Citation Nr: 21027150 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-20 143 DATE: May 4, 2021 REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for a neck disability (claimed as herniated discs cervical spine), to include as secondary to traumatic brain injury (TBI), is remanded. Entitlement to service connection for a back disability (claimed as herniated discs thoracolumbar spine), to include as secondary to a traumatic brain injury (TBI), is remanded. Entitlement to service connection for Parkinson's Disease, to include as secondary to traumatic brain injury (TBI), is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, adjustment disorder, major depressive disorder, somatoform disorder NOS, social anxiety disorder, and personality disorder, to include as secondary to traumatic brain injury (TBI), is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 1983 to July 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. These matters were previously before the Board in October 2018, where they were remanded for additional development. The Board notes that there was substantial compliance with its October 2018 remand directives. However so, the Board regrettably finds that another remand is necessary prior to readjudication of the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). While the Veteran's initial claim for an acquired psychiatric disability currently on appeal was adjudicated as entitlement for service connection for an acquired psychiatric disorder to include PTSD by the RO, the medical evidence of record reveals diagnoses/treatment for PTSD, anxiety disorder, adjustment disorder, major depressive disorder, somatoform disorder NOS, social anxiety disorder, and personality disorder. A claim for service connection for a mental disability may encompass claims for service connection of any medical disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the issue has been recharacterized as shown on the title page and encompasses all reasonably related acquired psychiatric disorder, to include PTSD, anxiety disorder, adjustment disorder, major depressive disorder, somatoform disorder NOS, social anxiety disorder, and personality disorder. 1. Entitlement to service connection for traumatic brain injury (TBI). The Veteran contends that his current TBI and/or residuals were incurred in or aggravated by his active duty service. As an initial matter, the Board notes that the record reflects the Veteran injured his head at the age of 3; however, there is no evidence of any residuals or sequalae noted prior to entry into service. Additionally, the Board further notes that, even though the Veteran's service treatment records reflect a notation of a concussion at the age of 3 with no sequalae on his entrance examination, this notation was only reflected on the report of medical history and not on examination. Therefore, in the absence of clear and unmistakable evidence to the contrary, the Board concludes that the Veteran does not have a pre-existing TBI condition. See 38 C.F.R. § 3.304(b)(1). Therefore, the Veteran is presumed sound upon entry and the question before the Board is one for direct service connection. In a February 2020 VA examination to assess the Veteran's headaches, the examiner diagnosed the Veteran with cluster headaches, and further remarked that these headaches could be related to TBI, anxiety, depression, or sleep apnea; however it is impossible to assess without speculation the exact cause of headaches. The examiner opined that the Veteran's condition was less likely than not related to service, as there is no objective evidence noted in the record reflecting a TBI condition during service. See C&P Exam, February 2020. Nevertheless, the Board finds this opinion to be inadequate for adjudicative purposes, as the examiner failed to address and/or discuss the objective March 1984 in-service notation of nausea, vomiting, and diarrhea associated with head trauma in the last 24 hours. Although the March 1984 STR attributes the symptoms to a virus, the Veteran's temperature was 95.4 at that time and noted as not exceeding 100 degrees. Therefore, upon remand, the VA physician should address whether the symptoms were related to a virus or the in-service head injury, as well as, the Veteran's lay statements of experiencing headaches since his in-service head injury. Therefore, the Board finds that the Veteran should be provided an addendum opinion on a direct basis, prior to readjudication of the claim. As such, a remand is necessary to address the matter discussed above. 2. Entitlement to service connection for a neck disability (claimed as herniated discs cervical spine), to include as secondary to traumatic brain injury (TBI), is remanded. The Veteran contends that his current neck disability is directly related to his active duty service; or is otherwise proximately caused or aggravated by his TBI. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In January 2020, the Veteran was afforded a VA examination and medical opinion to assess the current nature and etiology of his claimed neck disability. Upon examination, the examiner diagnosed the Veteran with C4-5, C5-6 small central disc herniations; however, provided an unfavorable opinion as to this condition being etiologically related to the Veteran's active duty service. See C&P Exam, January 2020. Subsequently, in October 2020, the Veteran was provided another VA medical opinion to reassess the current nature and etiology of his claimed neck disability. Upon review, this examiner also provided an unfavorable opinion as to the Veteran's condition being etiologically related to the Veteran's active duty service. See C&P Exam, October 2020. Nevertheless, the Board finds both, the January 2020 and October 2020, VA medical opinions to be inadequate for adjudicative purposes, as the January 2020 examiner failed to provide a rationale for her overall negative conclusion, and the October 2020 examiner improperly relied on the lack of documentation in the Veteran's STRs corroborating the in-service fall or residuals that took place during and after active duty service to provide the overall negative conclusion, without consideration or discussion of the Veteran's competent and credible lay statements of the nature and onset of symptoms and continuity of symptomatology. Additionally, while the Board acknowledges that the examiner referenced the Veteran's submitted lay statement from an eye witness to the fall, and further assumed that it did occur as described by this witness, the Board notes that the examiner failed to actually consider his assumption of occurrence as it relates to being the possible cause of the Veteran's current neck disability, thus, completely discrediting his own assumption and contradicting himself based on lack of corroboration in STRs. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to re-adjudication of the claim. Moreover, the Board notes that this claim is inextricably intertwined with the Veteran's TBI claim; and thus, adjudication shall be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Board finds that a remand is necessary to address the matters discussed above. 3. Entitlement to service connection for a back disability (claimed as herniated discs thoracolumbar spine), to include as secondary to a traumatic brain injury (TBI), is remanded. The Veteran contends that his current back disability is directly related to his active duty service; or is otherwise proximately caused or aggravated by his TBI. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In January 2020, the Veteran was afforded a VA examination and medical opinion to assess the current nature and etiology of his claimed back disability. Upon examination, the examiner diagnosed the Veteran with herniated disc L5-S1 minimal disc bulge with moderate hypertrophic facet and ligamentous degenerative changes with mild central stenosis and no sign of lateral recess compromise, mild disc space loss; however, provided an unfavorable opinion as to this condition being etiologically related to the Veteran's active duty service. See C&P Exam, January 2020. Subsequently, in October 2020, the Veteran was provided another VA medical opinion to reassess the current nature and etiology of his claimed back disability. Upon review, this examiner also provided an unfavorable opinion as to the Veteran's condition being etiologically related to the Veteran's active duty service. See C&P Exam, October 2020. Nevertheless, the Board finds both, the January 2020 and October 2020, VA medical opinions to be inadequate for adjudicative purposes, as the January 2020 examiner failed to provide a rationale for her overall negative conclusion, and the October 2020 examiner improperly relied on the lack of documentation in the Veteran's STRs corroborating the in-service fall and the lack of contemporaneous medical records in-service and post-service to provide the overall negative conclusion, with complete disregard for the Veteran's competent and credible lay statements of the nature and onset of symptoms. Additionally, the examiner failed to consider and/or address the Veteran's lay statements regarding continuity of symptomatology. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to re-adjudication of the claim. Moreover, the Board notes that this claim is inextricably intertwined with the Veteran's TBI claim; and thus, adjudication shall be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Board finds that a remand is necessary to address the matters discussed above. 4. Entitlement to service connection for Parkinson's Disease, to include as secondary to traumatic brain injury (TBI), is remanded. The Veteran contends that his current Parkinson's disease is directly related to his active duty service; or is otherwise proximately caused or aggravated by his TBI. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In January 2020, the Veteran was afforded a VA examination and medical opinion to assess the current nature and etiology of his claimed condition. Upon examination, the examiner noted that the Veteran has not now or ever been diagnosed with Parkinson's disease; therefore, provided an unfavorable opinion as to the claimed condition being etiologically related to the Veteran's active service based on the examiner's questioning of a Parkinson's disease diagnosis and noting there is no objective evidence to support a diagnosis. See C&P Exam, January 2020. Nevertheless, the Board finds this VA examination and opinion to be inadequate for adjudicative purposes, as the examiner inaccurately noted that the Veteran has not now or ever been diagnosed with Parkinson's disease. Additionally, the examiner's statement that there is no objective evidence to support a diagnosis is contradicted by the claims file revealing diagnoses of Parkinson's disease given by VA and private examiners. Moreover, the examiner's rationale questioning the diagnosis of Parkinson's disease based on the possibility of other causes of symptoms does not automatically dissolve the possibility of those symptoms also being that of Parkinson's disease, which the examiner failed to adequately address. Furthermore, if the examiner's intention was to state a change in diagnosis from those given in the record, he must explicitly state so and provide an adequate rationale as to why this is the case which was not done here. Therefore, the Board finds that the Veteran should be provided an addendum VA medical opinion, prior to re-adjudication of the claim. Lastly, the Board notes that this claim is inextricably intertwined with the Veteran's TBI claim; and thus, adjudication shall be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Board finds that a remand is necessary to address the matters discussed above. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, adjustment disorder, major depressive disorder, somatoform disorder NOS, social anxiety disorder, and personality disorder, to include as secondary to traumatic brain injury (TBI), is remanded. The Veteran contends that his current psychiatric disorders are directly related to his active duty service; or is otherwise proximately caused or aggravated by his TBI. After review of the record, the Board finds that additional development of the medical evidence is needed, in accordance with VA's duty to assist. In February 2020, the Veteran was afforded a VA examination and medical opinion to assess the current nature and etiology of his claimed condition. Upon examination, the examiner noted that the Veteran does not have PTSD; however, diagnoses of personality disorder and anxiety disorder were given. The examiner provided an unfavorable opinion as to the Veteran's personality disorder and/or anxiety disorder being etiologically related to his active duty service, noting that the Veteran's anxiety may have worsened during service but it is impossible to distinguish at this point when the onset of anxiety occurred, and further noting that personality disorders usually develop prior to adulthood and can be the result of multiple factors, but unlikely related to service. See C&P Exam, February 2020. Nevertheless, the Board finds this VA examination and opinion to be inadequate for adjudicative purposes, as the examiner failed to discuss the Veteran's competent and credible lay statements regarding the nature and onset of symptoms. Additionally, given the record contains diagnoses of other psychiatric disorders, to include the diagnosis of PTSD, adjustment disorder, major depressive disorder, somatoform disorder NOS, and social anxiety disorder, the examiner failed to properly assess each disorder of record as to whether it directly relates to the Veteran's active service, to include any reported in-service stressors. Therefore, the Board finds that the Veteran should be provided addendum VA medical opinions, prior to re-adjudication of the claim. Moreover, the Board notes that clarification is needed regarding whether a diagnosis of PTSD is present here, as even though the VA examiner noted no diagnosis, subsequent review of the claims file reveals a diagnosis of PTSD given in a May 2020 private psychiatric evaluation. Lastly, the Board notes that this claim is inextricably intertwined with the Veteran's TBI claim; and thus, adjudication shall be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the Board finds that a remand is necessary to address the matters discussed above. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. The Board notes that as development of the Veteran's disability claims before the Board may have an impact on the Veteran's TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom the Veteran has received treatment for his neck disability, back disability, Parkinson's disease, TBI, and any acquired psychiatric disorder, and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, and after all reported stressors have been developed (if necessary), provide the Veteran with addendum VA medical opinions by an appropriate clinician to determine the nature and etiology of a neck disability, back disability, Parkinson's disease, TBI, and any acquired psychiatric disorder. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran's TBI, to include residuals of headaches, had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service fall that occurred in March 1984. Please note: in the requested opinion, the examiner must address the March 1984 notation of the Veteran experiencing nausea, vomiting, and diarrhea within 24 hours of a head injury, but that was attributed to a virus at that time. The physician should note that although the March 1984 STR attributes the symptoms to a virus, the Veteran's temperature was 95.4 at that time and it was noted that his temperature did not exceed 100 degrees. The physician should address whether the symptoms were related to a virus or the in-service head injury in consideration of the documented temperature of the Veteran, as well as, the Veteran's reports of experiencing headaches since his in-service March 1984 fall. (b) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran's neck disability, had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service fall that occurred in March 1984. (c) If the answer to (a) is yes, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's neck disability was caused and/or aggravated (beyond the natural progression) by his TBI? Please note: the examiner must address both causation and aggravation in providing the opinions requested above. (d) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran's back disability, had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service fall that occurred in March 1984. (e) If the answer to (a) is yes, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability was caused and/or aggravated (beyond the natural progression) by his TBI? Please note: the examiner must address both causation and aggravation in providing the opinions requested above. (f) Opine whether it is at least as likely as not (50 percent or greater probability) the Veteran's Parkinson's disease, had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service fall that occurred in March 1984. (g) If the answer to (a) is yes, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Parkinson's disease was caused and/or aggravated (beyond the natural progression) by his TBI? Please note: the examiner must address both causation and aggravation in providing the opinions requested above. (h) Identify and clearly describe all diagnoses related to the Veteran's acquired psychiatric disorder, to include PTSD, anxiety disorder, adjustment disorder, major depressive disorder, somatoform disorder NOS, social anxiety disorder, and personality disorder. Please note: If a diagnosis of PTSD is not found, the examiner must explicitly state so, and provide discussion/opinion on the determination in change of diagnosis from that reflected in the May 2020 private examination. (i) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service stressor. (j) For all other acquired psychiatric disorders diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not (50 percent or greater probability) had its onset during any period of active duty service, or is otherwise etiologically related to his active duty service, to include the in-service fall that occurred in March 1984. (k) If the answer to (a) is yes, opine whether it is at least as likely as not (50 percent or greater probability) that any of the Veteran's acquired psychiatric disorders was caused and/or aggravated (beyond the natural progression) by his TBI? Please note: the examiner must address both causation and aggravation in providing the opinions requested above; and must provide opinions as to each psychiatric disorder diagnosed. (l) Any opinion should include a detailed rationale. The examiner should consider the entire claims file and discuss the Veteran's lay statements regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that he reports must be considered in formulating the requested opinion. (m) If the examiner is unable to offer the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Sarah Campbell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.