Citation Nr: 21005512 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-09 462 DATE: February 1, 2021 ORDER Entitlement to service connection for traumatic brain injury (TBI) is denied. Entitlement to service connection for a seizure disorder is granted. Entitlement to total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The weight of the competent and credible evidence is against finding that the Veteran has or has had at any time during the appeal a TBI or residuals of a TBI. 2. The Veteran’s current seizure disorder is secondary to his service-connected major depressive disorder (MDD). 3. The Veteran’s service-connected disabilities preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI have not been met. 38 U.S.C. § 1101, 1110, 1154; 38 C.F.R. § 3.303, 3.304. 2. The criteria for service connection for a seizure disorder have been met. 38 U.S.C. § 1101, 1110, 1154; 38 C.F.R. § 3.303, 3.304, 3.310. 3. The criteria for the award of TDIU benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to January 1986. The Veteran’s claims were most recently remanded by the Board in February 2019. The claims have now returned to the Board for review. As such, the Board finds that the prior remand directives have been substantially complied with, and the matters are again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal service connection for major depressive disorder was granted in an April 2020 rating decision with an evaluation of 50 percent effective July 22, 2011. This represents a full grant of benefits sought on appeal as to this issue and as such this claim is no longer before the Board. With respect to the Veteran’s claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection 1. Entitlement to service connection for traumatic brain injury (TBI) To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. The question for the Board is whether the Veteran has TBI that began during service or is etiologically related to, or aggravated by, an in-service disease or injury. The Veteran contends that service connection is warranted for a TBI that is related to an in-service injury where he was hit by a jeep at Fort Campbell. The Veteran reports that a 5 ton truck backed up and pinned him between the truck and jeep, and he was unconscious for several hours. The Veteran reported a laceration and avulsion to his left ear, and he was hospitalized for 1 week and on light duty. The Veteran reports this in-service injury resulted in his current TBI and ongoing residuals. The Veteran is competent to describe his ongoing symptoms, in-service duties and the occurrence of ongoing symptoms since service, and to this extent, his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has TBI related to his military service. The Board concludes that the Veteran does not have a TBI or ongoing residuals of a TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McKinney v. McDonald, 28 Vet. App. 15 (2016); 38 C.F.R. § 3.303(a), (d). Under 38 U.S.C. § 1110, there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Herein, even if the Board considered the Veteran’s reports of ongoing seizures to broadly encompass general reports of pain, these are already contemplated by his seizure disorder, which is discussed in greater detail below. Here there is no functional limitation, relating to a TBI or any residuals of a TBI. Limitation relating to the Veteran’s now service-connected seizure disorder will be discussed below. Further, not all pain results in a disability, as in here, or rises to the level of impairment of working ability. An essential element of a claim for service connection is evidence of a current disability. The Veteran’s service treatment records (STRs) have been associated with the claims file. January 1982 STRs note the Veteran was seen for an injured forehead after a fight with a laceration and no loss of consciousness. An acute medical care note in May 1984 notes the Veteran was hit in the head by a vehicle with no loss of consciousness. Examination noted a laceration of the right ear and right eye and blood draining from the right ear and the lacerations were artificial. Examination noted no numbness or weakness. The Veteran was diagnosed with superficial lacerations, post-traumatic headaches and a cervical strain. Follow up was recommended in 3 days and the Veteran was recommended for light duty and to remain in his quarter for 72 hours. At separation in January 1986 on the report of medical examination neurologic and psychiatric clinical evaluation were normal. The question for the Board is whether the Veteran has a current TBI or residuals of a TBI, then if do, if such is related to an in-service, event, injury or illness. In an April 2015 VA examination the Veteran was found not to have a diagnosis of TBI. The examiner noted a review of the conflicting evidence of record, and noted that there is no diagnosis of a TBI. Examination noted a full twelve point review of systems was performed and is negative. The examiner concluded that the in-service injuries were not severe enough to allude to TBI. The examiner explained that the Veteran did not experience loss of consciousness (per in-service treatment records) or other indicators that the Veteran experienced a concussion, subsequent to any head injury. While the Veteran did experience a blow to the head, there was not a loss of consciousness or other indicator of concussion. There is no evidence of a TBI in the Veteran’s service record. The Veteran was provided a VA examination in March 2017. The examination report noted the Veteran with no diagnosis of TBI, and has not ever had a TBI or any residuals of a TBI. The examiner noted review of the Veteran’s statements regarding the in-service injury in 1986 while working on a jeep at Fort Campbell. The Veteran reports that a 5 ton truck backed up and pinned him between the truck and jeep, and he was unconscious for several hours. The Veteran reported a laceration and avulsion to his left ear, and he was hospitalized for 1 week and on light duty. STRs note the Veteran was seen in December 1985 for a headache after being hit in the head by a vehicle without loss of consciousness. Examination noted a laceration to the right ear and right temporal region. The Veteran was diagnosed with a superficial laceration to the right ear, post-traumatic headache and a cervical strain. He was not hospitalized. The examiner noted an assessment of cognitive impairment and other residuals of TBI noted no complaints of memory, attention, concentration or executive functions, normal judgment, routinely appropriate social interaction, always oriented to person, time, place and striation, normal motor activity, normal visual spatial orientation, no subjective symptoms, no neurobehavioral effects, able to communicate, normal consciousness and no residuals or pertinent physical findings. The examiner found that it is less likely than not that a TBI was incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that based on the claims folder, including injuries obtained during service, there is inadequate evidence to determine that the Veteran suffered a traumatic brain injury while in the military. A March 2019 VA opinion has also been associated with the claims file. The examiner found that there is no evidence of a traumatic brain injury in the Veteran’s service record. He did suffer a blow to the head, but according to treatment records at the time he did not suffer a loss of consciousness or other indicator of concussion. The examiner noted a review of the prior opinions and the Veteran’s STRs and ongoing treatment post-service. The examiner found that there is no evidence of a traumatic brain injury in the Veteran’s service record. As noted he suffered a blow to the head but treatment records at the time did not differ a loss of consciousness or other indicator of concussion. The examiner found no evidence of a TBI in-service. The examiner noted no residual conditions attributable to a brain injury impact the Veteran’s ability to work. The Board finds the VA examinations are entitled to probative weight as they provided a reasoned rationale, considered the Veteran’s statements and the evidence of record. The Board has considered the Veteran’s representative’s contentions in November 2020 and ongoing correspondence of record. Specifically, the Veteran’s representative contends the service connection is warranted for a TBI. The Board has considered the Veteran’s and his representative contentions however, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service or a service connected disability is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. The weight of the competent and credible evidence is against the Veteran’s claim for service connection for a TBI. While the Veteran believes that his symptoms and in-service events are indicative of an ongoing TBI and related to service, he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion diagnosing a TBI or residuals of a TBI disability, and linking current symptoms, if any, to an in-service injury or exposure, and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the medical evidence is more probative and credible than the lay opinions of record. The VA examinations consistently note no evidence of a TBI or residuals of a TBI and as such the more probative evidence of record indicates the Veteran does not have a TBI. Based on the foregoing, the Veteran does not have TBI for VA purposes. As explained above, the Veteran must have a disability at the time of the claim. Based on the given facts, the preponderance of the evidence is against a finding that the Veteran currently has TBI for VA purposes. Thus, service connection for such cannot be granted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to service connection for a seizure disorder A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 (a), (b). The question for the Board is whether the Veteran has a seizure disability that is caused or aggravated by a service-connected disability. During the course of the appeal the Veteran was service connected for major depressive disorder (MDD) The Board notes that there is both positive and negative evidence regarding service connection as to the Veteran’s claim. However, resolving reasonable doubt in the Veteran’s favor, the Board finds that the preponderance of the competent, credible, and probative evidence establishes that the Veteran’s seizure disability is proximately due to or the result of his service connected MDD. In a November 2020 private medical opinion, the examiner concluded that it is at least likely as not that the Veteran’s service connected MDD has proximately caused and continued to aggravate the Veteran’s seizure disorder. The examiner’s conclusion is based on the claims folder, an examination of the Veteran, and medical literature which supports a link between psychological stress and seizures. The examiner explained that after interviewing the Veteran and going the treatment records that the onset of the Veteran’s seizures occurs when stressed and suffering from mental health symptoms. In light of the Veteran’s diagnoses, the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for seizure disorder and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran’s claim for service connection for seizure disorder is granted. 3. Entitlement to total disability based on individual unemployability (TDIU) Legal Criteria VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the scheduler rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the Veteran’s current combined evaluation for compensation purposes is 70 percent. The Veteran is currently service connected for major depressive disorder rated as 50 percent disabling and tension headaches rated as 30 percent disabling. Herein, the Board has also granted service connection for a seizure disorder. Analysis Social Security Administration (SSA) records have been associated with the claims file. The Veteran has been in receipt of SSA disability benefits since October 2009 in part for affective/mood disorders. Treatment records note the Veteran previously worked as a cook but had to stop due to his ongoing mental health symptomology and seizures. An April 2017 private assessment reflects that the Veteran’s service-connected MDD prevents the Veteran from sustaining employment. Further, medical records reflect that the Veteran’s service-connected tension headaches impacts his ability to work, as it would require the Veteran to miss at least three days per month from work due headaches. (See July 2017 Disability Benefits Questionnaire). Treatment records consistently note that the Veteran’s seizure disorder is not well maintained at times and he regularly experiences approximately 2 seizures a week with ongoing symptomology. In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities. The medical evidence reflects the Veteran’s service-connected disabilities including his major depressive disorder, headaches and seizure disorder have impacted his ability to maintain employment. The Board notes that there is both positive and negative evidence to support the Veteran’s claim. However, resolving reasonable doubt, the Board finds a grant of TDIU is warranted. As all doubt is resolved in favor of the Veteran, the Board finds that the evidence is at least in equipoise to support a finding of a TDIU. 38 U.S.C. § 5107. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.