Citation Nr: 21026508 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-15 543A DATE: May 3, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for obstructive sleep apnea is denied. Entitlement to service connection for parkinsonism is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a TBI began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that COPD began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that obstructive sleep apnea began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that parkinsonism began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for obstructive sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for parkinsonism are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1970 to December 1981; and from March 1984 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2013 and September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in July 2018 for additional development. It is now before the Board for further appellate review. In the previous July 2018 Board remand, this matter was remanded to obtain outstanding medical records to include records from the National Naval Medical Center in Bethesda, Maryland, as well as private treatment records from St. John's, Newfoundland Hospital. As discussed more fully below, the Board also directed that the Veteran undergo examinations germane to his claims on appeal. The evidence of record shows that the VA has since made attempts to obtain these records and has added VA treatment records from April 2018 to June 2019; the Veteran was also scheduled for the requested examinations. Thus, there is substantial compliance with the Board's remand instructions. SERVICE CONNECTION Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a traumatic brain injury (TBI) The Veteran asserts that he is entitled to service connection for a TBI. Essentially, the Veteran contends that he was involved in a motor vehicle accident in the 1970s, and that the accident either led directly to his claimed conditions, or that the other conditions are secondary to his claimed TBI. The Veteran's wife submitted a statement in support of the Veteran's claim in May 2013. In her statement, she recounted an automobile accident that she and the Veteran sustained while he was stationed at the Argentia Naval Base in Canada in 1973. She stated that the Veteran suffered internal injuries and was knocked unconscious as a result of the collision. She reported that while there were no visible signs of head trauma, the Veteran was unconscious for several days after the accident. She also reported that the Veteran had issues with long-term and short-term memory loss for some time after regaining consciousness. Years since the accident, she stated that the Veteran has continued to complain to her about debilitating headaches. Review of the Veteran's service treatment records (STRs) reveal that, in March 1980, the Veteran complained of headaches, disorientation, short term memory loss, and confusion. The March 1980 STR also reported that the Veteran sustained head trauma in a 1972 automobile accident. The note stated that he was unconscious for 5 minutes. Private treatment records from November 2006 document the Veteran reporting a remote history of a TBI. The private treating physician noted that his history of a TBI could possibly be the cause of his poor concentration in memory. Private medical treatment records from April 2014 document the Veteran reporting history of TBI due to an automobile accident. He reported an increase in frequency of memory loss due to his TBI. In the previous July 2018 Board remand, the issue of entitlement to service connection for a TBI was remanded to obtain a medical examination to determine if the Veteran had a diagnosis of a TBI and if so, if his diagnosis was related to his in-service automobile accident. The Veteran was scheduled to appear for an examination in October 2019, however, he did not appear. A review of the claims file reflects that the Veteran was notified at his last updated address, and there is no record of any scheduling letters (or any subsequent communication from VA) being returned as undeliverable. The Veteran did not provide good cause for not appearing for the appointment and has not attempted to reschedule. As to this claim (and all others before the Board), the requested examination was necessary to determine both whether the Veteran has his claimed disabilities, as well as whether they are related to service. Thus, the Veteran failed to report for a VA examination that was necessary to make a decision in his claims for service connection; neither the Veteran nor his attorney has presented good cause as to why the Veteran did not attend these examinations, nor have they requested that such examinations be rescheduled. Pursuant to VA law, this claim must be rated on the evidence of record. 38 C.F.R. § 3.655. Although there is medical evidence suggesting that the Veteran was involved in an automobile accident (i.e., establishing the in-service incurrence criterion), there is no competent diagnosis of a TBI of record and no medical opinion stating that this TBI is at least as likely as not related to the automobile accident. Again, the Board sought to resolve these questions through a VA examination, but the Veteran did not attend his scheduled examinations. While the Board acknowledges the Veteran and his wife's lay statements, in this case, they are not competent to provide a nexus opinion regarding this issue as it is medically complex. Therefore, it is outside the competence of the Veteran and his wife in this case because the record does not show that they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Moreover, while private treatment records reference a history of a TBI, this is due to the Veteran's self-reporting and not due to an official diagnosis found in the Veteran's medical records. As such, the Board is unable to grant entitlement to service connection for a TBI in this instance. Thus, the Veteran's claim is denied. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for a TBI. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) The Veteran asserts that he is entitled to service connection for COPD. In the Veteran's February 2013 Notice of Disagreement, he asserted that his COPD was related either directly or indirectly to his 1973 automobile accident. The Veteran's STRs do not document any complaints, treatment, or diagnosis of COPD or any COPD related symptoms. In a December 1983 evaluation, the it was documented that the Veteran sustained a collapsed lung in the automobile accident with no sequelae. Private medical treatment records from June 2006 document a past medical history of chronic cough. The Veteran reported to his private treating physician that he did not have any chest pain, chest tightness, shortness of breath, or wheezing. He reported that he had a past history of hemothorax with chest tube requirements as well as a possible diaphragmatic rupture. The Veteran also reported that he did not smoke. Upon evaluation, the private treating physician noted that the Veteran was experiencing a lingering cough and opined that it was multifactorial with rhinitis with postnasal drip; gastroesophageal reflux disease and regurgitation; and previous infection being the likely causes. In June 2013 private treatment records the Veteran denied having a cough or wheezing. As above, the Veteran was scheduled for a VA examination to determine the nature and possible relationship to service of his claimed respiratory disorder. As the Veteran did not attend this examination (which, for the same analysis previously described, was necessary to decide his claim), this issue must be rated on the evidence of record. In this regard, while the evidence of record suggests that the Veteran had a respiratory condition in 2006, there is no further competent evidence to suggest that the Veteran is currently suffering from a respiratory condition. Further, while there is reference of an automobile accident that could possibly contribute to a current respiratory condition due to trauma sustained, there is no competent opinion of record to provide a nexus between any current respiratory condition and the Veteran's military service. Thus, the preponderance of the evidence is against the Veteran's claim. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for a respiratory condition, to include COPD. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for obstructive sleep apnea The Veteran asserts that he is entitled to service connection for sleep apnea. Specifically, in his February 2013 Notice of Disagreement, the Veteran asserted that his sleep apnea was related either directly or indirectly to his 1973 automobile accident. An October 2007 sleep study confirms the Veteran's diagnosis of obstructive sleep apnea. Although he has a current diagnosis, upon review of the Veteran's STRs, there is no documentation of complaints, treatment, or a diagnosis of sleep apnea or related symptoms. The Board remanded this issue in order to determine whether the Veteran's claimed disability is related to his active service. The Veteran did not attend this examination, and the claim must be rated on the evidence of record. In this regard, while the evidence confirms a current diagnosis, without a competent opinion, the evidence of record does not establish a nexus between the Veteran's obstructive sleep apnea and his active service. The Board has considered the Veteran's lay statements, however, as stated previously, the evidence does not show that the Veteran is competent to provide a probative opinion on an issue that is medically complex such as this. Thus, the preponderance of the evidence weighs against the Veteran's claim, and his claim is denied. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for sleep apnea. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 4. Entitlement to service connection for parkinsonism Lastly, the Veteran asserts that he is entitled to service connection for parkinsonism as a result of his 1973 in-service automobile accident. Review of the Veteran's STRs reveal a July 1980 neurology report. The Veteran complained of bifrontal headaches, temperature elevations, disorientation and confusion. Upon physical examination, the examiner determined that both general and neurologic examinations were benign. Private medical treatment records from February 2011 confirm a diagnosis of paralysis agitans, also referred to as parkinsonism and Parkinson's Disease. Records show that the Veteran has been receiving treatment for his disease. In May 2013, the Veteran's wife submitted a letter in support of the Veteran's claim. In her letter, she stated that the Veteran developed noticeable tremors in his fingers followed by painful muscle spasms. She stated that the Veteran had difficulty walking, difficulty performing simple tasks, developed a stutter, and lost his voice. As above, the Board remanded this issue in an attempt to schedule the Veteran for a VA examination to determine his current diagnosis and any possible relationship to service. As the Veteran did not attend this examination, this issue must also be rated on the evidence of record. Here, while the evidence confirms a current diagnosis, without a competent opinion, the evidence of record does not establish a nexus between the Veteran's current disability and his in-service automobile accident. The Board has considered the lay statements of the Veteran and his wife, however, as stated previously, the evidence does not show that they are competent to provide a probative opinion on a medically complex issue. Thus, the preponderance of the evidence weighs against the Veteran's claim, and his claim is denied. (Continued on next page) In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for parkinsonism. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.