Citation Nr: 21011325 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-32 582 DATE: March 1, 2021 REMANDED Entitlement to service connection for cognitive disorder, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs Regional Office (RO). In November 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The claim for entitlement to service connection for the residuals of a traumatic brain injury (TBI) was remanded in January 2020 for further development. All VA records dated since 1971 were sought, as well as a VA medical opinion. The VA examiner was instructed to determine the nature and etiology of any TBI residuals. The Veteran was sent a Subsequent Development letter in February 2020, asking him to identify records so that they might be requested and associated with his claim. A Standard 5103 Notice requesting the same was sent to the Veteran in December 2020. VA did not receive a response to either correspondence; however, in September 2020 the Veteran requested the appeal be returned to the Board. The Board further notes that in May 2007, it was determined that VA records dated from 1970 to 1990 were unable to be found even after a thorough search of the VA Record Center and Vault for any archived records. The requested VA examination and medical opinion were obtained in July 2020 and have been associated with the claims file. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Following the July 2020 VA examination, service connection for cervicogenic headaches was granted in a September 2020 rating decision. As will be discussed below, the Board has recharacterized the Veteran’s claim to more accurately reflect his intentions. Entitlement to service connection for cognitive disorder, to include a secondary to service-connected disability, is remanded. The Veteran seeks entitlement to service connection for a cognitive disorder. Specifically, the Veteran asserts that he sustained multiple TBIs during service. At a November 2019 hearing before the undersigned, the Veteran testified to being in three helicopter crashes, multiple “hard” helicopter landings, and mortar and rocket attacks, resulting in numerous blows to the head over 600 hours of combat flight. See November 2019 Hearing Transcript, pages 3, 4, 6. The Veteran reported going to VA in the early 1970s for headache treatment. Currently, the Veteran endorses being unable to write, spell, or identify things, and he also relates having difficulty finding words when communicating. Id., page 15. At the outset, the Board notes the Veteran has been diagnosed with a cognitive disorder. During an April 2012 VA neuropsychological assessment, the Veteran was observed to meet the diagnostic criteria for cognitive disorder, as his performance during testing was suggestive of cognitive decline in verbal memory and executive functioning. The medical provider considered that the Veteran’s history of both remote and recent TBI, psychological conditions, chronic pain, and lack of sleep cumulatively explained his cognitive symptoms. Regarding the second element of service connection, evidence of in-service event, the Veteran submitted an incident report to support his involvement in a June 1968 helicopter crash. The incident report named the Veteran as a crew member, confirming that he was involved in at least one helicopter crash. The Veteran noted that he was flying in the crew chief seat at the time. See January 1981 Military Personnel Record. Further, some of his fellow servicemen submitted buddy statements attesting to the Veteran’s helicopter crashes. Two servicemen reported having personal knowledge of the Veteran’s involvement in two helicopter crashes, and one wrote that while in Vietnam, he heard the Veteran was shot down three times. See February 2015 (KAR), May 2014 (RES), and May 2014 (RR) Buddy / Lay Statements. Regarding the lack of concrete documentation for the Veteran’s involvement in more than one crash, one serviceman related that, due to recordkeeping practices, some aircraft crashes were officially called hard landings and never listed in a crash report. He also reported that the only record of aircraft crews, a form 2408-12, is only maintained for 6 months. See May 2014 (RES) Buddy / Lay Statement. To further support the Veteran’s claim of an in-service incurrence of TBI, he submitted award documentation to support the number of hours he spent in flight. Specifically, he was awarded the Air Medal, the National Defense Service Medal, the Vietnam Service Medal with 2 bronze service stars, the Republic of Vietnam Campaign Ribbon with Device (1960), the Expert Badge with Rifle Bar, and the Parachutist Badge – Basic. See August 2019 Military Personnel Record, page 5. His fellow servicemembers also wrote statements corroborating his claim of hundreds of hours of combat flight. Two reported that they would fly for 12-14 hours daily during missions with the Veteran. See January 2020 (RR) and January 1981 (HS) Buddy / Lay Statements. Furthermore, one serviceman attested to supervising recordkeeping on pilot and aircraft flight hours and reported that the Veteran had over 700 combat hours. See February 2015 (KAR) Buddy / Lay Statement. Finally, two of the Veteran’s fellow servicemen reported being with the Veteran when their position came under intense mortar and rocket fire in April 1968. See January 1981 (DPK) Buddy / Lay Statement and March 2003 Correspondence. Turning to the Veteran’s service treatment records (STRs), at a November 1966 military screening, the Veteran’s neurological evaluation was normal. See July 2014 STR page 9. The service treatment records do not otherwise mention head trauma of any kind. Moving to the Veteran’s post-service medical history, the earliest mention of a neurological complaint was when the Veteran complained of facial numbness during a May 1975 exam at VA. See May 1981 Medical Treatment Record – Government Facility, pages 3, 4. In October 1977 the Veteran suffered blows to the back, shoulders, and neck during a post-service assault; however, the Veteran denied loss of consciousness in the accident report. See June 1981 Medical Treatment Record - Non-Government Facility, page 14. The Veteran saw a private physician in December 1979, complaining of generalized weakness, fatigability, and right-sided neck and head pains; however, a recent neurological exam had revealed unremarkable results, and the Veteran’s symptoms were attributed to tension. See June 1981 Medical Treatment Record - Non-Government Facility, page 42. While visiting a private physician in November 1980, the Veteran reported frequently needing to grope for words and experiencing mental block. See September 2003 Medical Treatment Record - Non-Government Facility, page 1. At a January 1981 VA examination, the Veteran claimed to be suffering from headaches. His medical history was noted to include a private brain scan, which was negative. See January 1981 VA Examination. A June 1981 correspondence from a private facility listed one of the Veteran’s diagnoses as multiple subjective symptoms of a seemingly neurologic nature. See June 1981 Third Party Correspondence. An April 2002 private CT scan of the Veteran’s brain was unremarkable. See January 1981 Medical Treatment Record - Non-Government Facility, page 23. During a May 2002 private emergency room visit, the Veteran complained of persistent headaches and blurry vision; however, a CAT scan did not reveal anything remarkable. See September 2003 Medical Treatment Record - Non-Government Facility, page 7. VA treatment records reflect that in May 2003 the Veteran had a CT brain scan revealing normal results. See June 2007 Medical Treatment Record - Government Facility, page 46. At an October 2008 VA emergency room visit, the Veteran complained of blurred vision, headache, and dizziness lasting a month. The treating physician speculated that these symptoms may have been due to hypertension, positional vertigo, or hyperlipidemia. See July 2009 Medical Treatment Record - Government Facility. VA treatment records show that a September 2010 brain MRI revealed nothing significant. See May 2013 CAPRI, page 67. At a January 2011 VA cognitive and linguistic screening, the Veteran reported that his poor memory ability began after a May 2010 assault. See April 2014 CAPRI, page 100. The Veteran reported having been struck on the head in 2010 by a blunt object, and possibly losing consciousness for three hours. He said he felt cloudy and lethargic afterwards, and experienced low-grade headaches. However, following a normal MRA of the Veteran’s brain, the treating physician opined that there was a strong correlation between the Veteran’s memory deficits, his PTSD, and poor sleep. Another VA neurological evaluation, the following June, also attributed the Veteran’s cognitive symptoms to his psychiatric conditions. See December 2011 Medical Treatment Record - Government Facility, pages 49, 53, 54. During a September 2014 VA neurology appointment, the Veteran was noted to have suffered a TBI in November 2011 after falling and hitting his head on concrete. See November 2014 CAPRI, page 123. During an April 2012 VA neuropsychological assessment, the Veteran was observed to meet the diagnostic criteria for cognitive disorder, as his performance during testing was suggestive of cognitive decline in verbal memory and executive functioning. The medical provider considered that the Veteran’s history of both remote and recent TBI, psychological conditions, chronic pain, and lack of sleep cumulatively explained his cognitive symptoms. See July 2020 C&P Exam. A May 2012 VA brain scan revealed mildly decreased neural activity, possibly consistent with dementia. See May 2013 CAPRI, page 58. During an October 2012 VA neurobehavioral visit, the attending physician opined that though the Veteran’s cognitive decline was thought to be primarily caused by ongoing psychiatric conditions, sleep apnea, and TBI, other causes could not be conclusively ruled out. See November 2014 CAPRI, page 349. In an August 2013 VA medical note, the physician noted that the Veteran possibly had mild cognitive impairment due to his risk factors of sleep apnea, transient ischemic attack, TBI, family history of dementia, and microvascular disease. The physician felt that the Veteran’s memory deficits appeared to be minimal and subjective in nature; however, they also raised the possibility of chronic traumatic encephalopathy. See September 2013 CAPRI, page 18. In October 2013 the Veteran underwent a brain MRI at a VA facility, which revealed mild bifrontal volume loss but no evidence of significant atrophy. The MRI was otherwise unremarkable. See November 2014 CAPRI, page 124. During a VA neurological visit, the Veteran scored slightly below normal on cognitive tests. The doctor indicated that it was unclear whether this was a result of PTSD, or psychiatric conditions in combination with TBI, valium use, cerebrovascular disease, subtle seizures, and sleep apnea. See September 2014 CAPRI, page 15. The Veteran was given a VA cognitive assessment in July 2015, which found that the Veteran’s scores had improved since his TBI. See April 2019 CAPRI, page 429. At a November 2015 VA primary care visit, the resident noted that the Veteran had cognitive impairment due to a frontal lobe dysfunction, secondary to TBI. See January 2016 CAPRI, page 49. In September 2016 a VA psychiatrist, Dr. W, submitted a letter noting the Veteran’s history of whipsaw motions of his head and neck, hard landings, and crashes while serving as a helicopter crew chief. The same psychiatrist submitted another letter in October 2019, reporting that the Veteran had been discussing subjective memory loss for five years. See November 2019 and November 2019 Medical Treatment Records - Government Facility. The Veteran attended a September 2018 VA neurobehavioral consult, complaining of cognitive decline and word-finding difficulty. He was noted to have had a bad concussion in 2010. His history also reported three military helicopter crashes with head trauma, an unconfirmed possible stroke before 2013, and an incident in which the Veteran injured his head after falling off a stool. See October 2018 CAPRI, pages 15, 16, 19. In November 2018, the Veteran underwent a brain scan which revealed low metabolic activity, possibly indicating dementia. See July 2020 C&P Exam. At a July 2019 VA psychiatry consult, the psychologist observed that there were multiple conditions that could account for the Veteran’s subjective sense of decline, such as psychiatric conditions, past alcoholism, TBIs with loss of consciousness, and sleep apnea, with sleep apnea being the most likely source for his perceived decline. See August 2019 CAPRI, page 33. At a September 2019 VA neurology visit, the Veteran endorsed problems with misidentifying words, memory issues, forgetting information he used to know very well, and having difficulties retaining new information. See November 2019 CAPRI, page 105. A September 2019 letter from VA psychiatrist Dr. P noted that the Veteran had a diagnosis of cognitive impairment. See November 2019 Medical Treatment Record - Government Facility. Finally, after the January 2020 Board remand, the Veteran was provided a VA examination for TBI in July 2020. After reviewing the Veteran’s records and conducting an in-person exam, the examiner opined it was less likely than not that the Veteran incurred an in-service TBI, because there were no findings, signs, or symptoms to support a diagnosis. The examiner considered the in-service incidents of hard helicopter landings and crashes but noted that in-service records, post-service evaluations, and records from the first decade after separation documented neither TBI nor common TBI residuals. In particular, the examiner noted that the earliest submitted records, from 1975, contained no references to TBI or common residuals. The examiner also called attention to the Veteran’s history of PTSD, transient ischemic attacks, a TBI incurred in 2010 (three decades post-service), hypogonadism, and sleep apnea. These conditions, according to the examiner, could modify and mimic TBI residuals. The examiner further noted that other physicians had attributed the Veteran’s subjective cognitive symptoms to other ailments, and not to TBI. See July 2020 and July 2020 C&P Exam. The Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has recharacterized the Veteran’s TBI claim as a claim for cognitive disorder. Consequently, the Board finds the July 2020 VA exam inadequate to adjudicate the issue at hand. Although the VA medical examiner adhered to the remand instructions to evaluate the Veteran’s claim that an in-service TBI caused his cognitive disorder, the examiner did not give an opinion regarding the possibility that the Veteran’s cognitive disorder was caused or aggravated by a service-connected disability. The examiner’s medical opinion noted that conditions such as PTSD could modify and mimic TBI residuals. The Board observes that the Veteran is currently service connected for numerous conditions including PTSD with residuals, Parkinson’s with residuals, and cervicogenic headaches. Therefore, an additional VA medical opinion should be obtained to assess whether the Veteran’s cognitive disorder was caused or aggravated by a service-connected disability. While the record does include letters from two other VA physicians, these letters do not contain medical opinions adequate for adjudicating the Veteran’s claim. The September 2016 and October 2019 letters from Dr. W note the Veteran’s service history and his concerns with memory loss without opining whether the two are etiologically related. Similarly, the letter from Dr. P notes a diagnosis of cognitive impairment without making an etiological determination for the condition. The Board further observes that several of the Veteran’s physicians have identified the possibility that the Veteran’s cognitive disorder is related to conditions such as PTSD or sleep apnea. However, these opinions use words and phrases such as “possibly,” “cannot be conclusively ruled out,” “unclear,” and “could.” Such speculative language does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, in order to properly adjudicate this issue on appeal, a Remand is necessary to obtain an adequate VA opinion. The matter is REMANDED for the following action: Obtain an addendum to the July 2020 VA examination by an appropriate examiner to determine the nature and etiology of his diagnosed cognitive disorder. The examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed cognitive disorder is etiologically related to his period of service? Please explain why or why not. (b.) The examiner is asked to consider all of the Veteran’s currently service-connected disorders, especially PTSD, Parkinson’s disease and associated residuals, and cervicogenic headaches and to issue an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed cognitive disorder was (i) caused or (ii) aggravated by one or more of these disabilities. Please explain why or why not. (c.) If the examiner determines that the Veteran’s cognitive symptoms are better attributed to a non-service-connected condition, please explain why. (d.) The examiner should consider the facts as outlined in the body of his Remand when providing opinions. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, Attorney-Advisor 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.