Citation Nr: 21025872 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-64 402 DATE: April 29, 2021 ORDER The appeal of entitlement to service connection for high cholesterol is dismissed. Service connection for a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In the November 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw the appeal of entitlement to service connection for high cholesterol. 2. The preponderance of the evidence of record is against finding that the Veteran has had any residual of a TBI at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for high cholesterol have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from July 1983 to March 1992. In November 2019, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. 1. Withdrawal of appeal for service connection for high cholesterol. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran indicated in his November 2019 Board hearing that he wished to withdraw the claim for entitlement to service connection for high cholesterol. The Veteran’s representative was with him in the hearing, and the Veteran stated that he understood that nothing further would happen with this issue. In light of this, the Veteran has withdrawn this appeal; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue of entitlement to service connection for high cholesterol, and it is dismissed. 2. Service connection for a TBI. The Veteran contends that two in-service incidents caused a TBI. First, he was in a car accident in Italy in which he swerved to avoid another car and collided with a brick wall on the Italian Army Base. He was unconscious for a few minutes and subsequently treated at a local hospital. Second, there was an accident on the flight line at Barksdale Air Force Base in which a refueler aircraft was leaking and ignited. The Veteran was working approximately 100 yards away when it exploded, and he was knocked back and knocked out. The Veteran states that his current symptoms include headaches, loss of concentration, and memory loss. See the November 2019 Board hearing transcript. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). The Board finds that the evidence establishes that the Veteran does not have a diagnosis of any TBI residual, and has not had such a diagnosis at any point during the pendency of the appeal. Service treatment records (STRs) indicate that in January 1985, the Veteran reported having been in a motor vehicle accident (MVA). He was noted to have a contusion to his forehead. His pupils were equally round, reacted to light, and normal in size. He was oriented, had good color, and did not look to be in distress. The Veteran was given a head trauma sheet, which was “fully explained” to him, and he was told to report any problems. He was also told to report to sick call in the morning. In the follow-up appointment the next morning, the Veteran reported that he had been driving and tried to avoid another car, but in doing so, hit a pole and a wall and went into a ditch. He was noted to have “only bumped forehead against steering wheel” and had a contusion to his forehead. There was no loss of consciousness, dizziness, or vomiting. He was assessed as having trauma to the forehead incurred in an MVA. In March 1985, the Veteran was noted to have multiple head and face contusions, and was directed to not to wear a gas mask. In a subsequent report of medical history dated in August 1987, the Veteran denied having or ever having a head injury, dizziness or fainting spells, or periods of unconsciousness. In November 1989, the Veteran was noted ot have a tension-like headache. In a March 1990 periodic examination, the Veteran’s head was noted to be clinically normal and the report is silent for mention of a past head injury. In a May 2016 VA TBI examination, the Veteran reported two incidents of trauma during service, including the 1985 MVA and the aircraft explosion, which occurred in 1987. He reported that he did not suffer any sequalae of the 1985 injury, and that he began having head pain a couple of weeks after the 1987 injury. Other current symptoms included insomnia, sensitivity to light and sound, and cognitive impairments including trouble remembering names and being easily overwhelmed when asked to multitask. On examination, the Veteran was alert and scored a 29 out of 30 on a mini-mental status examination (MMSE). A cranial nerve examination, including fundoscopy, was unremarkable; there was no drift or hemiparesis; deep tendon reflexes were normal and equal; plantar responses were both flexor; gait was normal; and there were no tremors or ataxia. The examining neurologist concluded that the Veteran did not have any cognitive impairment or subjective symptoms of any mental, physical, or neurological conditions or residuals attributable to a TBI. The examiner opined that given the Veteran’s clear recollection of the 1987 event, his failure to seek medical attention afterward, and a delay before symptoms appeared, it was unlikely that any of his current complaints were late manifestations of what were at most very mild concussions.” More likely, the Veteran’s symptoms had a psychological basis. The Veteran also had a VA headaches examination in May 2016. He reported having headaches in the middle of the top of the head, which occurred periodically. He could get 4-5 of them in a week, then none for months. The pain was sharp or throbbing, without nausea. He was sensitive to light and sound all the time, not specifically in relation to headaches. The headaches were not prostrating. The examining neurologist noted that there was at least one mention of headache in the STRs, but concluded that there was no clear temporal relationship to trauma that would suggest that the current headaches were posttraumatic headaches. The Veteran’s description of his headaches did not conform to any classic syndromes, and tension headache was probably the most appropriate diagnosis. The Board finds the May 2016 VA examiner’s opinion to be competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The VA examiner’s opinions were rendered after reviewing the Veteran’s STRs, soliciting a medical history from the Veteran, and conducting a physical examination and clinical testing of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner’s access to the claims folder and the Veteran’s history, and the thoroughness and detail of the opinion). The examiner also provided facts and rationale on which the opinions were based. The probative value of the VA examiner’s opinions is further bolstered by the consistency with the Veteran’s own statements, in which he denied having sequalae of the 1985 injury, and had not sought medical treatment for the 1987 injury. The 23-year gap between the Veteran’s separation from service and the date that he filed the claim for service connection in which he did not have a diagnosis or treatment weighs against the finding that the condition has existed since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, neither the Veteran nor his representative has produced a medical opinion to contradict the conclusion of the VA examiner. As such, there is no competent medical evidence that the Veteran has a diagnosis of any TBI residual, or that he had such a diagnosis at any point during the pendency of the appeal. The Veteran contends that service connection is warranted for a TBI, but the Board cannot rely on his assertions regarding a medical diagnosis. The issue is medically complex, as it requires specialized medical education and training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which notes that the Veteran does not have any diagnosis relevant to the claimed TBI. Without competent evidence of a relevant diagnosed disorder, service connection for the claimed disorder cannot be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability, there can be no valid claim.”); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a neck condition is remanded. 2. Entitlement to service connection for a back condition is remanded. 3. Entitlement to service connection for a right hip condition is remanded. The Veteran contends that his neck, back, and right hip were injured in his in-service MVA. He indicates that he was not treated in service for these injuries, but he did seek treatment from a chiropractor approximately 3-4 years after separation from service. He was most recently been seen by his chiropractor approximately one year ago. See the November 2019 Board hearing transcript. Currently, no medical records from a chiropractor, nor any medical records relevant to the claimed neck, back, and/or right hip conditions, have been associated with the claims file. As such, remand is necessary to obtain any relevant treatment records. See 38 C.F.R. § 3.159(c). 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran was afforded a VA mental disorders examination in May 2016. The examiner determined that the Veteran did not currently, and had not ever been diagnosed with a mental disorder. In the November 2019 Board hearing, the Veteran testified that he worked at the prison at Fort Dix, which was located next to an Air Force base, and in 2015, he saw a counselor for troubles at work. His supervisor noticed that he was getting very irritable on days with increased flight traffic at the Air Force base, and had him go through his Employ Systems Program to work with a counselor. No medical records from the counselor, nor any medical records relevant to the claimed psychiatric disorder other than the VA examination report, have been associated with the claims file. As such, remand is necessary to obtain any relevant treatment records. See 38 C.F.R. § 3.159(c). 5. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran contends that he has a deviated septum, which had to be the result of the in-service MVA, and that he has had sleeping problems for about 10 years. He always felt tired in service, and had a current diagnosis of sleep apnea. Private medical treatment records indicate that the Veteran has a diagnosis of obstructive sleep apnea. As such, the Board finds that a medical opinion should be obtained to determine the nature and etiology of any diagnosed sleep disorder(s). See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d). 6. Entitlement to an increased rating for bilateral hearing loss is remanded. The Veteran was most recently examined for this disability in March 2016 and there is evidence that the symptoms have increased in severity since that time. Specifically, in the November 2019 Board hearing, the Veteran testified that his hearing had gotten worse, including having a harder time hearing his wife at home and he had a hard time hearing in social or public situations with a lot of background noise. He also had an upcoming appointment to get another hearing aid. As such, due to the evidence of worsening since the last examination, as well as the five years since the last examination, a new audiological examination is needed to determine the severity of the service-connected hearing loss. See 38 U.S.C. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 84 (2008). In addition, remand is necessary to obtain any outstanding relevant treatment records. See 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide sufficient information and, if necessary, authorization to enable the AOJ to obtain any relevant outstanding non-VA treatment records, to include any treatment by a chiropractor, mental health counselor, and/or audiologist. The AOJ should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. 2. Send the claims file to an appropriate VA examiner and ask the examiner to review the record and prepare a medical opinion on the etiology of the claimed sleep apnea. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on this claim. After reviewing the entire record, the examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that any diagnosed sleep apnea had its origin during, or is in some way the result of the Veteran’s periods of active military service, to include consideration and discussion of the Veteran’s contention that his in-service motor vehicle accident caused a deviated nasal septum. All opinions and conclusions expressed must be supported by a complete rationale in a report. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. Schedule the Veteran for a VA audiology examination to determine the current nature and severity of the service-connected hearing loss. The claims folder, including a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations deemed necessary should be performed. The examiner should report the severity of the Veteran’s hearing loss in terms conforming to the applicable rating criteria. The examiner should also describe the functional effects caused by the Veteran’s hearing loss, to include any effects on employment and daily life. All opinions and conclusions expressed must be supported by a complete rationale in a report. 4. After completing all indicated development, and any additional development deemed necessary, to include obtaining any additional necessary medical opinions, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.