Citation Nr: 21042838 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 18-23 316 DATE: July 14, 2021 REMANDED Entitlement to service connection for tension headaches is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1967 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. 1. Entitlement to service connection for tension headaches is remanded. 2. Entitlement to service connection for memory loss is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran is seeking to establish service connection for an acquired psychiatric disorder, tension headaches, and memory loss. Specifically, the Veteran contends his disabilities are the residuals of a traumatic brain injury (TBI) he suffered when he fell off a pole during training. Service treatment records reflect that the Veteran enlisted with no medical issues and was clinically evaluated as normal. In August 1967, the Veteran was brought to the emergency room in an incoherent fashion following a fall off a pole. He was seen by a psychiatrist who noted retardation of speech and bizarre movements of the arms, head, and neck. The Veteran would only respond to questions by slowly repeating over and over, "you're a nice guy." A complete physical was performed following the Veteran's admission; all vital signs were within normal limits, and other than waxy flexibility and bizarre movements of the head and neck, the rest of the physical examination was essentially negative and no abnormalities or pathologies were noted. Mental status exam showed negativism, waxy flexibility, and disorientation to time but not place. There was no other evidence of overt psychosis and no catatonia was noted. Following admission, the Veteran was given 25 mg. of Thorazine allowing him to converse, yet his jerky movements remained. His movements were described as being hysterical in nature, as was the apparent dissociative episode he experienced on admission. The Veteran had no recall of the events that precipitated his admission. He underwent a complete neurological examination and a second neurological consult, both with negative results. Thorazine was replaced by Artane in hopes of treating his head-jerking, which lessened for a day or two. However, the jerking returned, and the Veteran became more anxious and was put on Mellaril. Once it was determined that the chances of a repeat episode were minimal, the Veteran was transferred to medical holding. The Veteran's past history indicated that he had dropped out of the 10th grade due to repeated fainting spells. He had one previous hospitalization for observation for one week in October 1966. The Veteran failed the 2nd and 10th grade due to a poor academic record and was suspended from school twice for behavioral problems. The Veteran reported he had always been nervous and worried about events at home. He had first fainted one year ago during a dance and had since fainted about 10 times during periods of extreme anxiety. The Veteran was diagnosed with dissociative reaction, manifested by acute onset of incoherence, waxy flexibility, bizarre movements of the head, arms, and neck, lack of memory of incident, and continuing tic-like head movements, depression, psychomotor retardation, disorientation in time, a temporary marked speech retardation, severe but acute. The Veteran's predisposition was chronic, premorbid personality of a neurotic and hysterical type with a fall from a pole during training noted as a precipitating stress. Premorbid personality was noted to have existed prior to service. September 1967 Medical Board Proceedings noted that the Veteran suffered from a dissociative reaction, severe but acute, precipitated by falling from a pole during training. He was diagnosed with chronic premorbid personality of a hysterical neurotic type, which was found to be a moderate impairment that rendered the Veteran incapable of performing duty in light of the possibility of future similar episodes. It was determined that the Veteran was physically unfit for retention as a result of his condition, which was not incurred in or aggravated by service. On a September 1967 Report of Medical History for Medical Board Separation, the Veteran endorsed a history of a head injury, frequent trouble sleeping, nervous trouble, and loss of memory or amnesia. The Veteran indicated that he had difficulty with school studies and teachers because he "couldn't remember too good." He also indicated he had been a patient in a mental hospital or sanitorium before because of shortness of breath and falling out, the same as he did in service. The Veteran noted he had been hit by a truck when he was 6 years old. A September 1967 Report of Medical Examination noted a diagnosis of disassociate reaction existing prior to service. In a March 1968 correspondence, Dr. C. P. stated he had treated the Veteran in December 1967 as an out-patient after he had been beaten over the head with a chair. No obvious injuries were found but the Veteran had the subjective complaint of headache. He was treated with medication and asked to return the following morning if his headache had not improved. The Veteran did not return. Post-service treatment records note a history of alcohol and drug abuse, cerebrovascular accident (CVA) in 1993 with 36 hours in a coma, two myocardial infarctions in 1993 and 1994, placement of two stents in 2002, hypertension at times uncontrolled, and a September 2002 treatment record reflecting the Veteran's admission that he had a history of head traumas from playing football and was once knocked out for four hours. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claims. The Veteran was afforded a VA examination for mental disorders in April 2018. The VA examiner determined that the Veteran had a clear and convincingly diagnosed pre-service condition and it was less likely as not that it was originally incurred in service. The Board finds that this opinion is inadequate, as the examiner did not apply the correct legal standard, clear and unmistakable evidence, when opining that the Veteran had a preexisting psychiatric disability prior to service. Additionally, as the examiner noted that the Veteran's current diagnosis did not appear to be related in any way to his pre-military/military issues, it is unclear whether the Veteran's current diagnosed acquired psychiatric disorder preexisted service or if the Veteran's current disorder is a new condition. Therefore, remand is warranted for clarification. The Veteran was also afforded a VA examination for TBI residuals in April 2018. The VA examiner determined that the Veteran's memory deficits and fatigue were less likely related to his in-service TBI and more likely related to concurrent diagnoses such as mental health issues, stroke, and alcohol and substance abuse. No opinion was provided for the Veteran's tension headaches. As such, the Veteran's claim for memory loss must be remanded as well, as it is inextricably intertwined with his claim for an acquired psychiatric disorder and an opinion regarding tension headaches must be provided. Finally, there is an indication that the Veteran may be in receipt of or have applied for Social Security Administration (SSA) disability benefits based on his claimed disabilities. As these records could be relevant to the Veteran's claims, the AOJ should obtain all existing records from the SSA pertaining to the Veteran's claim for disability benefits. The matters are REMANDED for the following action: 1. Contact the Social Security Administration and obtain any records pertaining to the Veteran's claim for disability benefits. Add all such records to the claims file, and appropriately document if such records are unavailable. 2. Obtain an addendum opinion from the April 2018 VA examiner or, if unavailable, another appropriate clinician, regarding the Veteran's acquired psychiatric disorder. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a) List all currently diagnosed psychiatric disorders, to include persistent depressive disorder with anxious distress, adjustment disorder with mixed anxiety and depression, and all other diagnoses made during the course of this appeal. b) Did the Veteran's currently diagnosed acquired psychiatric disorder clearly and unmistakably (undebatable) preexist active duty service? An opinion should be given for each currently diagnosed psychiatric disorder. c) If the Veteran's currently diagnosed acquired psychiatric disorder clearly and unmistakably preexisted active duty service, was the disability clearly and unmistakably NOT aggravated during active duty service? Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993). d) If the Veteran's currently diagnosed acquired psychiatric disorder has not been found to have preexisted active duty service, is it as least as likely as not (50 percent probability or greater) that the Veteran's acquired psychiatric disorder had its onset in or is otherwise etiologically related to active duty service? An opinion should be given for each currently diagnosed psychiatric disorder. In rendering the requested opinions, the examiner should note the April 2018 VA opinion finding that the Veteran's in-service fall from a pole as likely as not resulted in a mild to moderate TBI. The examiner's opinion must reflect consideration of the Veteran's reports of symptoms and the opinions provided cannot be based solely on the absence of in-service or post-service treatment records. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Obtain an addendum opinion from the April 2018 VA examiner or, if unavailable, another appropriate clinician, regarding the Veteran's tensions headaches. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: Is it as least as likely as not (50 percent probability or greater) that the Veteran's tension headaches had their onset in or are otherwise etiologically related to active duty service? The examiner's opinion must reflect consideration of the Veteran's reports of symptoms and the opinion provided cannot be based solely on the absence of in-service or post-service treatment records. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.