Citation Nr: 22017232 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-07 639 DATE: March 24, 2022 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a sleep disorder, claimed as sleep apnea, is denied. FINDINGS OF FACT 1. The competent and probative evidence does not establish that the Veteran sustained a TBI in service. 2. The evidence of record persuasively weighs against finding that the Veteran has had an acquired psychiatric disorder at any time during or approximate to the pendency of the claim. 3. The evidence of record persuasively weighs against finding that the Veteran has had a sleep disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for a sleep disorder, claimed as sleep apnea, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to January 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing in January 2020. A transcript is of record. In June 2020 and May 2021, the Board remanded the appeal for additional development, which has been completed. 1. Entitlement to service connection for a TBI is denied. The Veteran contends that he suffered a TBI during a vehicle accident in service. At the January 2020 hearing, the Veteran and his representative asserted that his currently service-connected headaches, and other nonservice-connected memory loss, dizziness, balance problems, and psychiatric symptoms were manifestations of this TBI. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's service treatment records show that he had a tank accident in April 1971; however, there is no indication of a head injury in that accident or at any other time during active service. An April 1971 Statement of Medical Examination and Duty Status shows that the Veteran sustained a crush injury to his chest when a tank overturned at Fort Knox, Kentucky, on April 8, 1971. It shows the Veteran was a loader of an A-21 tank, and that the driver of the tank could not negotiate a curve and struck a bridge abutment. An April 1971 record from Ireland Army Hospital shows the Veteran was riding inside a tank which ran off a bridge, resulting in chest contusion. The treatments included assisted ventilation and physical therapy. The final diagnosis was pulmonary contusion, left upper lobe. The condition on discharge was 'improved,' and the disposition was return to duty. A May 1971 record shows a complaint of back and chest pain probably as a result of a tank accident. A May 1971 x-ray of the chest shows healing rib fractures of the right 6th and 7th lateral ribs. The chest was otherwise negative. A May 1971 record from the eye clinic in the Ireland Army Hospital shows the Veteran had a tank accident in April 1971, and that he had subconjunctival hemorrhage on his left eye. After service, a November 1976 record noted the Veteran was in an auto accident where the car rolled; he reported complaints of headaches and neck pain. The pertinent clinical record immediately following the injury noted the exact regions involved with the auto accident were skull, cervical spine, and lumbosacral spine. The x-ray of the skull showed the following findings: 'The boney skull showed no fracture line, boney depression nor metastatic foci. The sella turcica is normal. The pineal is not calcified and no abnormal intracranial calcification can be seen.' The impression was normal skull. In a January 2001 treatment record, a private doctor noted the Veteran continues to complain about pain in his back and cervical, thoracic, and lumbar spine areas; the Veteran also reported headaches and pain in his chest. The diagnoses included the following: status following cerebral concussion with persistent memory problems; cervical spine strain; thoracolumbar spine strain, worsening; contusion with abrasion frontal area of head, resolved; post traumatic cephalgia related to blunt trauma as well as to cervical strain; contusion left shoulder, right lower ribs, and mid sternal area of chest, resolved. A February 2001 summary shows that the Veteran was in an auto accident recently, and was participating in physical therapy. A December 2007 VA record shows the Veteran has had numerous accidents since service including the following: an April 1971 rollover motor vehicle accident in a tank with a crushing chest injury - diagnosed as pulmonary contusion; a rollover motor vehicle accident in November 1976 with diagnosis of possible spondylosis at L5 and early spondylolisthesis at L5-S1; a July 1991 fall of about 20 feet with L5-S1 subluxation, status post compression fracture L1 and T-12; a February 2001 motor accident with back injury, question of skull contusion with concussion; a 2004 motor vehicle accident with a back injury diagnosed as cervicalgia and low back pain, arthralgia left shoulder and left elbow, costochondritis. The Board remanded the appeal in June 2020 and in May 2021 for a medical opinion on the likelihood that the Veteran suffered a TBI during his in-service vehicle accident in April 1971, and if so, whether there are any current residuals. Pursuant to the remand instructions, a VA medical opinion was obtained from a psychiatrist in January 2022. The examiner opined that it is less likely as not that the Veteran suffered a TBI during his in-service vehicle accident in April 1971. The examiner explained that the 1971 service treatment record reflects an accident in which he incurred chest trauma but not a TBI. She noted that the Veteran had a subconjunctival hemorrhage in the left eye that resolved in a normal period of recovery. She stated that the final diagnosis was pulmonary contusion in the left upper lobe, and that the Veteran returned to duty. She concluded that there was no evidence of a TBI in service. After careful review of the record, the Board concludes that service connection for a TBI is not warranted. A review of the evidentiary record does not substantiate the Veteran's current assertion that he incurred a head injury during the April 1971 tank accident. Further, there is no record of a head injury or a TBI in service being diagnosed by a clinician with medical training. The Board recognizes that the Veteran is competent to report evidence within the realm of his personal knowledge, including the onset and continuity of symptoms. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran's current report of having sustained a head injury and/or TBI in service is not supported by the contemporaneous medical evidence. There are multiple references to a chest injury and a left eye injury pertaining to the April 1971 accident in the service treatment records, but these records are silent for a TBI. The post-service clinical records contain the first evidence of a head injury years after discharge. A 1976 x-ray of his skull due to a car accident showed that his skull was normal. The first clinical record documenting a concussion to his head was in 2001, approximately 30 years after service, from a car accident with multiple injuries to his back, neck, head, left shoulder, and chest. Moreover, the Veteran is not competent to self-diagnose a TBI as this is a complex medical determination and he is not shown to have medical expertise, clinical training, or a medical education. Such a determination falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For this reason, the Board must rely on the competent medical evidence. The January 2022 VA examiner also opined that it was less likely than not that the Veteran incurred a TBI while active duty. The examiner explained that the 1971 service treatment record reflects an accident in which he incurred chest trauma and subconjunctival hemorrhage in the left eye that resolved in a normal period of recovery. She stated that there was no evidence of a TBI in service based on her review of the claims file. This opinion is competent and persuasive, as it was rendered by a physician and the supporting rationale for the conclusion reached was based on the Veteran's accurate clinical history. The opinion contains clear conclusions and supporting data. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board has considered the Veteran's statements regarding his having experienced a TBI in service. However, his report of a TBI from the tank accident is neither credible nor probative. As noted above, his service treatment records do not reveal any injury to his head, and a 2001 record first documented a head injury with memory loss from a car accident. Further, the VA examiner, after thorough review of the record, found that the Veteran did not have a TBI during his service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, the doctrine is not applicable. Service connection for a TBI is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for an acquired psychiatric disorder is denied. The Veteran asserts that he has an acquired psychiatric disorder secondary to his service-connected back disability. His representative stated at the Board hearing that chronic pain and depression are interrelated such that leads to depression and depression can worsen the feelings of pain. See Board hearing transcript at 7 Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current psychiatric disability that is proximately due to or the result of, or is aggravated beyond its natural progress by his service-connected back disability. The Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric disorder, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). There is no diagnosis of an acquired psychiatric disorder during the appeal period. An April 2014 VA review of the Veteran's psychiatric system shows there was no history of depression or anxiety. He did report at a July 2014 VA depression screening that he felt little interest or pleasure in doing things, and felt down, depressed, or hopeless; he denied feeling hopeless about the present or future, had thoughts about taking his life, or had a suicide attempt. However, there were no further complaints or treatment for a psychiatric disability, and the Veteran's VA and private records do not reveal any clinical diagnosis of an acquired psychiatric disorder at any time during the pendency of the claim or recent to the filing of the claim. A VA medical opinion was obtained in January 2022. The examiner noted she reviewed the Veteran's claims file. The examiner opined that it is less likely as not that an acquired psychiatric disorder was caused or aggravated beyond its natural progression by his service-connected back disability. The examiner explained that there is no mental health treatment found in the available records, and that the Veteran's testimony at the Board hearing is inconsistent with the available evidence. The examiner noted that it appeared that the only emergence of claims of depression is found in the filing of the claim. The Board finds the examiner's opinion probative as it is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes he has a current diagnosis of an acquired psychiatric disorder, he is not competent to provide a diagnosis. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing, which he has not shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Since the record presents no competent evidence to establish an acquired psychiatric disorder during the appeal, there is no valid claim for service connection. The evidence persuasively weighs against the claim, and the benefit of the doubt rule is not applicable. Service connection for an acquired psychiatric disorder is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a sleep disorder, claimed as sleep apnea, is denied. The Veteran asserts that he has a sleep disorder mainly due to pain from his service-connected back disability, and also as secondary to his psychiatric disability; he denied any sleeping problems during active service. See Board hearing transcript at 11. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. The Board initially notes that the Veteran is not service-connected for a psychiatric disability, and there is no legal basis upon which to award service connection for a secondary disability due to a primary disability that is not service-connected. 38 C.F.R. § 3.310; Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). The question for the Board is whether the Veteran has a current sleep disorder that is proximately due to or the result of, or is aggravated beyond its natural progress by his service-connected back disability. The Board concludes that the Veteran does not have a current diagnosis of a sleep disorder, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky, 26 Vet. App. at 294. The Veteran's VA and private medical records are silent for a diagnosis of a sleeping disorder at any time near the filing of the claim or during the appeal. The Veteran did complain of sleep disturbance due to lower back pain in a February 2010 VA record; however, there was no clinical diagnosis of a sleep disorder. He reported in a May 2011 VA record that he has had problems getting to sleep ever since got divorced; no diagnosis was noted for a sleeping problem. However, there is no diagnosis of a sleep disorder during the period on appeal. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer, 3 Vet. App. at 223. In a January 2022 VA medical opinion, the examiner opined that the claimed sleep disorder is less likely than not caused or aggravated beyond its natural progression by the Veteran's service-connected back disability. The examiner explained there are no medical records or diagnostic studies in the claims file to show that the Veteran has any diagnosis of a sleep disorder. The examiner further explained that even though the Veteran reports his back condition causes pain that interferes with sleep, the conditions do not cause or worsen sleep apnea itself. She stated that sleep apnea is a condition where narrowing of the airway that results in obstruction of airflow. She noted that the Veteran's service-connected lumbar spine, cervical spine, radiculopathy of bilateral upper and right lower extremities, and migraines do not affect the airway. The examiner's opinion is probative as it was based on a review of the Veteran's claims file and testimony, and was accompanied by thorough and cogent rationale. Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran believes he has a current diagnosis of a sleep disorder; however, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing, which he has not shown to possess. Jandreau, 492 F.3d at 1377 n.4. As the record presents no competent evidence to establish a current disability, there can be no valid claim. The benefit of the doubt rule is not applicable, and service connection is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, Associate 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.