Citation Nr: 22062637 Decision Date: 11/08/22 Archive Date: 11/08/22 DOCKET NO. 16-43 035 DATE: November 8, 2022 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the appellant currently has a TBI which was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a TBI have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION§ The appellant served on active duty in the United States Army from April 1976 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) from October 2014 and December 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in October 2019. A Supplemental Statement of the Case (SSOC) was issued in September 2022. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). "To establish a right to compensation for a present disability, 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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for residuals of a TBI. The appellant contends that he sustained a TBI in 1977 or 1978 when he slipped and fell. He claims that he was knocked unconscious after he landed on the top left side of his forehead on the concrete floor. See Affidavit received December 2017. The appellant's service treatment records do not include records of treatment following this reported injury. At his January 1979 separation examination, however, the appellant completed a Report of Medical History on which he endorsed a history of a head injury . The examiner noted that the appellant reported a head injury in 1977 with loss of consciousness, but indicated that the appellant exhibited no sequalae from that reported injury. In support of his claim, the appellant submitted a July 2016 PTSD questionnaire completed by a private psychologist, Dr. T., who indicated that the appellant had a diagnosis of TBI due to a 1977 concussion with loss of consciousness. In connection with his claim of service connection, the appellant was afforded a TBI examination in November 2019, conducted by a physiatrist. The claims file was reviewed. Following examination of the appellant and review of the claims file, a TBI was diagnosed. The physiatrist noted that service treatment records showed that the appellant hit his head on a wood floor in 1977 and lost consciousness, but there was no sequalae. The appellant reported that he was drinking with his buddies and he lifted one of them over his head and fell, hitting his head on the floor. The appellant also reported that he has headaches from the fall. The physiatrist opined that the appellant had headaches attributable to a TBI. The physiatrist also noted that the appellant's medical records indicated that he had been seeing Dr. T., a psychologist, for the past three years for what Dr. T. called a TBI. The appellant's recall of events was the same as he had reported to Dr. T. The physiatrist stated that, although such an injury was not mentioned on a DD Form 13, Statement of Service, the appellant's separation examination report noted the head injury with loss of consciousness. The contracted physiatrist opined that it was less likely than not that the appellant's TBI had been incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner indicated "Head injury was less likely than not due to the 1979 incident, Veteran did not have head injury in 1979, however, medical records from 19077 show Veteran had a head injury with LOC. Medical records from Dr. [T] for past 3 years show that she was seeing him for a diagnosis of TBI." Given the ambiguities in the November 2019 opinion, the appellant was afforded another TBI examination in October 2020, which was conducted by another physiatrist. The claims file was reviewed. Following examination of the appellant and review of the claims file, it was determined that the appellant had not ever incurred a TBI and that he had no residuals of a TBI. The physiatrist noted that records discussed a 1977 event during which the appellant hit his head on a wood floor. The appellant did not recall all of the details. It was noted that he experienced a loss of consciousness and that he reported having headaches since the event. The examiner determined, however, that there were no symptoms or residuals attributable to a TBI. The physiatrist stated that, while there were a few notes to support the incurrence of a TBI, there were few records between 1977 and 2020 to suggest his current symptoms were due to a TBI. Rather, the appellant's history of mental health issues and alcohol abuse may explain his symptoms. The physiatrist opined that it was less likely than not that the appellant had a TBI or residuals thereof which was incurred in or was otherwise causally related to his active service because there were minimal clinical notes between 1977 and 2020 which discussed his head injury. Further, the appellant had several mental health disorders which may account for his symptoms. The appellant was afforded yet another TBI examination in August 2022 before another physiatrist. The claims file was reviewed. Following examination of the appellant and review of the claims file, it was determined that the appellant had not ever incurred a TBI and that he had no residuals of a TBI. The appellant reported a head injury when he hit his head on a wooden floor in 1977 while playing with friends. There were no service treatment records available to assess the severity of the head injury and the treatment received at the time of the incident. There was no continuity of symptoms from service to the present. Medical records review revealed that the appellant has been evaluated and treated for multiple mental disorders and that he has been treated with opioids for prolonged periods for chronic pain management. Neuropsychological testing was within normal limits. The physiatrist explained that there no findings, signs, or symptoms to support a diagnosis at present. He appellant had minimal clinical notes from between 1977 and 2020 which discussed his head injury. Further, the appellant had several mental health disorders, in addition to long-term opioid use with anti-psychotic medications, which may account for his symptoms. The physiatrist opined that it was less likely than not that the appellant had a TBI which was incurred in or was otherwise causally related to his active service. There were no service treatment records available to assess the severity of the head injury and the treatment received at the time of the incident. There was no continuity of symptoms from service to the present. The physiatrist noted that the July 2016 private evaluation, conducted by a psychologist, had been reviewed. The physiatrist discounted the TBI diagnosis rendered by Dr. T. because Dr. T. was not a M.D. who was trained in the TBI sub-specialty. Additionally, the appellant had been examined by an M.D. who had the proper training but that M.D. determined the appellant did not have a diagnosed TBI in December 2015. There was insufficient documentation/information available with which to ascertain a likely cause in the appellant's case. The physiatrist also explained that head injuries of any level will fairly quickly stabilize and improve. Cognitive issues would have been a consistent concern since the injury and service treatment records were negative for any mentions of that sort. Based upon the available medical records and the appellant's descriptions of events, the appellant most likely suffered a mild closed head injury without any residuals requiring long term treatment. Applying the facts to the criteria set forth above, the Board finds that service connection for residuals of a TBI, to include headaches, is warranted. Although the October 2020 and August 2022 physiatrists determined that the appellant did not have a TBI or any current residuals, neither commented upon the diagnosis rendered by the November 2019 physiatrist of TBI with residual headaches. The October 2020 negative opinion is speculative in nature insofar as it attempts to suggest other possible causes "may" account for the appellant's symptoms. It is well established that medical opinions that are inconclusive in nature do not provide a sufficient basis upon which to support a claim. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (using the words "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting a Veteran's death was not sufficient). The August 2022 physiatrist echoes this speculative opinion. The August 2022 physiatrist also appears to be relying upon an inaccurate factual premise that there was a lack of continuity of symptomatology since the 1977 head injury. While the appellant indeed reported during a January 2011 TBI examination that he only had a 12-year history of headaches and that his memory loss problems began at the same time, he has also contended that he has experienced headaches since the 1977 head injury. Even if the Board were to find the appellant's reports of continuing symptoms not credible, the August 2022 opinion is still inadequate because it does not provide an explanation as to why a physiatrist diagnosed a TBI in November 2019. The November 2019 contracted physiatrist essentially provided a positive etiological opinion for the appellant's current residuals of a TBI to include headaches by attributing such to the appellant's 1977 in-service head injury. The negative opinion rendered was simply due to the discrepancies in whether service treatment records stated that the head injury occurred in 1977 or 1979. At minimum, the November 2019 opinion is entitled to approximately equal probative weight as the October 2020 and August 2022 opinions together. As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the evidence must be persuasively against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for residuals of a TBI. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to service connection for erectile dysfunction. As delineated above, service connection for residuals of a TBI has been granted. At present, the record on appeal reflects that the appellant's TBI symptoms consist of subjective symptoms only, particularly headaches. The appellant, however, contends that he developed an acquired psychiatric disability due to his TBI. He further contends that he developed erectile dysfunction due to his acquired psychiatric disability. The record on appeal reflects multiple psychiatric diagnoses and symptoms, including major depressive disorder, PTSD, panic disorder, agoraphobia, nightmare disorder, and anxiety, but VA has not yet obtained an opinion as to whether any current psychiatric disability is causally related to or aggravated by the now service-connected TBI. The matters are REMANDED for the following action: 1. Schedule the appellant for an examination with a clinician to determine the nature and etiology of the appellant's claimed acquired psychiatric disability. Access to the claims file should be made available to the examiner for review. After reviewing the claims file and examining the appellant, the examiner should delineate all psychiatric disabilities. For each identified psychiatric disability, the examiner should opine as to the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that an acquired psychiatric disability had its onset in service or is otherwise related to the appellant's active service, to include the 1977 head injury, or the appellant's reports at his December 1978 separation examination that he had frequent trouble getting to sleep in the barracks? If not, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that an acquired psychiatric disability is proximately due to or the result of service-connected TBI? If neither, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that an acquired psychiatric disability was aggravated (made worse) by service-connected TBI? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. 2. If it is determined that service connection for an acquired psychiatric disability is warranted, obtain an opinion from a clinician as to the nature and etiology of the appellant's claimed erectile dysfunction. The clinician should opine as to the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that erectile dysfunction is proximately due to or the result of a service-connected acquired psychiatric disability, to include medications and treatment for such? If not, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that erectile dysfunction was aggravated (made worse) by a service-connected acquired psychiatric disability to include medications and treatment for such? If aggravation is found, the examiner must attempt to establish a baseline level of severity prior to aggravation. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.