Citation Nr: 22015708 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 20-29 912A DATE: March 18, 2022 REMANDED The issue of entitlement to service connection for traumatic brain injury (TBI) is remanded. The issue of entitlement to service connection for vertigo is remanded. The issue of entitlement to service connection for a back disability is remanded. The issue of entitlement to service connection for radiculopathy or neuropathy of the right lower extremity is remanded. The issue of entitlement to service connection for radiculopathy or neuropathy of the left lower extremity is remanded. The issue of entitlement to service connection for neuropathy of the right upper extremity is remanded. The issue of entitlement to service connection for neuropathy of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1964 to December 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned at a Board hearing in November 2021. A transcript of the hearing is of record. 1. The issue of entitlement to service connection for TBI is remanded. Preliminarily, the Board notes that the Veteran has raised two theories of entitlement to service connection for TBI. These are described in the Veteran's presentation of the claim, including during the November 2021 Board hearing. First, the Veteran contends that he suffered an injury to the brain during service as a result of close exposure to firing heavy artillery weaponry. Second, the Veteran contends that he suffered an injury to the brain as a result of at least one fall resulting from his service-connected tinnitus and claimed service-connected vertigo. To the extent that the second theory may be inextricably intertwined with the pending claim of entitlement to service connection for vertigo, the issues shall be adjudicated together at the AOJ during the processing of this remand. The Board's discussion in this remand section shall now focus upon the first theory of entitlement to service connection for a TBI. In this case, the Veteran has not been afforded a VA examination with regard to his claim of entitlement to service connection for a TBI. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159(c)(4) is a low threshold standard. The Board finds that the McLendon criteria have been met to warrant a VA examination for this issue. First, the Veteran has presented a competent description, including through his representative at the November 2021 Board hearing, that his "memory has been getting slowly worse over the last decade or two," that he is "having memory issues, and concentration issues," and the Veteran himself described a long-term pattern of noticing himself "forget things ... and it got worse and worse as I got older." The Veteran is competent to report his experiences with memory and concentration lapses, and this testimony indicates recurrent symptoms that may be indicative of the claimed brain injury / disability. Next, the Veteran's representative recently submitted pertinent literature describing: Emerging evidence suggests that servicemembers may be exposed to high levels of blast overpressure (the pressure wave that comes from explosions) when firing heavy weapons, such as the Carl Gustaf recoilless rifle, even in training. DoD studies have demonstrated that some servicemembers experience cognitive deficits in delayed verbal memory, visual-spatial memory, and executive function after firing heavy weapons, even within allowable limits. DoD studies have also found higher rates of concussion and post-concussion associated symptoms among individuals with a history of prolonged exposure to low-level blasts from breaching and shoulder-fired weapons. The submitted article cites multiple publications, including medical journals, for pertinent indications that exposure to the fire of heavy weaponry can cause brain injury. The Veteran has described, including in his November 2021 Board hearing testimony, operating within a few feet of firing heavy artillery weaponry, and this testimony is consistent with the nature of his documented service as a "Field Artilleryman." The Board finds that the Veteran's testimony regarding his participation in firing heavy weaponry, together with the above-discussed article regarding brain injury associated with firing heavy weaponry, is sufficient to establish that the Veteran suffered a pertinent event or injury during service and meets the low threshold for finding that the Veteran's current reported impairments may be associated with the in-service event / injury. In the absence of any competent medical opinion addressing the matter, the Board finds that the record does not contain sufficient medical evidence to allow the Board to make determinations on the questions necessary to resolve the claim of entitlement to service connection for a TBI. A remand to afford the Veteran a VA examination with medical opinion is warranted. The Board notes that the duty to assist requires that an examiner address a veteran's lay statements to provide the Board with an adequate medical opinion. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The Board makes no credibility findings at this time. 2. The issue of entitlement to service connection for vertigo is remanded. In this case, the Veteran has not been afforded a VA examination with regard to his claim of entitlement to service connection for vertigo. In the section concerning the TBI issue, above, the Board discussed the McLendon criteria for determining when a VA examination or medical opinion is necessary. The Board finds that the McLendon criteria have been met to warrant a VA examination for this issue. First, the Veteran has presented a competent description, including through his representative at the November 2021 Board hearing, that he experiences a long-term pattern of "vertigo and dizzy spells" that have caused him to lose balance and fall "[a]bout three or four times a day." Notably, the Veteran has recently submitted a set of private medical records (submitted in January 2022) that includes a March 2019 report of an Ear, Nose, and Throat specialist doctor who discusses the history of the Veteran's tinnitus symptoms with some attention to "Dizziness described as poor balance." The Veteran is competent to report his experiences with dizziness and lapses in balances, and the evidence indicates recurrent vertigo symptoms that may be indicative of disability. Next, the Veteran's representative recently submitted a printout of a website indicating that "it is known that hearing loss can cause balance disorders" and that "[p]roblems with the inner ear that can be responsible for hearing loss can also lead to balance problems, dizziness, and vertigo." The Board observes that the submitted webpage printout is similar to other publicly available webpages from medical institutions indicating that vertigo can result from pathologies featuring hearing loss and tinnitus, particularly with attention to Meniere's disease. The Board finds that the fact that the Veteran has already established that his hearing loss and tinnitus are service-connected disabilities incurred during service, together with the above-discussed evidence that vertigo can be a result of pathologies featuring hearing loss and tinnitus, is sufficient to establish that the Veteran suffered a pertinent event or injury during service (has pertinent primary service-connected disabilities) and meets the low threshold for finding that the Veteran's current reported impairments may be associated with the in-service event / service-connected disabilities. In the absence of any competent medical opinion addressing the matter, the Board finds that the record does not contain sufficient medical evidence to allow the Board to make determinations on the questions necessary to resolve the claim of entitlement to service connection for vertigo. A remand to afford the Veteran a VA examination with medical opinion is warranted. The Board notes that the duty to assist requires that an examiner address a veteran's lay statements to provide the Board with an adequate medical opinion. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). The Board makes no credibility findings at this time. 3. The issue of entitlement to service connection for a back disability is remanded. 4. The issue of entitlement to service connection for radiculopathy or neuropathy of the right lower extremity is remanded. 5. The issue of entitlement to service connection for radiculopathy or neuropathy of the left lower extremity is remanded. 6. The issue of entitlement to service connection for neuropathy of the right upper extremity is remanded. 7. The issue of entitlement to service connection for neuropathy of the left upper extremity is remanded. The Veteran contends that he suffered an injury to the back as a result of at least one fall resulting from his service-connected tinnitus and claimed service-connected vertigo. The Board notes that private medical evidence recently submitted in January 2022 includes an October 2019 report of diagnostic imaging showing degenerative disc disease of the lumbosacral spine. The outcome of the remanded claim of entitlement to service connection for vertigo may significantly impact the course and outcome of the adjudication of the issue of entitlement to service connection for a back disability. Accordingly, the issues are inextricably intertwined. The Veteran further contends that he suffers from radiculopathy or neuropathy of the bilateral upper and bilateral lower extremities due to his back disability and / or due to his TBI. The outcome of the remanded claims of entitlement to service connection for a back disability and for TBI may significantly impact the course and outcome of the adjudication of the issues of entitlement to service connection for radiculopathy or neuropathy of the bilateral lower and bilateral upper extremities. Accordingly, the issues are inextricably intertwined. A remand of the issues of entitlement to service connection for a back disability and radiculopathies or neuropathies of the bilateral lower and upper extremities is required. The Court has held that two issues are inextricably intertwined when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board must defer final adjudication of the claims until completion of the AOJ's forthcoming development and adjudications concerning the vertigo and TBI claims. A remand of the claims is required. The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. After the record is determined to be complete, arrange for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed TBI. The examiner should review the claims file. The examiner is requested to answer the following: (a.) Identify all TBI or brain injury disabilities present, to include with attention to the Veteran's self-reported lapses in memory and concentration. (b.) As to each TBI or brain injury disability identified, is it at least as likely as not (50 percent probability or greater) that the Veteran suffers from a TBI or brain injury that is related to / proximately due to his active duty military service? The clinician must address (i) the article added to the record in November 2021 discussing recent research indicating that servicemembers may be exposed to high levels of blast overpressure (the pressure wave that comes from explosions) when firing heavy weapons, even in training; that DoD studies have demonstrated that some servicemembers experience cognitive deficits in delayed verbal memory, visual-spatial memory, and executive function after firing heavy weapons, even within allowable limits; and that DoD studies have also found higher rates of concussion and post-concussion associated symptoms among individuals with a history of prolonged exposure to low-level blasts from breaching and shoulder-fired weapons. The clinician must also address (ii) the Veteran's statements that during service he was routinely in close proximity to firing heavy artillery weaponry, and (iii) the Veteran's statements describing worsening lapses in memory and concentration as well as symptoms of dizziness over the course of the years following the conclusion of his military service. In responding to the above, the clinician is requested to address the following: (c.) What types of symptoms would have been caused by the claimed in-service events? (d.) Is there any medical reason to accept or reject the proposition that, had the claimed in-service events occurred, associated injuries could have led to the current disorder(s)? (e.) Please explain whether the Veteran's lay statements regarding the in-service proximate exposure to heavy artillery weapon fire and his subsequent history of worsening lapses in memory, concentration, and balance align with how any diagnosed TBI or brain injury disabilities are known to typically develop. The clinician must consider and address as appropriate lay evidence, including the Veteran's November 2021 Board hearing testimony describing in-service proximate exposure to firing heavy artillery weaponry and post-service decline in memory, concentration, and balance. The clinician is also asked to discuss as necessary the Veteran's service treatment records and post-service medical reports pertinent to the history of the Veteran's brain / cognitive health (such as the March 2020 and March 2021 cognitive screening assessments included in private medical records submitted in January 2022). A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The clinician is advised that the Board has not as yet made any credibility determinations with respect to the Veteran's reports of pertinent history. 3. After the record is determined to be complete, arrange for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) and a medical opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed vertigo. The examiner should review the claims file. The examiner is requested to answer the following: (a.) Identify all disabilities present in the Veteran's case that manifest in vertigo / dizziness / balance impairment, to include with attention to the Veteran's self-reported symptoms of vertigo / dizziness / balance impairment. (b.) As to each disability identified as manifesting in vertigo / dizziness / balance impairment, is it at least as likely as not (50 percent probability or greater) that the disability has been caused by a service-connected disability, such as hearing loss and tinnitus? The clinician must address the article added to the record in November 2021 indicating a possibility that vertigo can be caused by pathologies featuring hearing loss and tinnitus. (c.) As to each disability identified as manifesting in vertigo / dizziness / balance impairment, is it at least as likely as not (50 percent probability or greater) that the disability has been aggravated (increased in severity) by a service-connected disability, such as hearing loss and tinnitus? The clinician must address the article added to the record in November 2021 indicating a possibility that vertigo can be caused by pathologies featuring hearing loss and tinnitus. The clinician must consider and address as appropriate lay evidence, including the Veteran's November 2021 Board hearing testimony describing episodes of vertigo / dizziness / loss of balance resulting in falls up to four times per day. The clinician is also asked to discuss as necessary the Veteran's service treatment records and post-service medical reports pertinent to the history of the Veteran's inner ear health to the extent it may relate to the Veteran's claimed vertigo / dizziness / loss of balance. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The clinician is advised that the Board has not as yet made any credibility determinations with respect to the Veteran's reports of pertinent history. 4. After completion of the development directed above and any additionally indicated development, readjudicate the complete set of claims on appeal (including the inextricably intertwined issues of entitlement to service connection for disabilities of the back and the peripheral nerves of the bilateral upper and lower extremities). If any benefit sought on appeal is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Barone, Alexander 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.