Citation Nr: 21040139 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-11 023 DATE: July 2, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is granted. Entitlement to an increased rating of 70 percent for posttraumatic stress disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a respiratory condition is remanded. Entitlement to service connection for bruxism, to include as secondary to a TBI is remanded. Entitlement to an initial increased rating in excess of 10 percent for a right shoulder disability is remanded. Entitlement to an initial compensable rating for a low back disability is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU). FINDINGS OF FACT 1. The Veteran's traumatic brain injury, to include residuals of a TBI such as headaches, are etiologically linked to an in-service head injury from an improvised explosive device. 2. The Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303(a). 2. The criteria for a rating for PTSD of 70 percent, but no higher, for the entirety of the appeal period have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 2006 to March 2014. The Veteran testified before the undersigned Veteran's Law Judge at a hearing in March 2021. A transcript of the hearing is in the record. The Board has re-characterized the Veteran's dental claim to a claim for bruxism, as he clarified at his hearing that this was the disability for which he was seeking service connection, to include as secondary to his TBI. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, supra; and Buchanan v. Nicholson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).). 1. Entitlement to service connection for a traumatic brain injury There is no dispute that the Veteran suffered a head injury in service as documented by his service treatment record from December 2010 wherein the Veteran exposed to an improvised explosive device blast in Afghanistan. In term of a current disability and nexus, the Board finds that the VA treatment records from April 2014 wherein a VA clinical psychologist found that the Veteran was positive for TBI on the basis of the blast force exposure he experienced while serving on active duty. In reviewing the evidence, the Board notes that most of the probative value of a medical opinion comes from its reasoning and the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the VA clinician documented the Veteran's exposure to blast force and related to that trauma to his positive diagnosis of TBI. Considering the foregoing, the Board finds that this opinion applies valid medical analysis to the significant facts of this case, namely the effect of an explosion on the human body. Considering the foregoing, the Board finds that service connection for a TBI is warranted. 2. Entitlement to an increased rating of 70 percent for posttraumatic stress disorder Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD has been evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130. The General Rating Formula for psychiatric disabilities provides that occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships is rated 50 percent disabling. Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals, which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships is rated 70 percent disabling. Total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name is rated a maximum 100 percent disabling. Use of the term "such symptoms as" in § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed.Cir.2013); see Sellers v. Principi, 372 F.3d 1318, 132627 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and because the plain language of the regulation makes clear that "the veteran's impairment must be 'due to' those symptoms," a veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 11617. Merits The evidence supports an increased rating of 70 percent for the Veteran's PTSD. In so deciding, the Board highlights the Veteran's September 2015 VA examination wherein the examiner reported that the Veteran experiences angry outburst, recurrent involuntary flashbacks with dissociative reactions, and persistent inability to experience positive emotions. Importantly, the examiner in September 2015 concluded that the Veteran's PTSD symptoms described above cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran's March 2021 testimony, which the Board finds credible, includes reports of his symptoms which indicates that he has isolated himself socially, and has had disciplinary action taken against him in the past for irritable outbursts while working. The Board also notes that the Veteran's father wrote to the VA in November 2017 to express his concern for similar symptoms. He wrote that he believed that the Veteran's subsequent combat tours were made without regard for his life, "at this point when he talked of this period I knew he didn't' care if he lived or died and truly believed he would die in battle." His father also similarly noted that the Veteran isolates himself. The examiner also noted severe limitation in social function and difficulty with obsessive rituals such as nightly patrols of the neighborhood. Thus, the Board finds that the Veteran's father is credible and competent to report his observations of the Veteran's behaviour. Moreover, the Board finds that this evidence supports the Veteran's 70 percent disability rating during the entirety of the appeal period. While the evidence of record warrants a 70 percent disability rating for the Veteran's PTSD, there is no indication of total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran is not beset by gross impairment in thought processes. There is no indication he has engaged in grossly inappropriate behavior, there is no objective evidence of memory loss or cognitive defects. Although he has experienced flashback, this symptom is adequately compensated by the 70 percent rating assigned. Moreover, his symptoms do not equate in frequency, severity or duration to total occupational or social impairment as required for a 100 percent rating. Although the Veteran has social impairment it is not total. The evidence of record indicates that this psychiatric condition does not prevent him from carrying out activities of daily living or maintaining some level of social function albeit limited. Thus, he has not demonstrated symptomatology that equates in frequency, duration or severity to equate to a 100 percent rating. Accordingly, the Board does not find that the criteria for a 100 percent rating are satisfied in this case. In sum, the Veteran's symptomatology, as captured by the medical record covering the period at issue, warrants a 70 percent disability rating but no higher. Accordingly, a rating of 70 percent for PTSD is warranted for the entirety of the appeal period. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. Regrettably, the Board has found that additional evidentiary development is warranted before adjudication of the Veteran's claim can proceed. In particular, the Board notes that a VA examination from September 2015 provided a positive nexus and found that the Veteran had an in-service incurrence of acoustic trauma; however, the examination accompanying audiometric finding did not meet the regulatory definition of impaired hearing under 38 C.F.R. § 3.385. Importantly, the Board notes that the VA examination report contained a notation that he had reviewed "CPRS" (i.e. VA treatment records) which were not contained in the claims file at the time of the examination. As these treatment records were never identified by the examiner, the Board cannot ensure that same evidence reviewed by the examiner can be likewise reviewed by the Board. As such, the Board finds the VA examination, in part, inadequate. The United States Court of Appeal for Veterans Claims has held that that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Considering the foregoing, the Board finds that a new VA examination is warranted to determine if the Veteran meets the criteria for hearing loss for VA purposes. Entitlement to service connection for a bilateral knee disability is remanded. Regrettably, the Board has found that additional evidentiary development is warranted before adjudication of the Veteran's claim can proceed. The Board notes that the Veteran was provided a VA examination in March 2014; however, upon review, the Board notes that the VA examiner did not address the Veteran's lay statement concerning his knee pain in service. He simply wrote "patella femoral syndrome is not caused by marching and running in the service." He did not address the nature of the Veteran's service (i.e. his combat tours) or the Veteran's statement concerning pain in service and since service. For these reasons, the Board finds that a new VA examination is warranted. The United States Court of Appeal for Veterans Claims has held that that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 4. Entitlement to service connection for a respiratory condition is remanded. Regrettably, the Board has found that additional evidentiary development is warranted before adjudication of the Veteran's claim can proceed. The Veteran has not been provided a VA examination to address his contention that his respiratory condition is related to exposure to "black mold" and "burn pits" while on active duty service. The Board notes that the Veteran testified that he suffers symptoms of respiratory condition that began in service and has continued to the present day. The Board finds that the Veteran's testimony is credible. However, the Veteran does not have the requisite competencies to determine if these respiratory symptoms are a disability and whether they are etiologically related to either his exposure to "black mold" or "burn pits." Considering the foregoing, the Board finds that the Veteran should be provided a VA examination to further investigate his contentions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Entitlement to service connection for bruxism, to include as secondary to his TBI. The Board has service-connected the Veteran's TBI in this decision, during his hearing the Veteran asserted that he believed that his bruxism was secondary to his TBI. Treatment records also suggest a possible relationship between the two conditions. As a result, the Board finds that an opinion is necessary to determine the etiology of the Veteran's bruxism. 38 C.F.R. § 3.159. 6. Entitlement to an initial increased rating in excess of 10 percent for a right shoulder disability and entitlement to an initial compensable rating for a low back disability are remanded. The Veteran has testified in his March 2021 hearing that since his last VA examination that his disabilities have worsened. The Veteran's last VA examination, to determine the status of his right shoulder and low back disabilities, was in October 2015. As a result, and given the time that has transpired since his last examination, the Board finds that a new examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). VA's General Counsel has similarly indicated that when a Veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). Considering the foregoing, the Board finds that a VA examination is warranted to determine the current nature and severity of the Veteran's right shoulder and low back disabilities. 7. Entitlement to a total disability rating due to individual unemployability (TDIU). The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. Provide the Veteran with a VA Form 21-8940 and request that he complete the form and return it. 3. After the above development is accomplished, schedule the Veteran for appropriate VA examinations. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiners as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiners, and the results of any testing must be included in the examination report. (A) BILATERAL HEARING LOSS: After considering the pertinent information in the record in its entirety, the VA examiner should conduct the test necessary to identify any bilateral hearing loss. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any bilateral hearing loss identified was incurred or aggravated by his active duty (B) BILATERAL KNEES: After considering the pertinent information in the record in its entirety, the VA examiner should identify any bilateral knee disabilities present. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any bilateral knee disability identified was incurred or aggravated by his active duty. In providing an opinion, the examiner must consider the Veteran's lay statements regarding pain in his knees in and since service and the nature of his service (i.e. his combat action ribbon). (C) RESPIRATORY CONDITION: After considering the pertinent information in the record in its entirety, the VA examiner should identify any respiratory condition present. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that any respiratory condition identified was incurred or aggravated by his active duty. In providing an opinion the examiner should address the Veteran's lay statements concerning exposure to "black mold" while living at a military installation and his exposure to "burn pits" while serving in Iraq and Afghanistan. (D) BRUXISM: After considering the pertinent information in the record in its entirety, the examiner should provide an opinion as to whether it is at least as likely as not i.e. 50 percent probability or greater, that the Veteran's bruxism is related to his active service or to his service-connected TBI. (E) RIGHT SHOULDER: After considering the pertinent information in the record in its entirety, the VA examiner should determine the nature and severity of the Veteran's right shoulder disability. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joints in question and any paired joint must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The rationale for all opinions expressed must be provided. In particular, the examiner is directed to estimate the degree of functional loss during flareups and with repeated use over time, as represented by lost range of motion of the left knee. The examiner must elicit from the Veteran such information as is necessary to make such a determination. It is understood that any determination of functional loss in situations not under direct observation is an estimate, the furnishing of which may require the examiner to engage in a degree of speculation. Any opinion provided should be accompanied by a supporting rationale. (F) LOW BACK: After considering the pertinent information in the record in its entirety, the VA examiner should determine the nature and severity of the Veteran's low back disability. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joints in question and any paired joint must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The rationale for all opinions expressed must be provided. In particular, the examiner is directed to estimate the degree of functional loss during flareups and with repeated use over time, as represented by lost range of motion of the left knee. The examiner must elicit from the Veteran such information as is necessary to make such a determination. It is understood that any determination of functional loss in situations not under direct observation is an estimate, the furnishing of which may require the examiner to engage in a degree of speculation. Any opinion provided should be accompanied by a supporting rationale. 4. Complete any development deemed necessary to adjudicate the Veteran's claim for TDIU. 5. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 6. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Acosta, 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.