Citation Nr: 21015946 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-00 851 DATE: March 18, 2021 ORDER The application to reopen the claim for service connection for a traumatic brain injury (TBI) is granted. Entitlement to service connection for a low back disability is denied. REMANDED Entitlement to service connection for a TBI is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a March 2003 decision, the RO denied service connection for a TBI. 2. Evidence received since the March 2003 decision relates to an unestablished fact necessary to substantiate the claim of service connection for a TBI. 3. A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident during service, and arthritis did not manifest within one year of the Veteran’s discharge from active duty. CONCLUSIONS OF LAW 1. The March 2003 rating decision denying service connection for a TBI is final. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § § §§ 3.156, 19.129, 19.192 (2018). 2. New and material evidence has been received regarding the claim of service connection for a TBI and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § § 3.156. 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to July 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office. In a November 2019 decision, the Board denied, amongst other issues, the Veteran’s application to reopen the claim for service connection for TBI. In August 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s denial and remanded the above referenced issues to the Board pursuant to a joint motion for partial remand (JMPR). The November 2019 decision also remanded the issues of entitlement to service connection for a low back disability and for a TDIU, which have now been returned and are before the Board. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a traumatic brain injury (TBI). The Veteran has asserted he suffers from a TBI as a result of his time in service. The Veteran’s service treatment records (STRs) are negative for any TBI-related complaints or diagnoses. In March 2003, the RO denied service connection for a TBI, claimed as head trauma. The basis for the denial was that there was no in-service event, injury, or disease related to head trauma. The Veteran filed to reopen his claims for service connection. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade, supra. Moreover, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Since the March 2003, decision, statements in support of his claim and medical records have been associated with the file. He underwent a TBI examination in August 2016. The Veteran was noted to have a history of a TBI and left trochlear nerve palsy. These statements in support, treatment records, and examination, which indicate the Veteran has a history of a TBI, could reasonably substantiate the claim. 2. Entitlement to service connection for a low back disability The Veteran asserts that he suffers from a low back disability as a result of his time in service. The Veteran was a boxer during and post-service. The Veteran’s service treatment records (STRs) contain complaints of back pain. Upon discharge he was not diagnosed with a back disability. A treatment records from Akron General, dated August 2010, note the Veteran’s complaints of low back pain. In August 2011, the Veteran filed a claim for service connection. The Veteran underwent an examination in June 2013, and was diagnosed with degenerative arthritis. The examiner opined that his thoracolumbar spine degenerative arthritis is part of the aging process and was not incurred in or caused while in service. In an August 2016 medical opinion addendum, the examiner opined the Veteran has diffuse degenerative arthritis of multiple joints. The Veteran’s degenerative arthritis of the lumbar spine is part of the normal aging process and not incurred in service. In April 2019 Dr. T. P. provided a statement that the Veteran suffers from significant disc degeneration at L4-5 and L5-S1. The degeneration has disc space narrowing with anterior spurring. The clinician found that this is long-standing and is a result of past traumatic injury, most likely related to his service. However, the private opinion did not include a detailed rationale for the opinion reached, nor did it point to the in-service injury that resulted in the current disability. In December 2019, the Veteran underwent an examination, and was diagnosed with degenerative arthritis of the spine. The Veteran reported symptoms of pain that started in the 1980s. He reported aching pain, and experiencing severe flare-ups. The examiner indicated the Veteran has degenerative arthritis of the spine, diagnosed several years post-service, and is part of the normal aging process. The examiner indicated his low back disability was incurred in or caused by the boxing during service. The examiner stated that the Veteran’s degenerative arthritis of the spine was diagnosed over 25 years post service, and is not related to the any complaints of back pain during service. The examiner noted the private opinion of Dr. T.P., and concluded the Veteran’s arthritis is due to the Veteran’s normal age progression. Further, the examiner noted there is no objective continuity of care for a back-condition post service, and post-service the Veteran’s employment has included physically demanding employment. The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In addition, arthritis is a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a), and therefore, the Veteran’s statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. Although the record reflects the in-service complaints of pain, the Veteran’s reports of in-service and post-service symptoms are not supported by the medical evidence of record. The Veteran has reported experiencing back pain ever since his time in service; however, he did not file a claim for service connection until 2011, over thirty years post discharge. The first indication in the treatment records of a back condition, is a notation from August 2010 when he was noted as having low back pain, still 30 years post-discharge. As such, the Board finds the Veteran’s statements of having experienced a low disability ever since service to lack credibility. The contemporaneous medical records show the onset of back problems several decades after service and the VA examiner opined that his back disability was due to the aging process. Although the Veteran believes his current back disability is proximately due to the in-service boxing, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Further, he was not shown to have arthritis in the first post-service year or for many years thereafter. His contentions that he experienced low back pain since service are not corroborated by the contemporaneous medical evidence of record and are controverted by the probative VA opinion providing the likely etiology of the Veteran’s back disability—aging. Consequently, the Board does not afford the Veteran’s lay statements probative value. Even though there is a positive opinion of record, and the clinician is both competent and credible to provide an opinion, this opinion is not probative. The April 2019 opinion stated the Veteran suffers from significant disc degeneration at L4-5 and L5-S1, which is long standing and is a result of past traumatic injury, most likely related to his service. There is no indication that the private clinician reviewed the Veteran’s medical history, nor did she address the lack of back complaints for decades following service. As this opinion lacks rationale and does not include any discussion of the Veteran’s medical history since service, the Board finds it lacks probative value and it outweighed by the VA examiner’s opinion. Conversely, the VA examiner’s opinions, when considered together, have significant probative value as they reflect consideration of all relevant facts—to include the Veteran’s lay statements regarding in-service injuries and the in-service and post-service treatment records. They also provide a detailed rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Ultimately, the most probative evidence of record does not show that his low back disability is directly due to service or presumptively related to service. Absent probative evidence linking his claimed disability to service, service connection must be denied. REASONS FOR REMAND 3. Entitlement to service connection for a TBI. The Veteran has asserted he suffers from a TBI as a result of his time in service. The Veteran’s service treatment records (STRs) are negative for any TBI-related complaints or diagnoses. The Veteran boxed before, during, and after service. In an October 2002 statement from Dr. A. L. it was noted the Veteran suffered from left nerve palsy, likely secondary to boxing which results in double vision. In April 2001, the Veteran sought care for memory problems. He reported these symptoms started in 1992. At an April 2013 VAMC visit, the Veteran relayed his belief that he has memory difficulties related to his history of boxing during service and subsequent head injuries. The Veteran underwent a TBI examination in August 2016. He Veteran was noted to have a history of a TBI and left trochlear nerve palsy. He had corrective eye surgery for diplopia in 2002, resulting in resolution of his diplopia. The examiner stated it is at least as likely as not that the Veteran sustained a mild TBI during service, which was followed by memory difficulties lasting approximately one week with resolution after this period time. He sustained a left 4th cranial nerve palsy due to one of his head injuries during his boxing career, but this resolved in 2002. The examiner opined that due to a lack of sufficient medical documentation, it was not possible to state with certainty that a head injury during service resulted in left 4th cranial nerve palsy. In an addendum, the examiner opined it is less likely than not that the Veteran’s memory complaints are due to a TBI during service. The rationale was that neuropsychiatric testing from April 2001 did not provide any conclusive evidence of cognitive impairment due to the Veteran’s boxing career. A remand is needed in order to provide the Veteran with another examination, taking into account the Veteran’s reports of in-service injuries, memory impairment, and the statement of Dr. L. 4. Entitlement to a TDIU The Veteran asserted that he is unable to obtain employment as a result of service-related conditions. As the issue of entitlement to service connection for a TBI could impact entitlement to a TDIU, this issue is intertwined with the claim on appeal. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of the claimed TBI. Following a review of the claims file, the examiner should prove an opinion for the following: Is it at least as likely as not that the Veteran suffers from a TBI, and/or residuals of a TBI, that is related to his service? The examiner is asked to address the Veteran’s contentions, the STRs, Dr. L.’s statement, and the August 2016 VA opinion. To the extent the Veteran reported memory loss that originated in 2002, he is competent to so report. The examiner is asked to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.