Citation Nr: 21026152 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 07-34 379 DATE: April 30, 2021 ORDER Service connection for a cognitive disability with memory loss and neurological problems is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the probative evidence establishes that the Veteran’s cognitive disability with memory loss and neurological problems was incurred during active duty service. CONCLUSION OF LAW The criteria for service connection for a cognitive disability with memory loss and neurological problems have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from December 1970 to July 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2008, the Veteran testified at a hearing before a Decision Review Officer at the RO. In May 2009, he testified at a Travel Board hearing before the undersigned Veterans Law Judge. Transcripts of those hearings are of record. In October 2009 and April 2011, the Board remanded the current issues for further evidentiary development. In October 2012, the Board issued a decision that denied entitlement to a TDIU and to service connection for a cognitive disability. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2014, the Court issued a memorandum decision vacating and remanding the Board’s decision with respect to both issues. The Board remanded the claims for additional development in March 2015, July 2016, June 2018, and October 2020. 1. Service connection for a cognitive disability with memory loss and neurological problems The Veteran contends that he currently suffers from cognitive difficulties, memory loss, and neurological problems due to being exposed to carbon monoxide in his family home while on active duty in September 1984; sustaining a left orbital fracture on active duty in January 1985 when he fell and hit his head while getting out of a bathtub; and/or having service-connected generalized anxiety disorder. The in-service incidents have been corroborated by the evidence of record. The Court’s memorandum decision concluded that the Board’s reliance on VA opinions obtained in March 2009 and April 2010 was misplaced since they did not consider the Veteran’s military records and did not accurately addresses the factual circumstances around the Veteran’s claim. The opinions of record dated prior to the Court’s memorandum decision will not be discussed. This leaves a private opinion provided by Dr. G. in January 2015 and VA opinions obtained on remand in October 2016, May 2017, July 2020, and October 2020. Dr. G. concluded that it is more likely than not that the Veteran’s cognitive impairments were caused by incidents that occurred during his military service, with the head injury being the most probable cause of them. This opinion noted that that the Veteran’s in-service performance evaluations revealed that his performance was excellent both before and after the 1984 (carbon monoxide) and 1985 (head injury) incidents, but also considered the Veteran’s statements that he took longer to do paperwork, which was the main component of his in-service job; that he stayed at work after the day was over and would often work two or three hours at night to catch up; that he found it difficult to study for an exam that would allow for a promotion despite doing well on this type of exam in the past; and that he also had difficulty learning to operate the computers, which increasingly became necessary for his work, and left the military before he had planned to do so because of this. In July 2016, Dr. G. reported that there was no change to the opinion provided in January 2015 after reviewing the Veteran’s complete file. In its June 2018 remand, the Board concluded that the opinions provided in October 2016 and May 2017 were confusing and that clarification was needed. The clarification was provided in July 2020 by a different examiner, who was of the opinion that it is less likely than not that the Veteran’s mild neurocognitive disorder had its onset during service given the length of time between the Veteran’s traumatic brain injury (TBI) in service and the first objective evidence of cognitive impairment. The examiner noted that the private opinion obtained in January 2015 from Dr. G. made no mention of the lack of memory complaints in service or on the Veteran’s separation examination, and that Dr. G. did not address the lack of any objective evidence of cognitive impairment until 12 years after the Veteran’s in-service head injury. The examiner also noted that according to the Veteran’s available records, there was no change in the Veteran’s performance evaluations after his head injury in the service, which would suggest there was no change in cognitive functioning after the 1984 and 1985 incidents, and that his separation examination was negative for any complaints of memory impairment, further indicating a lack of cognitive impairment in service. Since the July 2020 VA examiner based the opinion provided strictly on the lack of objective documentation, whereas Dr. G. considered the Veteran’s statements regarding his functioning after the 1984 (carbon monoxide) and 1985 (head injury) in-service incidents, the Board remanded the claim to obtain an addendum from the July 2020 VA examiner that considered the subjective evidence as reported by the Veteran regarding problems following the documented in-service incidents. The addendum opinion, that it is less likely than not that the Veteran’s mild neurocognitive disorder manifested in service or is otherwise related to service, was provided in October 2020. The examiner explained that to be diagnosed with a neurocognitive disorder, there needs to be objective impairment on cognitive testing and that there was no objective evidence to support the Veteran’s claim that his neurocognitive disorder started in service. The examiner noted that the Veteran reported experiencing cognitive impairment in the service (as noted in the opinion request), but that his military records do not support this claim. The examiner again cited that there was no change in the Veteran’s performance evaluations after his head injury in the service, which would suggest there was no change in cognitive functioning after the 1984 and 1985 incidents, and again noted that his separation examination was negative for any complaints of memory impairment, further indicating a lack of cognitive impairment in service. The examiner concluded that without objective evidence of impairment, the Veteran’s subjective self-report is not sufficient to support that his neurocognitive disorder started in the service or is otherwise related to his service. The Board has twice attempted to get a VA opinion that addresses the Veteran’s statements that were considered by Dr. G. Since the VA examiner who provided the July 2020 and October 2020 opinions failed to do so, that leaves only Dr. G’s opinion of record, which the Board finds to be of high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Since the only probative opinion of record establishes that the Veteran’s cognitive impairments were caused by incidents that occurred during his military service, with the head injury being the most probable cause of them, the Board resolves all doubt in favor of the Veteran by finding that his cognitive disability with memory loss and neurological problems was incurred during active duty service. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. The Veteran does not meet the schedular criteria for entitlement to a TDIU and, as such, his claim for entitlement to a TDIU is intertwined with the award of service connection for a cognitive disability with memory loss and neurological problems and the assignment of a rating for that disability. The matters are REMANDED for the following action: 1. Readjudicate the claim for entitlement to a TDIU after the award of service connection for a cognitive disability with memory loss and neurological problems is implemented and a rating for that disability is assigned. 2. If the claim for TDIU remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.