Citation Nr: 23055005 Decision Date: 10/04/23 Archive Date: 10/04/23 DOCKET NO. 20-08 433 DATE: October 4, 2023 ORDER As new and material evidence has been received, the request to reopen the issue of entitlement to service connection for thoracic spine disability is granted. Entitlement to service connection for thoracic spine disability is granted. REMANDED Entitlement to service connection for lung disability is remanded. Entitlement to service connection for migraine headaches, to include as secondary to seizure disorder, is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. In November 1987, the Veteran was denied entitlement to service connection for a thoracic spine disability on the basis that the evidence did not show he suffered from a chronic disability. The Veteran did not timely appeal the decision and new and material evidence was not submitted within a year of the decision. Therefore, the decision is final. 2. The evidence submitted since the November 1987 rating decision is relevant and probative, and helped cure the prior evidentiary defects, namely the lack of showing of a current diagnosis of a thoracic spine disability that is related to service. 3. The medical evidence establishes a nexus between his thoracic spine disability and service. CONCLUSIONS OF LAW 1. The November 1987 rating decision is final. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.156(b), 20.1103 (2022). 2. The evidence received since the November 1987 rating decision, is new and material, and the issue is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2022). 3. The criteria for entitlement to service connection for thoracic spine disability have been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.102, 3.303 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977, and from October 1982 to October 1986. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The question of whether new and material evidence has been received to reopen the issue of entitlement to service connection for thoracic spine disability must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the Agency of Original Jurisdiction (AOJ) may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issue accordingly. For the reasons discussed above in the Findings of Fact, the request to reopen previously denied issue of entitlement to service connection for thoracic spine disability is granted. The Board will now continue with adjudication of the issue on the merits. Entitlement to service connection for thoracic spine disability. A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). Regarding a current diagnosis, in June 2020, a private orthopedic doctor assessed the Veteran to currently have the diagnoses of chronic thoracic spine strain and status-post compound fracture, T6-T8. See November 2020 Medical Treatment Record - Non-Government Facility. Service treatment records show that in April 1986, the Veteran exhibited soreness in the thoracic region upon evaluation due to suffering a seizure. Regarding a nexus, the private orthopedic surgeon opined that the Veteran's current thoracic spine disability was directly related to the seizure and resulting compound fracture injury sustained while on active duty. The clinician stated that the Veteran's condition is consistent with the mechanism of injury and has been known to occur in patients during severe seizures. The doctor continued that musculoskeletal injuries stemming from forceful muscular contractions during seizures have been documented in medical literature, and this situation was consistent with the Veteran's service treatment reports. The Veteran's reports regarding his pain are consistent with the onset and mechanism of the injury. See November 2020 Medical Treatment Record - Non-Government Facility. The Board finds that a nexus has been established between the Veteran's thoracic spine disability and his service. The private orthopedic surgeon's evaluation and opinion is highly probative. A fully articulated medical rationale was provided, discussing the particulars of the Veteran's medical and military history, and relevant medical literature and studies supporting such rationale. This is the only medical opinion of the record. Accordingly, as the criteria for entitlement to service connection for thoracic disability have been met, entitlement to service connection is warranted. REASONS FOR REMAND After a thorough review of the Veteran's claim file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the remaining issues on appeal. Prior to addressing each issue specifically, the Board finds that a remand is necessary in order to verify the Veteran's periods of service. The Veteran's representative states that the Veteran had various periods of service in the National Guard that were not considered by the AOJ. The representative shared that the Veteran had a period a service from August 1977 to April 1980, and a period of service beginning in May 1980. The Board notes that there are some treatment records dated after his reported periods of service while on active duty. In order to make an accurate and informed determination regarding his remaining issues of entitlement to service connection, the AOJ must make the necessary efforts to verify the character of the Veteran's National Guard service during those reported periods. 1. Entitlement to service connection for lung disability is remanded. The Veteran asserts to developing a lung disability due to his service. VA medical treatment records show that the Veteran experiences lung congestion. See September 2019 CAPRI. The service treatment records show that in May 1986, the Veteran reported symptoms of nasal congestion and coughing. The assessment reported by the clinician was "r/o [upper respiratory infection] vs. strep." Additionally, in March 1989, the Veteran reported symptoms of chest tightness, congestion, and cough. The assessment reported was acute sinusitis/bronchitis. There has been no examination to determine the nature and etiology of any lung disability, specifically if he exhibits a current lung disability related to his in-service symptoms. Therefore, on remand, an examination and medical opinion should be obtained to determine the nature and etiology of any lung disability found to be present during the applicable appeal period. 2. Entitlement to service connection for migraine headaches is remanded. 3. Entitlement to service connection for residuals of a TBI is remanded. VA medical treatment records pertinent to these issues were submitted after the issuance of the February 2020 Statement of the Case (SOC). As a waiver of AOJ review has not been submitted, a remand is necessary in order for the AOJ to consider the new evidence of record and issue a Supplemental Statement of the Case (SOC). Additionally, those VA medical records note that the Veteran has a prior medical history of migraine headaches. See August 2023 CAPRI. On the March 1988 Report of Medical History, the Veteran reported that he did not know if he suffered from frequent or severe headaches. The Veteran is currently service connected for a seizure disorder, which was the result of head trauma incurred in service in 1979 as a result of a motor vehicle accident (MVA). There has been no examination to determine whether the Veteran has migraine headaches due to his service, or his service-connected seizure disorder. The last examination conducted regarding TBI was in October 2012, in which it was determined that the Veteran did not have a diagnosis of TBI. It was reported that he exhibited memory loss. Seizures were noted to be a residual of his TBI. VA treatment records document that the Veteran suffers from depression and is receiving treatment. See August 2023 CAPRI. Mental disorders are noted on the TBI examination form to be a possible residual of TBI. See October 2012 VA Examination. As the record stands, clarification is necessary in order to determine whether the Veteran has migraine headaches due to his service, or secondary to his seizure disorder. The Veteran should also be reevaluated to determine if he has a TBI or residuals of a TBI, to include a mental disorder, that is due to his in-service head trauma. The matters are REMANDED for the following action: 1. Take all necessary steps to verify the Veteran's period(s) of Active Duty, Active Duty for Training (ACDUTRA), Inactive Duty for Training (IDT), Active Duty for Special Work (ADSW), and/or any other periods of service, with the National Guard. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of his periods of service, including Active Duty, ACDUTRA, ADSW, and IDT, are required. If this information or documentation is unavailable, this fact should be documented, and a formal finding of unavailability should be made with notice to the Veteran and his representative; they should be given an opportunity to respond. 2. Once all available, relevant records have been received, and associated with the claim file, schedule the Veteran the appropriate VA examinations to determine the nature and etiology of his lung disability, migraine headaches, and residuals of a TBI. His claim file should be made available to each examiner in conjunction with the examinations. Any testing deemed necessary should be conducted. After record review and examination, the VA examiner should offer an opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: Lung Disability (a) Please provide the diagnosis or diagnoses of a lung disability found to be present during the pendency of this appeal. (b) For each diagnosis of a lung disability found to be present during the appeal period, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any such disability was incurred in, caused by, or etiologically related to the Veteran's service? The examiner should consider and address the May 1986 and March 1988 service treatment records when rendering the opinion. Migraine Headaches (a) Please provide the diagnosis of migraine headaches, or any other headache disability, found to be present during the pendency of this appeal. (b) For each diagnosis found to be present during the appeal period, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any such disability was incurred in, caused by, or etiologically related to the Veteran's service, specifically head trauma incurred as a result of the 1979 motor vehicle accident? (c) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any such headache disability is caused by service-connected seizure disorder? (d) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any such disability is aggravated (i.e., worsened beyond the natural progress) by a service-connected seizure disorder? If the headache disability is deemed not to be due to, or aggravated by a service-connected seizure disorder, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation. Residuals of TBI (a) Please determine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran suffered a TBI as a result of head trauma incurred during service, as a result of the 1979 motor vehicle accident. (b) If it is determined that the Veteran suffered a TBI, please provide the diagnosis or diagnoses of any disability that is a residual of a TBI, found to be present during the pendency of the appeal. The examiner must consider and address whether the Veteran has a current diagnosis of a mental disorder that is a residual of a TBI. If a disability is determined to not be a residual of TBI, the examiner must provide explanation as to why that is so. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation stating why this is so should be provided. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that the limits of current medical knowledge in providing an answer to that particular question have been exhausted. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.