Citation Nr: 21006198 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 09-16 412 DATE: February 3, 2021 ORDER Entitlement to service connection for residuals of head trauma and stroke, to include as secondary to the service-connected residuals of a left knee injury, status post partial medial meniscectomy, is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to the service-connected disabilities (TDIU), to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran’s residuals of head trauma and stroke were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury or disease; and, residuals of head trauma and stroke are not shown to be proximately due to or aggravated by the service-connected residuals of a left knee injury, status post partial medial meniscectomy. CONCLUSION OF LAW The criteria for service connection for residuals of head trauma and stroke, to include as secondary to the service-connected residuals of a left knee injury, status post partial medial meniscectomy, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1983 to March 1988. These matters are on appeal from December 2008 and August 2010 rating decisions. In February 2016, the Veteran testified before the undersigned. In May 2016, January 2018, November 2019, and September 2020, the Board of Veterans’ Appeals (Board) remanded the appeal for additional evidentiary development. Entitlement to service connection for residuals of head trauma and stroke, to include as secondary to the service-connected residuals of a left knee injury, status post partial medial meniscectomy. In May 2015, the Veteran’s representative asserted that strokes are a well-known side effect of nonsteroidal anti-inflammatory drugs (NSAIDs). The representative elaborated that the Veteran takes NSAIDs to treat her service-connected left knee disability, and as a result, she is entitled to service connection for strokes on a secondary basis. Subsequently, in February 2016, the Veteran testified that she has residuals of head trauma that are caused by her in-service head injury. To establish direct service connection, 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). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for brain hemorrhage and brain thrombosis, if the disability is manifest 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 showing of a 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.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted above, the first element of direct and secondary service connection requires evidence of a current disability. The Board notes that the Veteran contends that she has a diagnosis for traumatic brain injury or residuals of a head injury. As will be discussed in greater detail below, the Board finds that the Veteran does not have a diagnosis of traumatic brain injury or residuals of a head injury. However, she has had 3 cerebrovascular accidents (strokes). See May 2019 VA examination Report. A current diagnosis has been established. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of direct service connection requires evidence of in-service incurrence or aggravation of an injury or disease. In November 1987, the Veteran was treated for headaches, blurred vision, and a left earache after hitting her head in a car accident during service. Therefore, the Veteran has satisfied the second element of direct service connection. The second element of secondary service connection requires evidence of a service-connected disability. Here, the Veteran is currently service connected for residuals of left knee injury, status post partial medial meniscectomy. Thus, the Veteran has satisfied the second element of secondary service connection. The only issue before the Board is whether the Veteran has satisfied the nexus element under a theory of direct service connection or secondary service connection. Direct service connection requires evidence of a nexus between the current disease and the in-service disease or injury. Secondary service connection requires nexus evidence establishing a connection between the service-connected disability and the current disorder. In September 2012, the Veteran was afforded a VA examination to determine the nature and etiology of her claimed traumatic brain injury. The Veteran reported that she sustained a head injury during the in-service car accident. She was treated at the Army clinic and released. The Veteran denied exposure to any blasts. Each of the 10 facets of traumatic brain injury related cognitive impairment were evaluated as normal. The VA examiner concluded that the Veteran did not have a current diagnosis for traumatic brain injury. He opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner’s rationale was that the Veteran did not have cognitive impairment and therefore, she did not have a diagnosis of traumatic brain injury. In May 2019, the Veteran was afforded a traumatic brain injury examination and a central nervous system examination. The traumatic brain injury examination report indicates that the Veteran had left leg weakness secondary to stroke, but did not have a diagnosis for a traumatic brain injury. The central nervous system examination shows that the Veteran had three strokes. Her first stroke was in 1998 and her most recent stroke was in 2005. The 2005 stroke affected her speech and memory. Her condition was progressively worse. She also had left arm and leg weakness attributable to her strokes. He opined that the Veteran’s strokes were less likely than not incurred in or caused by her in-service head trauma. She did not meet the diagnostic criteria for traumatic brain injury and strokes are not caused by head trauma. The Veteran’s memory loss was attributable to her strokes rather than her in-service head trauma. The VA examiner opined that the Veteran’s stroke residuals were less likely than not proximately due to or the result of her service-connected left knee disability. He reiterated that the Veteran did not meet the diagnostic criteria for traumatic brain injury and that memory loss was attributable to strokes rather than any medication taken to treat the Veteran’s service-connected left knee injury. The VA examiner conceded that there was a correlation between NSAIDs and stroke. He explained that there was a lack of evidence to suggest a causative factor between NSAIDs and stroke. The VA examiner concluded that residuals of stroke were not aggravated beyond their natural progression by the Veteran’s service-connected knee disability. His rationale was based upon a causal relationship between NSAIDs and stroke. In December 2019, VA obtained an addendum opinion regarding the etiology of the Veteran’s residuals of stroke. The VA examiner essentially restated his May 2019 opinion. In September 2020, VA obtained its most recent medical opinion regarding the etiology of the Veteran’s residuals of stroke. The VA examiner opined that the Veteran’s residuals of stroke were less likely than not caused by her in-service head trauma. The examiner elaborated that traumatic brain injury can cause a stroke due to blood vessel damage in the brain. However, the evidence of record did not indicate the Veteran had a traumatic brain injury. The VA examiner explained that residuals of stroke were identified in 2015 after her 2013 stroke. The medical record indicated that the November 2013 stroke was caused by a hypercoagulable state leading to recurrent storks and interruption of medication used to treat hypercoagulable state. The Veteran’s residuals of a stroke may have also been caused, in part, by her cocaine use. The VA examiner opined that the Veteran’s residuals of stroke were less likely than not proximately due to or caused by the medication she takes to treat her service-connected left knee disability. The Veteran took NSAIDs and tramadol for her service-connected left knee disability. The VA examiner summarized a recent medical study that was unable to show a causal relationship between NSAID use and stroke. Stroke is not listed as a side effect for tramadol. The medical record indicated that the Veteran’s pain medication use was sporadic. The VA examiner reiterated that the most likely causes for the Veteran’s stroke were her hypercoagulable state, medication non-adherence, and cocaine use. Finally, the VA examiner opined that the Veteran’s residuals of stroke were less likely than not aggravated by the medication the Veteran takes to treat her service-connected left knee disability. She explained that the Veteran’s use of pain medication was intermittent. There was no medical evidence to suggest that NSAID and tramadol worsen stroke residuals or cause strokes. There are no positive medical opinions of record supporting a grant of service connection under a direct theory of entitlement or under a theory of secondary service connection. The Board finds that the September 2020 VA addendum opinion is highly probative because it is based on a review of the record, consideration of the Veteran’s contentions, a review of the relevant medical literature, and the VA examiner’s medical expertise. The opinion is supported by clear rationale that is buttressed by citations to relevant medical literature. As a result, the Board finds the conclusion that the Veteran’s residuals of stroke were most likely caused by her hypercoagulable state, medication non-adherence and cocaine use to be highly probative. The opinion is probative on the issue of entitlement to service connection under a theory of direct service connection and the issue of entitlement to service connection based on the causation element of secondary service connection. Lastly, the VA examiner’s opinion that the Veteran’s residuals of stroke were not aggravated by the medication used to treat her service-connected disability is supported by sufficient rationale. The examiner referenced relevant medical literature and applied those findings to the Veteran’s specific usage of medication used to treat her left knee disability. The opinion is probative on the issue of entitlement to service connection based on the aggravation element of secondary service connection. The Veteran’s first stroke was in 1998. Again, the Veteran’s active service ended in 1988. There is no evidence that the Veteran developed brain hemorrhage or brain thrombosis within one year of her separation from active service. The Veteran is not entitled to direct service connection for this claim based on continuity of symptomatology since the first manifestations of stroke occurred 10 years after her separation from active service. Therefore, presumptive service connection, and service connection based on continuity of symptomatology, is not warranted for this claim. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which she has first-hand knowledge, e.g., an injury during her active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Regarding direct service connection, the Veteran is competent and credible to assert that she injured her head in an in-service motor vehicle accident. However, she is not competent to assert that her in-service injury caused a traumatic brain injury or her recurrent strokes. These matters are medically complex and fall outside of the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377 n.4. As a layperson, it is not shown that she possesses the medical expertise to provide such an opinion. Her lay statements are probatively outweighed by the diagnostic testing and medical opinions of record, which indicate that she does not have a traumatic brain injury and that her strokes are unrelated to her in-service motor vehicle accident. Furthermore, the December 2020 medical opinion explicitly considered her contentions and included sufficient rationale against the theory of direct service connection. Regarding secondary service connection, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (whether her residuals of stroke are caused or aggravated by the medication she takes to treat her service-connected left knee disability) falls outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377 n.4. As a layperson, it is not shown that she possesses the medical expertise to provide such an opinion. There are no competent medical opinions linking her residuals of stroke to the medications she takes to treat her service-connected left knee disability. The VA examiner considered the Veteran’s lay assertions, but ultimately found that the Veteran’s current residuals of stroke were most likely caused by her hypercoagulable state, medication non-adherence, and cocaine use, and were not caused or aggravated by the medication she takes to treat her service-connected left knee disability. Service connection for residuals of head trauma and stroke, to include as secondary to the service-connected residuals of a left knee injury, status post partial medial meniscectomy, is denied. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS FOR REMAND Entitlement to a TDIU, to include on an extraschedular basis, is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, the Veteran was last examined in January 2013 for her service-connected posttraumatic stress disorder (PTSD). The Veteran’s VA treatment records document that she was recently hospitalized in a psychiatric hospital, which suggests a worsening of her service-connected disability and possibly her employability. Based upon the forgoing, a remand is required to afford the Veteran a contemporaneous VA examination and to refer the TDIU claim to VA’s Director of Compensation Service for extraschedular consideration.   The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician regarding the current severity of her PTSD. The examiner should elicit from the Veteran her complete educational, vocational, and employment history and should note her complaints regarding the impact of PTSD on employment. The examiner should also identify all limitations or functional impairment caused solely by the service-connected PTSD. 2. Refer the Veteran’s claim for a TDIU to VA’s Director of Compensation Service for extraschedular consideration. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.