Citation Nr: 21025189 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-26 145 DATE: April 27, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a compensable rating for service-connected malaria is remanded. Entitlement to service connection for traumatic brain injury (TBI) and/or residuals of TBI is remanded. Entitlement to service connection for scars on the brain, to include as secondary to a service-connected disability or disabilities, is remanded. Entitlement to service connection for a seizure disorder, to include as secondary to a service-connected disability or disabilities, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record is at the very least in equipoise as to whether the Veteran has a current diagnosis of PTSD that is causally related to verified in-service stressors. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1967 to November 1970. A Board hearing was held before the undersigned Veterans Law Judge in November 2020, and a transcript of the hearing is of record. The Veteran and his attorney requested a 90-day continuance to obtain additional medical evidence in support of the claims currently on appeal. In January 2021, the Veteran’s attorney submitted additional evidence and private treatment records for the Board’s consideration. Service Connection – PTSD Entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis conforming to specified diagnostic criteria; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In this case, the Veteran seeks entitlement to service connection for PTSD based on his service during the Vietnam War. See November 2014 VA Form 21-0781. The Veteran’s service records document that he served as a Field Medical Service Technician attached to the 3rd Marine Division in the Republic of Vietnam. The Veteran received a Combat Action Ribbon for his service in the Vietnam War. The Veteran was also awarded the Navy Achievement Medal with the Combat Distinguishing Device, and the citation noted the Veteran exposed himself to hostile fire (to include enemy rocket, artillery, mortar, and small arms fire) to render first aid to his unit’s wounded men. In a February 2014 Assessment and Consultative Report, psychologist, Dr. J.E., took a history from the Veteran. The Veteran reported he was involved in numerous combat operations while serving as a Corpsman with the Marines. The Veteran reported he lost friends and witnessed numerous killings of enemy combatants. The Veteran reported he experienced ground fire, and witnessed atrocities committed by soldiers. Additionally, the Veteran was assigned to work in the emergency room of a military hospital where he was exposed to trauma and violence. Dr. J.E. reported the Veteran met all the criteria for a diagnosis of PTSD. Dr. J.E. reported the Veteran experienced, witnessed, and was confronted with events that involved actual and threatened death or serious injury. Dr. J.E. reported the Veteran experiences flashbacks; intrusive, distressing recollections of events; disturbed sleep as a result of distressing dream activity; avoidance of thoughts, feelings, or conversations associated with the traumas he experienced in Vietnam; avoidance of individuals and relationships due to his fear of experiencing loss; difficulty concentrating and hypervigilance; and feelings of detachment or estrangement from others. In March 2014, the Veteran submitted a statement in which he described stressors he was exposed to during the Vietnam War. See also November 2014 VA Form 21-0781. In a statement received by VA in March 2014, K.B. reported that he grew up with the Veteran, and that the Veteran was very social, out-going, and well liked as a youth. K.B. reported the Veteran was quiet and withdrawn upon his return from serving in the Vietnam War. In another statement, J.R. reported having worked with the Veteran for 20 years, and that the Veteran appeared to avoid reminders of his feelings and thoughts. In a statement from M.B., he reported that the Veteran changed from an open and outgoing person prior to serving in Vietnam, to a very different withdrawn and introverted personality when he returned. In another statement, J.T.U. reported that he and the Veteran were roommates and attended the same university shortly after the Veteran’s discharge from the Navy. J.T.U. recalled that he observed the Veteran experiencing regular and pronounced nightmares or terrors, and physically evasive responses to loud or sharp noises. In a March 2014 statement from the Veteran’s spouse, C.J. reported that she met the Veteran a few years after his separation from service. C.J. reported the Veteran never talked about the Vietnam War, and was distant and impatient. C.J. reported the Veteran had bad dreams, and walked and talked in his sleep. C.J. reported the Veteran avoided getting close to others. The Veteran was afforded a VA PTSD examination in January 2015. Dr. D.M.K. reported the Veteran’s in-service stressors, including working on wounded soldiers while under fire and seeing soldiers die and be injured, were adequate to support the diagnosis of PTSD. However, Dr. D.M.K. reported the Veteran’s symptoms did not meet the diagnostic criteria for PTSD, and that the Veteran did not have a current diagnosis of any other mental disorder. Dr. D.M.K. reported the Veteran did not meet the criteria for a diagnosis of PTSD due to insufficient symptoms of arousal/reactivity and clinically significant distress or impairment in social, occupations, or life functioning. Dr. D.M.K. indicated that the Veteran demonstrated some symptoms consistent with PTSD, but that the Veteran appeared to have coped well with minimal impairment in functioning, and that the Veteran did not reach clinical criteria for a diagnosis of PTSD. In an April 2015 VA mental health note, psychiatrist, Dr. S.R.M., noted the Veteran had been receiving monthly mental health treatment from Dr. J.E. for the last 13 months. Dr. S.R.M. indicated the Veteran reported that he jumped with unexpected loud noises, that barking dogs caused him distress, and that he felt unsafe when approached from behind. See also November 2020 hearing transcript. The Veteran reported he was not social with others, that his relationship with his spouse was distant, and that he had no friends. Dr. S.R.M. reported the Veteran had worked much of his life following his service in Vietnam with moderate difficulty getting along with supervisors, and some impulsivity and low reliability. Dr. S.R.M. reported the Veteran’s symptoms of PTSD appeared to have increased in severity without the distraction of work and superficial social interactions with others through his job. Dr. S.R.M. reported the Veteran had a current diagnosis of PTSD. In November 2015, Dr. D.M.K. provided an addendum to his January 2015 medical opinion that the Veteran did not meet the criteria for a diagnosis of PTSD. Dr. D.M.K. reported that a significant body of research supports that PTSD symptoms begin within a short time following exposure to trauma and not years later. Dr. D.M.K. indicated that any current difficulty in functioning or occupational impairment experienced by the Veteran is not attributable to PTSD associated with military stressors, which occurred over 40 years ago and were followed by a long period of successful functioning. In a November 2015 rating decision, the Veteran’s claim for entitlement to service connection for PTSD was denied on the grounds that a PTSD diagnosis was not confirmed. In this case, and as discussed above, there is no question that the Veteran experienced in-service combat stressors. Such stressors are consistent with the circumstances, conditions, and hardships of the Veteran’s service, and are supported by the evidence contained in his service records. Here, the issue is whether the Veteran has a current diagnosis of PTSD, and whether there is a causal nexus between the Veteran’s current symptomatology and the claimed in-service stressors. The Board finds the medical evidence of record is at a minimum in equipoise as to whether the Veteran has a diagnosis of PTSD conforming to the specified diagnostic criteria throughout the course of the appeal. Dr. D.M.K. opined the Veteran did not meet the criteria for a diagnosis of PTSD due to insufficient symptoms of arousal/reactivity and clinically significant distress or impairment in social, occupations, or life functioning. However, two other mental health providers, Dr. J.E. and Dr. S.R.M., evaluated the Veteran and found that he meets the criteria for a diagnosis of PTSD. Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (mental health professionals are experts and are presumed to know the Diagnostic and Statistical Manual of Mental Disorders requirements, and to have taken them into account in providing a diagnosis). In the November 2015 addendum medical opinion, Dr. D.M.K. went on to explain that the Veteran did not demonstrate PTSD symptoms until many years after service, and that any current difficulty in functioning is not attributable to PTSD associated with military stressors. However, in reaching this conclusion, the addendum medical opinion does not appear to consider the multiple lay statements reporting that the Veteran’s current symptoms of PTSD, including nightmares, avoidance behaviors, and arousal/reactivity symptoms, manifested upon his separation from service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). In light of the above, the Board places greater weight on the medical opinions from both Dr. J.E. and Dr. S.R.M., which found the Veteran has a current diagnosis of PTSD that is causally related to verified in-service stressors. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so). Accordingly, entitlement to service connection for PTSD is granted. REASONS FOR REMAND The Veteran seeks a compensable rating for his service-connected malaria, and entitlement to service connection for TBI, a seizure disorder, and scars on the brain. See May 2014 VA Form 21-0820; see also May 2014 VA Form 21-526EZ. In reviewing the claims file, it appears these issues are substantially intertwined. As such, these issues will be discussed together as it pertains to the reasons for remand discussed further below. In May 2014, the Veteran submitted private neurology treatment records pertaining to his claim for a compensable rating for his service-connected malaria, to include seizures as secondary to his service-connected malaria. In an October 2013 neurology note, the Veteran reported an episode that occurred in June where he experienced garbled speech, confusion, and confrontational behavior. The Veteran reported he was exposed to explosive blasts and contracted malaria falciparum with a high fever lasting for days while in the military. Dr. M.R. reviewed a June 2013 MRI, which he reported showed a few nonspecific white matter changes that were probably ischemic, and a parenchymal defect within the medial right temporal lobe that was most likely a neuroepithelial cyst. Dr. M.R. reported the Veteran most likely had a transient ischemic attack (TIA), but that the possibility of a partial seizure could not be ruled out because the Veteran’s history of malaria with high fever is a risk factor for seizures later in life. See also March 2014 progress note (indicating seizures may be related to cerebral scars sustained while in the military). In January 2015, the Veteran was afforded a VA examination for his claim for a compensable rating for his service-connected malaria, and entitlement to service connection for TBI, a seizure disorder, and scars on the brain. The examiner reported the Veteran’s malaria condition was inactive, and that he did not have any symptoms or residuals attributable to malaria. The examiner reported the Veteran had a diagnosis of mild TBI without residuals based on his reported history of symptoms related to exposure to blasts from enemy rocket, artillery, and mortar fire. The examiner indicated that seizures related to severe head injuries would have been expected to have occurred sooner after the injury event, and not more than 40 years later as in this case. With respect to the Veteran’s diagnosed seizure disorder, the examiner indicated that service treatment records did not document a high fever associated with the Veteran’s malaria and that, contrary to Dr. M.R.’s report, seizures have not been associated with residual symptoms of malaria, even cerebral malaria. Finally, the examiner indicated the Veteran’s reference to brain “scarring” was noted to be most likely a neuroepithelial cyst in the October 2013 neurology note. Although the Veteran’s report of high fever temperatures from malaria were not recorded in service treatment records, the Veteran reported he sat in a cold shower when he was awake or was packed in ice if he was unconscious. See January 2016 correspondence. The Veteran is competent to report his medical history. The Board finds the Veteran’s report of high fevers to be credible, and that such is supported by service treatment records that note the Veteran developed fever, among other symptoms, prior to his hospital admission for malaria in service. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In June 2016, a VA medical opinion was requested as to whether the Veteran’s current seizure disorder was aggravated beyond its natural progression by his service-connected malaria, and whether the Veteran’s neuroepithelial cyst(s) were aggravated beyond natural progression by his service-connected malaria. With respect to the request for a medical opinion concerning neuroepithelial cysts, the Board observes the Veteran’s service connection claim for brain scarring was alternatively characterized as a claim for neuroepithelial cysts based on statements made by the January 2015 VA examiner. However, in the October 2013 neurology note, Dr. M.R. appears to distinguish two separate findings on the June 2013 MRI: (1) nonspecific white matter changes that were probably ischemic, and (2) a parenchymal defect within the medial right temporal lobe that was most likely a neuroepithelial cyst. Additionally, in a December 2013 neurology note, Dr. M.R. reported “In retrospect, his TIA episode was most likely a focal, nonconvulsive seizure.” Dr. M.R. reported that a November 2013 electroencephalogram (EEG) was significant for rare epileptiform discharges arising from the left temporal region. See November 2013 EEG report (most significant finding was rare left temporal sharp wave discharges). The June 2016 VA examiner opined that the Veteran’s remote history of malaria resolved without residuals, and had no capacity to aggravate seizures that occurred over 40 years later. Additionally, the examiner indicated the Veteran’s neuroepithelial cysts are embryonal developments, which can be associated with seizures. The examiner opined the Veteran’s remote history of malaria that resolved without residuals has no capacity to aggravate neuroepithelial cysts over 40 years later, possibly causing seizures. The VA medical opinions of record do not appear to consider or discuss the significance, if any, of the medical evidence that appears to suggest the nonspecific white matter changes observed by Dr. M.R. on the June 2013 MRI, that were originally thought to be ischemic, were later indicated to be related to the Veteran’s seizure disorder. It does not appear that Dr. M.R. related the Veteran’s seizures to the findings of neuroepithelial cyst(s) within the medial right temporal lobe. During the November 2020 Board hearing, the Veteran indicated that the scars on his brain may be a result of TBI due to his exposure to explosive blasts during combat, and/or the reported high fever during service from malaria. See also May 2016 correspondence from the Veteran. Additionally, it appears that a private neurologist has suggested the Veteran’s seizure disorder is linked to migraines. See July 2017 Dr. M.K.P. progress note. As this matter is being remanded, the Veteran should be afforded the opportunity to submit any additional medical evidence in support of his claim. The Board finds that open medical questions remain in light of the medical evidence of record discussed above, the articles submitted by the Veteran pertaining to long-term residual symptoms/effects of malaria, and the Veteran’s assertions concerning his claim for a compensable rating for his service-connected malaria, and entitlement to service connection for TBI, a seizure disorder, and scars on the brain. Accordingly, the Board finds remand is necessary for additional development before an informed decision can be made. As a final matter, the Board finds that the issue of entitlement to a TDIU was raised by the record as part and parcel of the Veteran’s increased rating claim for service-connected malaria. See May 2016 correspondence from the Veteran (seeking a 100 percent disability rating); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). To date, the Veteran has not been provided with proper notice concerning requirements for a TDIU claim. Additionally, the claim for a TDIU is inextricably intertwined with the initial evaluation to be assigned by the agency of original jurisdiction (AOJ) for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. With any assistance needed from the Veteran, request and obtain any outstanding private treatment records pertaining to the issues on appeal. 2. Send the Veteran and his attorney the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, request that he complete and return VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran to be examined by an appropriate clinician to assess the severity of his service-connected malaria. Following a review of the claims file, interview and examination of the Veteran, and any indicated studies that should be completed (to specifically include blood studies for malaria if it is reported, suggested, or alleged to be in an active process and such studies were not completed), the examiner is asked to respond to the following: (a.) Is the Veteran’s service-connected malaria in, or during the pendency of this claim for an increase is it shown to have been in, an active process stage? If so, identify such period or periods and their duration (and the clinical data supporting such findings). (b.) If the Veteran’s service-connected malaria has been inactive throughout the pendency of the increased rating claim, does he have any chronic residuals? If so, identify any chronic residuals by their nature, severity, duration, and related functional impairment. 4. Schedule the Veteran for a VA neurological examination to be conducted by an appropriate expert in neurology (psychiatrist, physiatrist, neurosurgeon, or neurologist), if possible. If such an expert is not available, this should be made clear, and an examination should be conducted by another qualified physician. Following a review of the claims file, interview and examination of the Veteran, and any indicated studies that should be completed, the medical professional should respond to the following: (a.) Identify whether the Veteran has any current cognitive impairment or any other residual disability as a result of a head injury/TBI in service (other than PTSD, which is service-connected based on the decision herein). Any tests or studies indicated should be completed. (b.) Address the nature and etiology of the Veteran’s claimed scarring on the brain. The examiner should consider and discuss the significance, if any, of the October 2013 private neurology note from Dr. M.R. indicating the Veteran’s MRI of the brain demonstrated nonspecific white matter changes in addition to a parenchymal defect within the medial right temporal lobe that was most likely a neuroepithelial cyst. i. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s claimed scarring on the brain was caused by an injury in service, to include as due to exposure to enemy rocket, artillery, and mortar fire in close proximity? ii. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s claimed scarring on the brain was caused or aggravated by a service-connected disability or disabilities, to include malaria and/or PTSD? (c.) Address the nature and etiology of the Veteran’s seizure disorder. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s seizure disorder was caused or aggravated by a service-connected disability or disabilities, to include malaria and/or PTSD? In providing a response, the medical professional is advised that the Veteran is competent to report he experienced a high fever for days when he contracted malaria in service. The medical professional should also consider and discuss Dr. M.R.’s report that high fever is a risk factor for seizures later in life. All medical opinions must be supported with a clinical explanation or rationale. 5. Readjudicate the issues on appeal. If any of the benefits sought remain denied, issue the Veteran and his attorney a supplemental statement of the case and inform the Veteran of his appeal options. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.