Citation Nr: 21014774 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 07-23 318 DATE: March 15, 2021 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for gastrointestinal cancer as secondary to service-connected disability is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. REASONS FOR REMAND The Veteran had active military service from March 1983 to March 1992. This matter is before the Board of Veterans’ Appeals (Board) following Board Remands in August 2010, August 2011, May 2015, October 2019, and August 2020. The Board is cognizant of the fact that the Veteran’s case has been in adjudicative status for several years. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claims. 1. Entitlement to service connection for residuals of a TBI The Veteran’s service treatment records indicate that on September 28, 1989, he fell off of a bicycle and injured his head. He was diagnosed with a central nervous system concussion. In December 1989, the Veteran was taken to the emergency room by ambulance with a laceration on forehead with no loss of consciousness. The Veteran was seen in May 1991 for a headache of two week’s duration; however, he denied having had head trauma. On the clinical examination in March 1992 for separation from service, the Veteran’s head and neurologic health were evaluated as normal. On the Report of Medical History completed by the Veteran in conjunction with his separation physical, he denied ever having a head injury. VA treatment records include an April 2002 Persian Gulf Registry at which time the Veteran denied any serious injuries. In December 2017, VA obtained a medical opinion from a VA psychiatrist regarding whether the Veteran had residuals of TBI. The examiner noted, “Now, one cannot assume that a head injury – even a concussion – means someone is going to get a TBI. One defin[i]t[e]ly cannot assume that – even if there was some type of TBI – somebody is going to have problems from it 30 years later.” The Board notes that VA has determined that “Mild traumatic brain injury (mTBI) is also referred to as a concussion.” https://www.research.va.gov/topics/tbi.cfm#research4. As such, the Board finds that the December 2017 VA examiner’s opinion is flawed in that it does not accept that a concussion is a TBI. Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, an additional VA opinion is needed to address whether the Veteran has current chronic residuals attributed to an in-service TBI.   2. Entitlement to service connection for a headache disability As noted above, the Veteran’s service treatment records indicate that he was seen in May 1991 for a headache of two week’s duration; however, he denied having had head trauma. On the clinical examination in March 1992 for separation from service, the Veteran’s head and neurologic health were evaluated as normal. On the Report of Medical History completed by the Veteran in conjunction with his separation physical, he denied ever having frequent or severe headache. At the April 2002 Persian Gulf Registry, headaches were noted to be not applicable. The Veteran underwent a VA examination in September 2004 at which time he complained of constant headaches since the Gulf War in 1990. Diagnostic impression included chronic headaches for 14 years, normal examination, etiology of headache unknown. Interestingly, the Veteran reported that his pain came as a group and not individually -- that pain starts in the left big toe, pain in the hemorrhoids, pain in his neck, and then headaches. A February 2004 History and Physical Note indicates a recent history of headaches relieved by Tylenol without mention of any neck pain. Physical therapy notes from May 2005 indicate that the Veteran reported headaches including face, forehead, ear, and back of head. A June 2005 VA Physical Therapy reassessment notes that the Veteran’s “headache pattern by history matches the referred pain pattern of the SCM [sternocleidomastoid] aside from the posterior pain.” In August 2011, a VA nurse practitioner noted that a computerized tomography (CT) scan of head for headache work up revealed some loss of normal cerebellar brain volume greater than expected for the Veteran’s age and commentary that this might be related to post-inflammatory or post traumatic event. An October 2011 VA Neurology Consultation report notes that the Veteran reported an injury in the neck while he was in the military with daily neck pain and headaches since then. The Veteran also reported that he was involved in a motor vehicle accident in 1982. He noted that he was driving the car on a summer day when it slipped and flipped over, ending up in a ditch. The Veteran reported that he hit the top of his head on the upper part of the car, that there was no scalp laceration, and that he may have passed out for no more than 10 seconds. The Veteran denied having a headache after the accident but noted that he began having headaches three years later. The Veteran also noted that he had another injury while on active duty in 1985 and that his headaches began after he came back from the Persian Gulf in 1992. The Veteran was diagnosed as having chronic daily headaches without focal neurological or lateralizing signs. The neurologist noted that the Veteran had hypertrophy of upper portion of right trapezius muscle, that digital pressure on that muscle produced pain, and that the Veteran indicated the right trapezius muscle was the source of his daily headache involving the right hemicrania. The neurologist also noted that the CT scan of the head noted atrophy in the cerebellum as well as the frontal and temporal areas probably related to the Veteran’s chronic alcohol abuse. The Veteran underwent VA examination in December 2017 at which time the examiner, a VA psychiatrist, noted that a simple headache was diagnosed in 1992 and that the evidence did not indicate that he had a chronic headache condition. A November 2018 Neurology Consultation report notes that the Veteran reported having head traumas in the military and headaches after. The neurologist diagnosed the Veteran as having post-traumatic headaches and noted that they had the characteristics of migraine with some associated cervicogenic or tension type features. The neurologist noted that MRI of brain was unremarkable. In August 2020, the Board remanded the issue for additional development. Specifically, the Board directed that a new VA medical opinion be obtained regarding direct service connection, secondary service connection, and as related to his service in the Persian Gulf as an undiagnosed illness or medically unexplained chronic multi symptom illness (MUCMI). In October 2020, VA obtained medical opinions from a VA nurse practitioner. With respect to direct service connection, the clinician opined that the Veteran’s headaches were less likely than not incurred in or caused by the claimed in-service injury, event or illness and noted that the headache in 1991 was acute only and that there was no evidence of chronicity of care. With respect to secondary service connection, the clinician found that the Veteran’s headaches were mostly migraine characteristics and not likely cervicogenic as the headaches responded to Imitrex. With respect to service connection on the basis of an undiagnosed illness or MUCMI, the clinician noted that the Veteran’s headaches had a diagnosis with a clear and specific etiology. Although the clinician noted that the Veteran was diagnosed with having post-traumatic headache with mostly migraine characteristics, she did not address the June 2005 assessment that the Veteran’s “headache pattern by history matches the referred pain pattern of the SCM aside from the posterior pain” or the October 2011 assessment by a neurologist that the Veteran’s hypertrophy of upper portion of right trapezius was the source of his daily headache involving the right hemicrania. Thus, an additional VA opinion is needed to address whether the Veteran has current chronic headache residuals attributed to active service or service-connected disability. 3. Entitlement to service connection for a cervical spine disability The Veteran’s service treatment records indicate that he was seen in June 1987 with report of injury during physical training five days prior resulting in upper back pain and stiffness. The Veteran also reported that his neck hurt when moving around. Assessment was possible strained muscles in upper back region and neck. In July 1987, the Veteran was seen again with complaint of neck pain for three weeks, specifically when moving head. The Veteran noted that he hurt his neck in a motor vehicle accident in 1982. On the clinical examination for separation from service, the Veteran’s neck and spine were evaluated as normal. At the April 2002 Persian Gulf Registry, neck stiffness and pain were noted to be not applicable. At the September 2004 VA examination, the Veteran complained of neck pain and upper back pain since 1986. The Veteran reported that the neck pain was localized in the back of the neck and in between the shoulder blades. He reported that he was working on a tank and pushed the pipes when he started having the pain. On physical examination showed range of motion of the cervical spine limited by pain and weakness of movement. The examiner also noted that the Veteran had a scar on his right shoulder which reportedly happened in 1982 when he was in a motor vehicle accident and his car flipped over causing the car window glass to cut his skin causing lacerations. The examiner diagnosed the Veteran as having degenerative joint disease (DJD) of the cervical spine causing chronic neck pain. As noted above, the Veteran reported that his pain came as a group and not individually -- that pain starts in the left big toe, pain in the hemorrhoids, pain in his neck, and then headaches. VA treatment records include a March 2005 CT scan of neck/cervical spine which showed degenerative disc disease (DDD) and spondylosis at Cs-C4 and C5-C6; mild left foraminal stenosis at C5-C6 more severe on the right; no significant central canal stenosis or disc herniation noted. VA physical therapy notes from May 2005 indicate that the Veteran reported that he was in a motor vehicle accident in 1982, that his neck was strained but “cleared up and went away.” The Veteran reported that in 1985, he injured his neck in the service working on a tank, that it “went away again but came back in 2003” and got progressively worse with severe pain and on one occasion with numbness down his left arm. The Veteran reported that his symptoms were intermittent pain in the neck and area between the neck and shoulder, posterior right side very low cervical level pain near spine. An August 2011 Rehabilitation Consultation note indicates that the Veteran reported having neck pain since 1985 since he was in physical training in the military and felt a pop in his neck during exercises. Assessment was chronic cervicalgia with suspicion for right C5-6 radiculopathy with history of foraminal impingement at that level. The Veteran underwent VA examination in September 2011 at which time he was diagnosed as having DDD. The examiner opined that the Veteran’s cervical spine DDD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted a motor vehicle accident prior to the Veteran’s military service as well as complaints of neck pain due to physical training injury in June 1987 and due to overactivity in February 1988. The examiner noted that DDD may be the result of overuse, injury, or aging but that it was her opinion that it was most likely related to the motor vehicle accident prior to military service and that due to the nature of the initial accident, she did not feel that DDD was aggravated beyond the normal progression during military service. The Veteran underwent VA examination in October 2016 at which time he stated that he was involved in a motor vehicle accident in 1982, that the car flipped, and he injured his neck. The Veteran noted that he was seen at DCH [Druid City Hospital] Tuscaloosa, treated for pain in his neck, received pain medication, and was sent home. The Veteran stated that it was a minor neck injury. The Veteran reported that in 1987 while performing calisthenics in physical training, he felt pain in his neck. He stated that he had an ache in the neck throughout the day and that when he awakened the next morning, he was unable to turn his neck due to a sharp pain. He stated that he was treated for neck strain. The Veteran reported that his neck pain radiated to the back of the head to right side of the head. The examiner opined that the Veteran injured his neck prior to military service and that during service he was treated for strained muscles due to over activity. The examiner opined that the neck strain that occurred in service in 1987 resulted from injuries that were not severe enough to result in the development of subsequent DDD and arthritis of the cervical spine, that it was not likely that the in-service diagnosis of muscle strain was causally related in any way to his current DDD, and that the Veteran’s cervical spine symptomology was more consistent with the natural progression of aging. In January 2020, VA obtained a medical opinion from a VA physician assistant which stated that the Veteran’s cervical spine DDD clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated by an in-service injury, event, or illness. The clinician stated that the Veteran had an acute injury to the neck (muscle strain) in 1987 during active duty service, that the condition was acute and resolved with treatment as evidenced by no additional complaints or treatments during active duty service. In August 2020, the Board remanded the issue for additional development. Specifically, the Board directed that a new VA medical opinion be obtained regarding aggravation considering factors such as the nature and severity of his current cervical spine pathology, the nature of his pre-service neck injury, and the nature of his in-service neck strain and symptoms. The Board also directed that the examiner’s explanation of lack of aggravation could not rely on an absence of documentation or solely on the fact that the Veteran’s in-service symptoms may have temporary resolved. In October 2020, VA obtained medical opinions from a VA nurse practitioner. The clinician opined that the Veteran’s cervical spine condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated by an in-service injury, event, or illness. The clinician noted that the neck strain in June 1987 was acute and resolved. Unfortunately, the clinician did not adequately address the Board’s directives. Thus, an additional VA opinion is needed to address whether the Veteran’s pre-existing neck condition was aggravated by the in-service neck injury. 4. Entitlement to service connection for gastrointestinal cancer as secondary to service-connected disability The Veteran underwent VA examination in May 2017 at which time he was diagnosed as having gastric cancer. The examiner, a VA physician assistant, provided an opinion that the Veteran’s gastric cancer was less likely than not proximately due to or the result of service-connected PTSD or the medication used to treat PTSD. The examiner noted that although the Veteran had begun experiencing symptoms while taking PTSD medication, there was no medical research/evidence to discern that the PTSD medications lead to gastric cancer. The Veteran underwent VA examination in January 2020 at which time the examiner, a VA physician assistant, opined that the Veteran’s gastric cancer was not at least as likely as not aggravated beyond its natural progression by service-connected condition. The examiner noted that the Veteran’s gastric cancer was treated and had been in remission since 2017 and that there was no pathophysiologic mechanism in which PTSD or alcohol/substance abuse could aggravate gastric cancer. In April 2020, the Veteran submitted an Internet medical article indicating that the long-term use of the drug Pantoprazole used to reduce the amount of stomach acid a body makes and treat painful symptoms caused by conditions such as GERD may cause fundic gland polyps which could become cancerous. VA treatment records indicate that Pantoprazole was on the Veteran’s Active Outpatient Medications from October 2012 to October 2020. In June 2020, VA obtained a medical opinion from a VA nurse practitioner. The clinician opined that the Veteran’s gastric cancer was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The clinician noted that alcohol increases the chance of having gastric cancer and that the Veteran’s alcoholism has a strong link to his gastric cancer. Unfortunately, the June 2020 VA medical opinion is not adequate to determine whether the Veteran’s service-connected alcohol abuse or medication taken for service-connected disability at least as likely as not caused or aggravated his gastric cancer. Thus, an additional VA opinion is needed to address whether the Veteran’s gastric cancer was caused by or aggravated by his service-connected PTSD with alcohol abuse or medication (Pantoprazole) used to treat his service-connected gastrointestinal disability. 5. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance The Veteran claims entitlement to SMC based on his gastrointestinal cancer. See May 2017 VA Form 21-2680. Accordingly, this issue is remanded as inextricably intertwined with the service connection claim for that disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).   The matters are REMANDED for the following action: 1. Obtain a new VA medical opinion regarding service connection for residuals of TBI, headache, and cervical spine. (A new examination need not be conducted at this time.) In light of the complex nature of these matters, an opinion by a VA medical specialist with appropriate expertise in TBI disorders, cervical spine disorders, and headache disorders, such as neurosurgeon or a neurologist should be obtained. a. The examiner should identify any current chronic disabilities that are at least as likely as not related to the mild TBI (concussion) suffered by the Veteran in September 1989. b. The examiner should provide an opinion as to whether it is clear and unmistakable (obvious or manifest) that the Veteran had a cervical spine (neck) disorder that preexisted service; and if so whether it is clear and unmistakable that such pre-existing cervical spine (neck) disorder was not aggravated during or by active service. The examiner must consider factors such as the nature and severity of his current cervical spine pathology, the nature of his pre-service neck injury, and the nature of his in-service neck strain and symptoms. If the examiner finds that the clear and unmistakable evidence shows lack of aggravation notwithstanding the Veteran’s in-service symptoms, the examiner’s explanation may not rely on an absence of documentation, or solely on the fact that the Veteran’s in-service symptoms may have temporarily resolved. In this regard, his pre-service symptoms had also resolved prior to service. Thus, the temporary resolution of symptoms in itself does not necessarily establish lack of aggravation or preclude a relationship to service. Regardless of the opinion respecting in-service aggravation, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current neck disability is related to his June 1987 in-service muscle strain and symptoms. c. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s headache disorder is related to in-service trauma, with consideration of the November 2018 VA neurology consultation and other VA treatment records showing the Veteran’s report of experiencing headaches ever since an in-service neck injury (the Veteran was seen for a possible muscle strain of the upper back and neck in June 1987). The examiner should consider the Veteran’s complaint of headaches of two weeks’ duration in the May 1991 service treatment record. The Veteran has repeatedly stated that he has experienced headaches ever since his period of active service. The examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran’s headache disorder has been caused or aggravated by a musculoskeletal condition of the neck or cervical spine. In this regard, a June 2005 VA treatment record reflects that that the Veteran’s headaches may be due to referred pain from the SCM muscle; a February 2006 VA treatment record states that the Veteran had pain starting at the bottom of the neck that came around the front of the head and manifested as headaches; a November 2018 VA neurology consultation finds that the Veteran’s headaches had cervicogenic features. The examiner is also asked to provide an opinion as to whether the Veteran’s headache disorder may be a sign or symptom of an undiagnosed illness or medically unexplained chronic multi symptom illness (as defined in 38 C.F.R. § 3.317 (a)(2)(ii)) based on his Persian Gulf service. In this regard, he served in the Southwest Asia theater of operations from December 1990 to March 1991. The service treatment records reflect a report of headaches of two weeks’ duration in May 1991. According to a September 2004 VA treatment record, the Veteran reported that his headaches started while he was serving in the Persian Gulf, and that he has had headaches since that time. 2. Obtain a VA medical opinion regarding service connection for gastric cancer. (An examination need not be conducted at this time.) In light of the complex nature of this matter, an opinion by a VA medical specialist with appropriate expertise in gastrointestinal disorders should be obtained. a. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s gastric cancer has been caused or aggravated by service-connected alcohol abuse. b. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s gastric cancer has been caused or aggravated by medication (Pantoprazole) used to treat his service-connected gastrointestinal disabilities. (Continued on the next page)   3. The claim for SMC should be readjudicated in conjunction with the claim for gastrointestinal cancer. Jack S. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.