Citation Nr: 22015182 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 20-18 056 DATE: March 16, 2022 ORDER The claim for service connection for an acquired psychiatric disorder is granted. The claim for service connection for chronic traumatic encephalopathy (CTE) is granted. The claim for service connection for headaches is granted. The claim for service connection sleep apnea as secondary to an acquired psychiatric disorder is granted. Entitlement to a 10 percent initial rating for a traumatic brain injury (TBI) is granted. Entitlement to an initial rating in excess of 10 percent for a TBI is denied. REMANDED The claim for service connection for bilateral hearing loss to include as secondary to a TBI is remanded. The claim for service connection for bilateral tinnitus to include as secondary to a TBI is remanded. The claim for service connection for vertigo to include as secondary to a TBI is remanded. The claim for service connection for an Arnold Chiari malformation to include as secondary to a TBI is remanded. The claim for service connection for a lumbar spine disability is remanded. The claim for service connection for a right ankle disorder is remanded. The claim for service connection for a right knee disorder is remanded. The claim for service connection for a right shoulder condition is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with post-traumatic stress disorder (PTSD) and major depressive disorder and there is a medical opinion linking these conditions to service. 2. There is current evidence of CTE and headaches and there are medical opinions of record linking these conditions to service. 3. The record reflects current evidence of sleep apnea and there is medical evidence of record linking such to an acquired psychiatric disorder. 4. The highest facet of TBI demonstrated on examination is "1" and the Veteran's TBI does not result in an altered state of consciousness. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, CTE, and headaches are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). 2. The criteria for service connection for a sleep apnea as secondary to an acquired psychiatric disorder are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). 3. The criteria for 10 percent initial rating for TBI are met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8045 (2021). 4. The criteria for an initial rating in excess of 10 percent for TBI are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8045 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1996 to October 1996 and December 1996 to March 1997. I. Service Connection Claims A. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application. Id. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). B. Analysis The record reflects a December 2019 statement by a private psychologist finding that the Veteran has PTSD and major depressive disorder that "more likely than not being in military service." Also of record is a February 2019 opinion by a VA physician finding that the Veteran has CTE due to head injuries sustained in service and a March 2020 statement from private physician finding it as likely as not that the Veteran's headaches began in service as a result of his TBI sustained therein [for which service connection has been granted.] Finally, the record includes a March 2020 statement from a private physician finding that the Veteran has sleep apnea due to his PTSD and depression as well as a medical treatise received in April 2020 which concluded that that sleep apnea is associated with a higher prevalence of psychiatric conditions. While there is some negative evidence of record with respect to the claims for service connection adjudicated herein, the above evidence at a minimum places the positive and negative evidence in approximate balance with respect to the matters of whether the Veteran has an acquired psychiatric disorder, CTE, or headaches that was incurred in service and the matter of whether sleep apnea is proximately due to or a result of an acquired psychiatric disorder. As such, and after resolving all reasonable doubt in the Veteran's favor, the undersigned finds that service connection for acquired psychiatric disorder, CTE, and headaches is warranted, as is service connection for sleep apnea as secondary to an acquired psychiatric disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, Lynch, supra. II. Increased Rating for TBI A. Legal Criteria Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. TBI is rated under 38 C.F.R. § 4.124a, DC 8045, which provides there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which DC 8045 notes is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all these brain functions may be affected with a cognitive impairment, and some functions may be affected more severely than others. Symptoms may fluctuate in severity from day to day. Adjudicators are to rate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to rate subjective residual TBI symptoms, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, they are to separately rate any residual with a distinct diagnosis that may be rated under another Diagnostic Code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Adjudicators are to rate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Adjudicators are to rate physical (including neurological) dysfunction based on the following list, under an appropriate Diagnostic Code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, adjudicators are to rate under the most appropriate Diagnostic Code. Adjudicators are to rate each condition separately, as long as the same signs and symptoms are not used to support more than one rating and combine under § 4.25 the ratings for each separately rated condition. The rating assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the rating for a single condition for purposes of combining with other disability ratings. Id. Adjudicators are to consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Adjudicators are to assign a 100-percent rating if "total" is the level of evaluation for one or more facets. If no facet is rated as "total," adjudicators are to assign the overall percentage rating based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent rating if 3 is the highest level of evaluation for any facet. Id. B. Analysis As set forth above, service connection has been granted for a TBI and the appeal with respect to this matter is based on disagreement with the initial noncompensable rating assigned for this disability under DC 8045 by the November 2015 rating decision which granted service connection for TBI. This decision was preceded by findingsas pertinent to the rating criteria set forth at DC 8045as follows from a November 2015 TBI examination: A level of severity of "1" for the Memory, Attention, Concentration, Executive Functions Facet based on there being a complaint of mild memory loss but without objective evidence on testing. A level of severity of "0" for the Judgment Facet based on a finding that the Veteran's judgment was normal. A level of severity of "0" for the Social Interaction Facet based on the finding that the Veteran's Social interaction was routinely appropriate. A level of severity of "0" for the Orientation Facet based on the fact that the Veteran was shown to be always oriented to person, time, place, and situation. A level of severity of "0" for the Motor Activity (with intact motor and sensory system) Facet based on the finding of normal motor activity. A level of severity of "0" for the Visual Spatial Orientation Facet based on the finding that the Veteran's special orientation was normal. A level of severity of "0" for the Subjective Symptoms Facet based on finding that there were no subjective symptoms associated with the Veteran's TBI. A level of severity of "0" for the Neurobehavioral Effects Facet based on a finding that there were no neurobehavioral effects of the Veteran's TBI. A level of severity of "0" for the Communication Facet based on a finding that the Veteran was found to be able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. Given the above, and as the November 2015 VA TBI examination also noted that there was no altered consciousness, a 10 percent initial rating is warranted for the Veteran's TBI as the highest severity of any facet of TBI under the criteria set forth at DC 8045 demonstrated at the November 2015 VA TBI examination was "1" corresponding to the Memory, Attention, Concentration, Executive Functions Facet. As for an initial rating in excess of 10 percent, because the severity of the remaining facets considered at the November 2015 VA TBI examination were all "0," and there was no altered consciousness shown at this examination, the highest assignable rating for the Veteran's TBI based on the findings from this examination is 10 percent with application of DC 8045. A rating in excess of 10 percent would also not be warranted based on the findings from a February 2018 VA TBI examination, which reflected a level of "0" in severity for each of the facets of TBI listed at DC 8045 and again demonstrated no altered consciousness. As such, an initial rating in excess of 10 percent for the Veteran's TBI cannot be assigned. 38 C.F.R. § 4.124a, DC 8045. In finding that an initial rating in excess of 10 percent for TBI is not warranted, the undersigned observes that she has carefully considered the Veteran's contentions with respect to the nature of his TBI and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. However, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the undersigned accepts the Veteran's testimony with regard to the matters he is competent to address, she places more probative weight upon the competent medical evidence with regard to the specialized evaluation of functional impairment; namely, the assessments of the severity of disability due to the service connected TBI addressed above. Finally, in determining that an initial rating in excess of 10 percent for TBI is not warranted, the undersigned has considered the doctrine of reasonable doubt but finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for TBI. As such, an initial rating in excess of 10 percent for TBI may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, Lynch. REASONS FOR REMAND First with respect to the claims for service connection for bilateral hearing loss, bilateral tinnitus, vertigo, and an Arnold Chiari malformation, the matter of whether service connection may be granted for these conditions as secondary to TBI has been raised by the record. As such, and while the undersigned recognizes that the Veteran failed to report to a February 2018 VA audiology examination to address his claims for service connection for bilateral hearing loss and tinnitus, in light of the fact that no development has been undertaken with respect to the theory of secondary service connection for these disabilities, the undersigned finds that the Veteran should be afforded one more opportunity to attend VA examinations addressing the claims for service connection for hearing loss and tinnitus that include opinions addressing the theory of secondary service connection so as to fulfill they duty to assist the Veteran. In addition, and as such examinations have not been scheduled for the Veteran, the Agency of Original Jurisdiction (AOJ) will also be requested to afford the Veteran VA examinations addressing the claims for service connection for vertigo and an Arnold Chiari malformation that include opinions with respect to direct and secondary service connection theories of entitlement so as to comply with the duty to assist. The AOJ will also be directed to obtain opinions as to whether bilateral hearing loss, bilateral tinnitus, vertigo, or an Arnold Chiari malformation are manifestations of the Veteran's TBI. With respect to the claim for service connection for a lumbar spine disability, the Veteran was treated during service in December 1997 for a back contusion and numbness in the right leg felt to possibly be due to lumbar disc disease. While a November 2015 VA examination to address the claim for service connection for a lumbar spine disability found no diagnosable back condition, subsequent clinical evidence includes reports from several visits for chiropractic treatment of the lumbar spine in 2017 and a November 2017 VA outpatient treatment report references treatment for low back pain. As this evidence does suggest the presence of a lumbar spine disability after the November 2015 VA examination, the undersigned will direct the AOJ to afford the Veteran a VA examination that includes an opinion as to whether he has a current lumbar spine disability that was incurred in service so as fulfill the duty to assist. Finally with respect to the claims for service connection for right ankle, knee, and shoulder disabilities, the post service evidence reflects relevant complaints associated with these conditions, to include VA outpatient treatment report dated in 2017 and 2018, and as the Veteran is otherwise competent to report continuing symptomatology associated with these conditions from service to the present time, the undersigned will direct the AOJ to afford the Veteran VA examinations that includes opinions as to whether he has a current right ankle, knee, or shoulder disability that was incurred in service so as fulfill the duty to assist. For the reasons set forth above, this case is REMANDED for the following action: 1. Afford the Veteran VA examinations addressing the claims for bilateral hearing loss, bilateral tinnitus, vertigo, and an Arnold Chiari malformation following which the appropriate examiner is to provide opinions as follows: a) Whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran has bilateral hearing loss, bilateral tinnitus, vertigo, or an Arnold Chiari malformation that had its onset during active service. In rendering these opinions, each examiner should document consideration of the Veteran's report of continuity of relevant symptomatology from service to the present time, and not base a negative opinion solely on the lack of documented sufficient in-service symptomatology or pathology. With respect to an Arnold Chiari formation, should this represent a congenital condition of the Veteran, the examiner should state whether it is at least as likely as not (an approximate balance of negative and positive evidence) that there is any current disability associated with this condition that is the result of a superimposed injury suffered during service, to include the brain trauma sustained therein. b) Whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran has bilateral hearing loss, bilateral tinnitus, vertigo, or non-congenital disability associated with an Arnold Chiari malformation that is (1) proximately due to the Veteran's TBI, (2) aggravated by the Veteran's TBI, or (3) a manifestation of the Veteran's TBI. A complete rationale for these opinions should be rendered. 2. Afford the Veteran a VA examination addressing the claims for service connection for a lumbar spine and right ankle, knee, shoulder disabilities following which the examiner is to provide an opinion as to whether it is at least as likely as not (an approximate balance of negative and positive evidence) that the Veteran has a lumbar spine or right ankle, knee, or shoulder disability that had its onset during active service. In rendering these opinions, the examiner should document consideration of the Veteran's report of continuity of relevant symptomatology from service to the present time, and not base a negative opinion solely on the lack of documented sufficient in-service symptomatology or pathology. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.