Citation Nr: 21021900 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-23 276 DATE: April 14, 2021 ORDER Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a traumatic brain injury (TBI) is granted. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for a TBI is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. In an unappealed February 2015 rating decision, the Veteran was denied entitlement to service connection for TBI and posttraumatic stress disorder (PTSD). 2. The evidence received since the February 2015 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claims. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a TBI. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 2011 to August 2011, with additional service in the Army National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Claims to Reopen The Veteran was denied entitlement to service connection for TBI and PTSD in a February 2015 rating decision. At that time, the RO found that the evidence did not reveal that the Veteran’s TBI was incurred during active service or that she had a diagnosed psychiatric disorder. The Veteran did not appeal that decision and it became final. The pertinent evidence received since the February 2015 Board decision includes post-service treatment records, which reveal diagnoses of TBI and various psychiatric disorders, to include PTSD. Additionally, the evidence contains medical opinions indicating that the Veteran’s TBI and acquired psychiatric disabilities are related to her active service. Therefore, the Board finds that the evidence added to the record is new and material. In this regard, the evidence is not cumulative or redundant, and it raises a reasonable possibility of substantiating the claims. Accordingly, reopening the claims of entitlement to service connection for a TBI and an acquired psychiatric disability warranted. REASONS FOR REMAND Service Connection – TBI The Veteran asserts that her TBI was the result of a head injury she sustained during her basic combat training (BCT). In February 2014, the Veteran screened positive for TBI during a TBI consultation. In February 2015, the Veteran was seen for an initial TBI evaluation. At that time, the Veteran reported that she did not drive because she would get lost periodically and as such gave up driving the eight months prior. The TBI clinic notes revealed that the Veteran was provided TBI education and a handout; however, there was no notation of a TBI diagnosis. In August 2015, the Veteran was seen for an initial mental health evaluation due to her complaints of TBI. At that time, the Veteran recounted her experience of being repeatedly punched in the head during BCT, which resulted in a nosebleed and dizziness. The Veteran also reported that symptoms of disequilibrium, headaches, difficulty concentrating, and short-term memory impairment had continued since that time. Dr. A.W., a VA psychiatrist, diagnosed the Veteran with TBI, but noted that she had a very florid clinical presentation and there would be continued observation to pinpoint a diagnosis and its severity. Subsequently, in an August 2015 neuropsychological evaluation, the Veteran reported that the source of her difficulties was her 2010 incident during BCT. The examining VA psychologist, Dr. R.F., noted that in June 2012 the Veteran’s electroencephalogram (EEG) was normal and, in February 2015, the Veteran had normal magnetic resonance imaging (MRI) of the brain without infusion. Additionally, Dr. R.F. noted that the Veteran kept referring to her diagnosis of concussion with no loss of consciousness as a TBI despite education being provided to her. Dr. R.F. ultimately assessed that the Veteran only had unspecified anxiety disorder. In an October 2015 statement, the Veteran’s parents reported that within a few days to weeks after returning from BCT she complained of severe headaches, anxiety, depression, fatigue, and difficulty sleeping. The Veteran’s parents also noted that the Veteran enrolled in a university in August 2011, but continued to be depressed and anxious, have sleep impairment and difficulty focusing, and had a loss of interest in things she used to enjoy. The Veteran’s parents also noted that she saw an on-campus doctor who prescribed sleep medication, but that the Veteran ultimately ended up dropping all her classes. The Veteran’s parents also reported that the Veteran was irritable, argumentative, and difficult to get along with. In a January 2016 VA psychiatry note, Dr. A.W. noted that the Veteran had a diagnosis of TBI without loss of consciousness. In a June 2016 statement, the Veteran’s childhood friend stated that upon returning from BCT the Veteran complained of headaches, depression, and trouble sleeping. The Veteran’s friend also stated that the Veteran dropped her academic studies due to difficulty with hearing, sleeping, headaches, and nausea. In January 2017, the Veteran was afforded a VA examination for PTSD. At that time, the VA examiner noted that the Veteran did not have a diagnosis of TBI. However, the VA examiner also noted that the Veteran appeared unable and unwilling to answer questions due to the stated symptoms of her reported TBI. The VA examiner also noted that during the interview the Veteran shifted between states of severely impaired memory and confusion and complete states of clarity. Additionally, the VA examiner noted that the Veteran was assessed as appearing to have intact cognitive functioning during her September 2015 evaluation with Dr. R.F. The Board finds that the January 2017 VA opinion is inadequate for adjudication purposes. In that regard, the VA examiner supported his conclusion, that the Veteran did not have a TBI, with a statement made during Dr. R.F.’s August 2015 evaluation. However, the VA examiner failed to acknowledge that the Veteran was, at least provisionally, diagnosed with a TBI in August 2015 by Dr. A.W. Further, the VA examiner failed to consider the lay statements from the Veteran and her friends and family regarding the onset and continuity of her symptoms. In a January 2018 private medical opinion, Dr. K.R., a clinical psychologist, noted that the Veteran had been diagnosed with a TBI and opined that her TBI was one of the causes of her PTSD. Dr. K.R. also noted that the Veteran had reported that her TBI occurred after being hit in the head during basic training. In February 2021, C.H., a licensed clinical professional counselor, stated that the Veteran had been a client since February 2020 and that she believed that her reported military sexual trauma (MST) and physical assault was most likely what led to her diagnosis of TBI. The Board also finds that the January 2018 opinion from Dr. K.R. does not specifically state whether the Veteran’s TBI is etiologically related to being hit in the head during BCT. Additionally, the February 2021 statement from C.H. is conclusory as there is no supporting rationale for the opinion that the Veteran’s TBI is partially related to her in-service physical assault. As such, the Board finds that a remand is warranted to obtain an opinion pertaining to the etiology of the Veteran’s diagnosed TBI. Service Connection – Acquired Psychiatric Disability The Veteran asserts that her psychiatric disability is the result of her active service. In a November 2014 treatment note the Veteran stated that she had been diagnosed with PTSD. At that same time, the Veteran screed positive for depression and PTSD. Later in November 2014, the Veteran was referred to mental health after a PTSD evaluation. In a December 2014 statement, the Veteran stated that she had nightmares every night to every other night about a grenade going off next to her right ear during a training exercise. In an August 2015 mental health evaluation, the Veteran reported complaints of depression, anxiety, fear, anger, loss of pleasure, racing thoughts, poor communication, aggression, severe insomnia, low energy and motivation levels, sexual and physical abuse and secondary flashbacks. At that time, the examining VA psychiatrist diagnosed the Veteran with unspecified depressive disorder, unspecified anxiety disorder, mild neurocognitive disorder, and TBI. Subsequently, in an August 2015 VA neuropsychological evaluation, a VA psychologist diagnosed the Veteran with unspecified anxiety disorder. In September 2015, a treatment report revealed that the Veteran had a positive indication of non-military related PTSD. In an October 2015 statement, the Veteran’s parents stated, in addition to the above, that within the two years of the Veteran’s return from BCT she attempted suicide and had several hospitalizations. The Veteran’s parents also stated that in April 2014 she became isolated and completely estranged from the family, and did not reestablish a relationship with them until August 2015. In January 2016, the Veteran was diagnosed with PTSD by a VA Psychologist. In an October 2016 statement, the Veteran’s sister stated that upon returning from BCT she was detached from her family and struggled with hearing loss and tinnitus, anxiety, insomnia, and unemployment. The Veteran’s sister also stated that the Veteran was unable to continue her academic studies due to difficulty focusing and lack of sleep, which also consisted of nightmares that induced panic attacks. In her June 2016 VA Form 21-8940, the Veteran stated that she had to quit her job due to severe anxiety, headaches, insomnia, and depression. In a July 2016 statement, the Veteran stated that a live grenade went off right beside her during training which caused hearing loss. The Veteran stated that due to the hearing loss she became withdrawn socially, isolated in her home, and had severe panic attacks during her appointment with her neurologist because she could not understand what he was saying. She also stated that she had flashbacks on a nightly basis which caused her to awaken and not return to sleep. The Veteran also stated that she had flashbacks and panic about having to choke out her battle buddy during combatives at BCT. In January 2017, the Veteran was afforded a VA examination for PTSD. The VA examiner noted that the Veteran’s diagnoses included unspecified anxiety disorder, gender dysphoria, and borderline personality disorder. However, the VA examiner assessed that there was not sufficient evidence of markers to substantiate the Veteran’s reported MST. Additionally, the VA examiner opined that the Veteran’s diagnosed psychiatric disorders may have been exacerbated by her military training but there was substantial evidence that those disorders were likely present prior to military training. The VA examiner further noted that they were highly likely to be associated with the etiology of borderline personality disorder. The Board finds that the February 2017 VA opinion is inadequate for adjudication purposes. In that regard, the VA examiner failed to apply the clear and unmistakable evidence standard in opining that the Veteran’s psychiatric disabilities preexisted her active service. The Veteran’s service treatment records do not contain a notation of a psychiatric disability, consequently she was considered to have been in sound condition upon entry into service.38 U.S.C. § 1111 (2018). This presumption may only be rebutted with clear and unmistakable evidence that a psychiatric disability both preexisted and was not aggravated by service. Further, the VA examiner failed to adequately consider the lay statements from the Veteran and her family members regarding the onset and continuity of her symptoms. In a January 2018 private medical opinion, Dr. K.R., a clinical psychologist, opined that the Veteran’s in-service MST, and TBI due to being hit in the head during training, were more likely than not the cause of her PTSD. Dr. K.R. also noted that she had diagnosed the Veteran with recurrent major depression which started in the military and had continued since that time. Ultimately Dr. K.R. assessed that the Veteran’s PTSD, recurrent Major Depression, unspecified cognitive disorder, and anorexia developed during the miliary and that it was more likely than not due to the traumas she incurred while in service. In February 2021, a licensed social worker and MST coordinator opined that the Veteran’s PTSD diagnosis was medically attributed to an in-service stressful event. In February 2021, C.H. stated that the Veteran had been a client since February 2020 and that she believed that the Veteran’s reported MST and physical assault is most likely what led to her diagnosis of PTSD. Additionally, the Board finds that the additional opinions are conclusory as there is no rationale supporting the assessments made. Accordingly, the Board finds that a remand is warranted to obtain an opinion that addresses whether the Veteran’s psychiatric disabilities preexisted service and were aggravated by service, and if not, whether those psychiatric disabilities are otherwise related to the Veteran’s period of active service. These matters are REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records not already of record in the claims file. 2. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of any TBI, to include residuals of such. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran sustained a TBI while in active service, and has current residuals of such. In forming the opinion, the examiner must consider the Veteran’s lay statements regarding the TBI she sustained in service, and the lay statements regarding the onset and continuity of her symptoms. A complete and detailed rationale must be provided for all opinions expressed. 3. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present psychiatric disability. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran was subjected to sexual abuse/assault as described while she was in active service. The examiner should identify any evidence that supports the Veteran’s assertion and state whether the claimed events constitute a valid sexual assault stressor. Then, the examiner must identify all psychiatric disabilities present during the pendency of the appeal, or proximate thereto. For each identified psychiatric disability, the examiner must provide an opinion as to whether such disability clearly and unmistakably existed prior to the Veteran’s active service, and if so, was clearly and unmistakably NOT aggravated by such service. The examiner is instructed that the Veteran’s lay statements alone are insufficient to support a finding that a disability clearly and unmistakably existed prior to her active service. Then, for any psychiatric disability identified that did NOT exist prior to the Veteran’s active service, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the requested opinions, the examiner must consider the Veteran’s lay statements regarding the onset and continuity of her symptoms, to specifically include her lay statements regarding any in-service sexual assault that the examiner determines to have occurred as described. A complete and detailed rationale must be provided for all opinions expressed. 4. Confirm that the VA examination reports and all opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, Associate 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.