Citation Nr: 21023927 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-00 984 DATE: April 21, 2021 ORDER Service connection for a traumatic brain injury (TBI) is denied. Service connection for headaches, as secondary to service-connected hypertension, is granted. REMANDED A total disability based on individual unemployability (TDIU) for the period prior to June 24, 2011.   FINDINGS OF FACT 1. The Veteran does not have a TBI. 2. The Veteran’s headaches are caused by his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI is not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for headaches, as secondary to service-connected hypertension, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to April 1979. The case is on appeal from a June 2013 rating decision. In October 2018, the Veteran testified at a Board hearing. In a March 2019 decision, the Board reopened and remanded the claim of service connection for hearing loss and remanded the claims of service connection for a TBI and for headaches, and a TDIU. While the case was in remand status, in an August 2020 rating decision, the RO granted service connection for hearing loss. As the benefit sought has been granted in full, that issue is no longer on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A Veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) 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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d), the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, if said evidence is consistent with the circumstances, conditions, or hardships of the Veteran’s service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.   Analysis 1. Service connection for a TBI. The Veteran contends that service connection for a TBI and its residuals is warranted as it is the direct result of his combat service in Vietnam. Specifically, the Veteran asserts that during a firefight with the enemy, he hit the back of his head with the mount of a .50 caliber machine gun when reloading ammunition. He also indicates that several blasts during other firefights while in Vietnam felt like a concussion and that shortly after separating from the military, he began experiencing symptoms such as headaches and dizziness. See October 2018 Board hearing transcript; see also June 24, 2011 Statement in Support of Claim. Service personnel records (SPRs) show the Veteran served in Vietnam from February 1970 to April 1970. Service treatment records (STRs) are silent as to any treatment sought for a head injury, TBI, headaches, dizziness or nausea during active service. Pursuant to the Board’s March 2019 remand, the Veteran was afforded a first VA examination in November 2019. The Veteran reported the 1970 incident during a firefight in Vietnam when he hit his head. He reported that he was not unconscious and never had difficulties after that time. In light of his testimony, the VA examiner noted a diagnosis of an acute traumatic brain injury that has resolved. The examiner further noted that while the Veteran has occasional headaches, these are not related to a TBI and are due to another etiology. Further, based on the Veteran’s testimony the VA examiner acknowledged that that he may have been exposed to at least 2 blasts during service, however, these were not severe enough to “knock the Veteran down or cause injury and that the Veteran is not under continuous medication for a TBI or any residuals. Upon review of the Veteran’s medical history, the in-person interview and consideration of the Veteran’s statements, the VA examiner opined that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury or event. The VA physician concluded that while the Veteran bumped his head and suffer a laceration on the top of his head, he did not have loss of consciousness for which the claimed condition was less likely than not caused by such in-service injury. The Veteran was afforded a second VA examination in connection with this claim in January 2020. Again, the Veteran reported the details of his injury in 1970 while in Vietnam. He reported that while he did not pass out, he saw some black spots. The examiner indicated that while the Veteran complains of some mild memory loss, his judgement, social interaction, orientation, motor activity, communication, consciousness, and visual spatial orientation are all normal. The examiner noted subjective symptoms such as headaches or dizziness and one or more neurobehavioral effects that do not interfere with the workplace or social interaction. In light of the foregoing and upon reviewing the Veteran’s medical history, consideration of his statements and the in-person interview, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury or event. The examiner concluded that while the Veteran asserts hitting the back of his head and saw some black spots for a few seconds during a firefight in Vietnam, he did not lose consciousness. In sum, the examiner, a psychiatrist, indicated that it is difficult to say that his symptoms of headaches and dizziness are related to the injury while in Vietnam without resorting to mere speculation. Post-service treatment records do not show complaints, treatment sought, or reports of a TBI. Private treatment records from Kelsey-Seybold Clinic reflect that during a basic neurological assessment conducted in December 2010, the Veteran denied dizziness, tingling, seizures, weakness, light headedness and numbness. See December 10, 2010 progress notes; see also January 6, 2011, and June 6, 2011 progress notes. In March 2013, the Veteran’s VA primary care provider noted that the Veteran experiences symptoms such as dizziness, light-headedness, weakness and others as he is under four or more antihypertensives, pain medications and sedatives. See March 8, 2013 progress notes. Lastly, the Board notes that the Veteran has been seen by the VA’s Neurology department. However, progress notes corresponding to those consults are for the Veteran’s bilateral peripheral diabetic neuropathy and not for symptoms or residuals, either cognitive or subjective, of a TBI. See e.g. June 11, 2013 progress notes. The Board acknowledges that the evidence of record includes the Veteran’s statements relating the incident in which he hit the back of his head with the mount of a machine gun during a firefight in Vietnam. In fact, the November 2019 and January 2020 VA examiners acknowledged such testimony in their reports. The Board finds the Veteran’s statements competent and credible, particularly after considering the places and circumstances of his service. However, the Board has afforded more probative weight to the opinions of the VA examiners who provided the November 2019 and January 2020 VA examinations. The Board finds both opinions persuasive and probative as they are based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the remaining medical evidence of record does not indicate a diagnosis of a TBI, or treatment received following the Veteran’s service for any cognitive impairment or any other residuals as a result of a TBI. In sum, the Board finds there is not sufficient evidence to establish a diagnosis of a TBI. In addition, while the Veteran believes he has a current diagnosis of TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the conclusion of the VA examiners who provided the November 2019 and January 2020 VA examinations. Thus, the Board concludes that the Veteran does not have a current diagnosis of a TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As the preponderance of the evidence is against the claim, particularly with respect to the current disability element of the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection for TBI is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. Service connection for headaches, to include as secondary to service-connected hypertension. The Veteran contends that service connection for headaches is warranted. In support of his claim, the Veteran asserts that his headaches are either the result of a TBI incurred during service or that these may be caused by his service-connected hypertension. See October 2018 Board hearing transcript. In a June 2011 statement in support of claim the Veteran indicated that he experiences unexpected headaches which he believed were related to his exposure to blasts during service in Vietnam. As previously noted, the Board has found that the Veteran does not have a TBI. A such, the question for the Board is whether his claimed headaches are proximately due to or the result of his service-connected hypertension. At the outset, the Board notes that the Veteran has a current diagnosis of acute and intermittent tension headaches. See November 2019 VA examination. As such, the current disability element of the claim has been established. As to the nexus question, there is evidence in favor and against the claim. VA treatment records show that in January 2011 and June 2011, the Veteran denied headaches. Nonetheless, VA progress notes dated in March 2013 and August 2014 reflect that the Veteran’s VA primary care provider noted that he experiences, in pertinent part, symptoms such as dizziness, light-headedness and others as he is under four or more antihypertensives, pain medications and sedatives. During a more recent March 2020 ophthalmology follow up, the Veteran reported occasional headaches which have become more frequent. Pursuant to the Board’s March 2019 remand, the Veteran was afforded two VA examinations in connection with this claim. The November 2019 VA examiner, a physician, indicated that the onset of the Veteran’s headaches, by history, was in 1970. The Veteran reported occasional headaches in several areas of his head which he has long treated with over the counter medication. The VA examiner indicated that upon review of the Veteran’s medical history, records, and the in-person interview, it was her opinion that the claimed disability is at least as likely as not proximately due to or the result of the Veteran’s service-connected hypertension. While the examiner did not provide a rationale, she restated that the Veteran’s headaches are related to the service-connected hypertension. The Veteran underwent a subsequent VA examination in January 2020. The VA examiner noted that the Veteran is in multiple medications for control of his hypertension. The examiner noted that the Veteran’s headaches are currently greater than the baseline and that it is at least as likely as not his headaches are aggravated beyond its natural progression by reason of his service-connected hypertension. In support of the opinion, the VA examiner indicated that the Veteran could experience headaches because his blood pressure is elevated. She further noted that medical research has shown that a few people with high blood pressure may have headaches, shortness of breath or nosebleeds. See https://www.mayoclinic.org/diseases-conditions/high-blood-pressure/symptoms-causes/syc-20373410. The examiner also noted that although these signs and symptoms are not specific and usually do not occur until high blood pressure has reached a severe or life-threatening stage, based on the Veteran’s symptoms and review of the medical record it is at least as likely as not that that the Veteran has a diagnosis of headaches that is aggravated by the Veteran’s hypertension. Notwithstanding the above VA opinions in favor of a nexus on a secondary basis, the RO requested a third opinion which was received in August 2020. The reviewer opined that there is no competent medical evidence indicating that the Veteran’s headaches were caused or aggravated beyond their natural progression by hypertension. The reviewer, an osteopathic doctor, pointed out that while the Veteran reported some headaches after hitting his head in the military, it was not until many years later that he began to report headaches. He further noted that there is no indication that there has been consistent evidence of any vascular component to the headache such as blurred vision, dizziness, or consistent pounding of the head noted with the pulse. Lastly, the reviewer indicated that the Veteran’s blood pressure has been well controlled for many years and that headaches may occur with a hypertensive crisis or untreated and significantly elevated blood pressure levels. In light of the foregoing, the examiner opined that “it is not felt that well-controlled hypertension causes or aggravates headaches. The Board notes that the August 2020 reviewer’s opinion may have been based on incomplete information. While he indicated that the medical evidence does not show indication of any vascular component to the headache, to include dizziness, VA treatment records show that in fact the Veteran experiences dizziness and lightheadedness given the medication prescribed, to include his antihypertensives for his service-connected hypertension. In addition, the January 2020 VA examiner made reference to possible nose bleeding stemming from hypertension and as shown by medical research cited in the opinion. Here, the Veteran has reported unexplained nose bleeding as a symptom accompanying his headaches. See October 2018 Board hearing transcript, p.25. At this point, the Board can identify no compelling reason to find the August 2020 reviewer’ opinion more probative than the November 2019 and January 2020 VA examiners’ opinions on the nexus element of the claim. While the examiners appear to have considered the same facts, it is not clear to what extent the examiners relied on the same medical research. Furthermore, different from the August 2020 reviewer, the November 2019 and January 2020 VA examiners were able to interview the Veteran in-person and concluded that based on his medical history, and review of his medical records, his headaches are proximately due or caused by his service-connected hypertension. Ultimately, while they reached different conclusions based on the current evidence of record, their disagreement must be considered a professional difference of opinion between differently qualified medical experts. Nonetheless, the Board notes that November 2019 VA examiner, a physician, and the January 2020 nurse practitioner provided persuasive opinions based upon their knowledge and review of the Veteran’s medical records, statements and history. See Nieves-Rodriguez, 22 Vet. App. at 304. For the reasons discussed above, the Board finds this evidence to be at least in equipoise as to whether the Veteran’s current headaches are related to a service-connected disability. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s headaches are caused by his service-connected hypertension. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for headaches as secondary to service-connected hypertension is warranted. REASONS FOR REMAND 1. A TDIU for the period prior to June 24, 2011. With respect to the TDIU appeal, in June 2011, the Veteran submitted a TDIU claim along with a statement in support of claim in response to a May 2011 rating decision which granted retroactive service connection benefits for coronary artery disease (CAD), pursuant to the provisions of the Nehmer Court Orders as set forth in 38 C.F.R. § 3.816. The Veteran indicated that his CAD is one of the disabilities that precluded him from maintaining and securing substantially gainful employment. See June 24, 2011 VA Form 21-8940. In his TDIU application, the Veteran reported he last worked full-time on February 5, 2011, when he was no longer able to maintain his employment, to include due to his CAD. See also June 24, 2011 statement in support of claim reasonably raising the issue of a TDIU. As the TDIU claim stems from the initial May 2011 rating action for the Veteran’s CAD, consideration of a TDIU for the period prior to June 24, 2011, is warranted, but only from February 5, 2011, the day after the Veteran and his employer certified he last maintained full-time gainful employment. See VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability). In the present case, an award for a TDIU on a schedular basis has been in effect since June 24, 2011. The issue of a TDIU prior to that date remains on appeal as part of the May 2011 initial rating action for his service-connected CAD. The Board notes that, although service connection for headaches has been granted in the present decision, prior to June 24, 2011, the Veteran still does not meet the required criteria for a TDIU on a schedular basis.  As such, consideration of whether an extraschedular TDIU is warranted prior to June 24, 2011, must be made pursuant to 38 C.F.R. § 4.16(b). In the June 2011 TDIU application, the Veteran indicated that he last worked as a mechanic, position he held for 10 years, until February 5, 2011, date on which his service-connected disabilities precluded him from securing or following substantially gainful employment. See also September 2011VA Form 21-4192 (Request for Employment Information in Connection with the TDIU claim) (indicating that the Veteran last worked full-time on February 4, 2011). In determining whether a Veteran can secure and follow a substantially gainful occupation, the Board must considered the veteran’s history, education, skill, and training; whether he has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  While the Board does not have the authority to assign an extraschedular TDIU in the first instance, it can decide whether a claim should be referred to the Director, Compensation Service. See Wages v. McDonald, 27 Vet. App. 233 (2015).  Pursuant to the March 2019 Board remand, the Veteran was afforded a VA examination in connection with his service-connected disabilities, to include his CAD. The examiner opined that the Veteran’s CAD interferes with his ability to walk or run for long periods, as well as climbing and descending stairs, squatting, kneeling and lifting heavy objects due to low endurance, easy fatigability and weakness. With respect to the Veteran’s hypertension, the VA examiner indicated that the impact of his disability is difficulty with aerobically demanding activities such as prolonged walking or running or climbing and descending stairs, working at heights, such as on a ladder or scaffolding, especially in increased ambient temperatures, impairment due to risk of intermittent light-headedness, and generalized feeling of weakness sometimes associated with hypertension as well as the side effects of antihypertensive medication. With respect to the Veteran’s diabetes mellitus, the VA examiner indicated that the Veteran is limited by decreased physical stamina and endurance as well as limited ability for heavy exertion, prolonged standing and walking, impaired motor coordination, tactile discrimination and manual dexterity, limited tolerance to extreme temperatures and long hours without rest and/or food intake, and difficulties with concentration and focus related to diabetes. While the above opinions were not issued from a retrospective perspective, the Board notes that in his June 2011 TDIU application, the Veteran made reference to his heart-related disabilities and additional low endurance issues involving his legs, knees and feet as the reasons that prevented him from employment. See also June 2011 statement in support of claim (the Veteran reported he is not able to stand for periods longer than 5 to 10 minutes). The Board also notes that, during a May 2009 VA examination in connection with his heart disability, the Veteran reported shortness of breath on exertion on ground level, dyspnea on mild exertion, that the Veteran had to climb stairs slowly. By August 2011, the Veteran’s VA primary care provider indicated that the Veteran was permanently disabled and signed a request for the issuance of a disability parking permit. Although the Veteran’s service-connected disabilities did not meet the schedular criteria for a TDIU prior to June 24, 2011 under 38 C.F.R. § 4.16(a), the evidence is at least in equipoise to support that he was still unemployable by reason of the combined effect of his service-connected disabilities since the February 5, 2011. As noted, the Board is prohibited from granting an award of a TDIU under 38 C.F.R. § 4.16(b) in the first instance. See Wages, 27 Vet. App. at 233 (the Board is authorized to award extraschedular TDIU after obtaining the Director’s decision). Therefore, the Board finds that a remand is warranted for the RO to refer the claim for a TDIU on an extraschedular basis to the Director to determine whether the Veteran is entitled to an extraschedular TDIU prior to June 24, 2011, under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: In accordance with 38 C.F.R. § 4.16(b), refer the claim to the Director of Compensation Service for consideration of a TDIU prior to June 24, 2011, on an extraschedular basis. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.