep apnea or TBI, or that the Veteran's insomnia is simply a symptom associated with sleep apnea or TBI. Therefore, remand is required for an opinion to determine the nature and etiology of the Veteran's insomnia. 5. GERD The Veteran testified that he throws up in his sleep, has indigestion, loose stools, bleeding, heartburn, and pain, and also went to the hospital for GERD symptoms in the last year. See August 2021 Board Hearing Tr. at 25-26. The Veteran's last examination regarding his esophageal condition was conducted in July 2017. Based on the above report of symptoms, the Board finds that the Veteran's condition has worsened since his last examination. Where a Veteran contends that a disability has worsened since his last examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). As such, the Board finds that a new examination is required to assess the current severity of the Veteran's GERD. 6. TDIU Pursuant to this decision, the Board has granted service connection for various conditions as noted above. These conditions have yet to be rated by the AOJ. As the initial rating assigned for these conditions could significantly impact the outcome of the TDIU claim, the Board must defer adjudication of the TDIU claim until after the AOJ has had the opportunity to assign an initial rating for the disabilities the Board has service connected herein. The matters are REMANDED for the following action: 1. Assign an initial rating for the Veteran's headaches and TBI. 2. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left ear hearing loss, joint pain, neuropathy, insomnia, and GERD that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 3. Obtain records and information from the current Records Management and Declassification Agency's (RMDA) records research repository, the National Personnel Records Center (NPRC), or any other appropriate records repository to determine whether the Veteran's unit was stationed in or around Khamisiyah around March 1991 and if he was exposed to ceratin chemicals, to include sarin and VX gasses. 4. After the development in #2-#3 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his left ear hearing loss. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran's left ear hearing loss was incurred in, or otherwise related, to his time on active service? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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). 5. After the development in #2-#3 above is completed, schedule the Veteran for an examination to determine the nature and etiology of his joint pain. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner should identify all joint pain and related conditions present, to include pain in the hips, knees, elbows, shoulders, fingertips, and back. If any symptoms are not attributable to a diagnosis, any functional loss due to joint pain should be described. Then, for each identified joint pain condition and/or functional loss present, the examiner is asked to respond to the following inquiries: Does the Veteran have fibromyalgia? If yes, Does fibromyalgia account for all of the Veteran's various complaints of joint pain in the noted locations? If not, what are the specific symptoms of fibromyalgia and what specific joints does it affect? If no, Is it at least as likely as not that any such joint pain and/or joint functional loss had its clinical onset during active service or is related to any in-service disease, event, or injury, to include exposure to any environmental hazards while deployed in Southwest Asia, or potential exposure to other chemicals (to include sarin gas, VX gas, PB tablets, and petrochemicals), or jumping off of tanks and general wear and tear of service? If a joint condition is diagnosed, is the etiology OR pathophysiology of the condition not conclusive as to this particular Veteran? Is it at least as likely as not that the Veteran's service-connected conditions (a) CAUSED the Veteran to become obese, (b) the obesity was a substantial factor in causing the Veteran's joint pain and/or joint functional loss, AND (c) the joint pain and/or joint functional loss would not have occurred but for obesity caused by his service-connected conditions? Is it at least as likely as not that the Veteran's service-connected conditions (a) AGGRAVATED the Veteran's obesity, (b) the obesity was a substantial factor in causing joint pain and/or joint functional loss, AND (c) the joint pain and/or joint functional loss would not have occurred but for obesity caused by his service-connected conditions? The Board notes that regarding obesity, if the examiner finds specific joints service connected on a direct basis, then those joint conditions should be considered in analyzing obesity and secondary nexus for the other joints. For example, if the examiner finds knee joint pain service connected on a direct basis, but does not find hip pain service connected on a direct basis, then the examiner should consider whether the Veteran's knee joint pain contributed to obesity, and then secondarily caused hip joint pain. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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). 6. After the development in #2-#3 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's neuropathy. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician should identify all extremities impacted by the Veteran's neuropathy. Then, for each identified extremity, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's neuropathy had its clinical onset during active service or is related to any in-service disease, event, or injury, to include exposure to any environmental hazards while deployed in Southwest Asia, or potential exposure to other chemicals (to include sarin gas, VX gas, PB tablets, and petrochemicals), or jumping off of tanks and general wear and tear of service? If neuropathy is diagnosed, is the etiology OR pathophysiology of the condition not conclusive as to this particular Veteran? Is it at least as likely as not that the Veteran's neuropathy was CAUSED by his back condition? Is it at least as likely as not that the Veteran's neuropathy was AGGRAVATED by his back condition? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must 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). 7. After the development in #2-#3 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's insomnia. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Does the Veteran have a separate diagnosis of a condition manifested by insomnia? If no, What diagnosis can the Veteran's reported insomnia symptoms be attributed to, to include TBI with fatigue and/or asthma with sleep apnea? If the Veteran's symptoms cannot be attributed to a known diagnosis, Is it at least as likely as not that the Veteran's insomnia related symptoms and functional loss, was incurred in, or otherwise related, to his time on active service, to include, but not limited to, exposure to any environmental hazards while deployed in Southwest Asia, or potential exposure to other chemicals (to include sarin gas, VX gas, PB tablets, and petrochemicals)? If yes, Is the Veteran's insomnia a residual of another diagnosed condition, to include TBI or asthma and sleep apnea? If no, Is it at least as likely as not that insomnia had its clinical onset during active service or is related to any in-service disease, event, or injury, to include exposure to any environmental hazards while deployed in Southwest Asia, or potential exposure to other chemicals (to include sarin gas, VX gas, PB tablets, and petrochemicals)? Is the etiology OR pathophysiology of the condition not conclusive as to this particular Veteran? Is it at least as likely as not that the Veteran's insomnia was CAUSED by his service-connected asthma and/or sleep apnea? Is it at least as likely as not that the Veteran's insomnia was AGGRAVATED by his service-connected asthma and/or sleep apnea? Is it at least as likely as not that the Veteran's insomnia was CAUSED by his service-connected TBI? Is it at least as likely as not that the Veteran's insomnia was AGGRAVATED by his service-connected TBI? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must 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). 8. After the development in #2-#3 above is completed, schedule the Veteran for an examination to determine the current severity of his service-connected GERD. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. (Continued on the next page) 9. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a SSOC, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.