BRAIN DISEASE DUE TO TRAUMA

JAMES SPRINGER · 2022 · Case ID: A22008345

MIXED

Summary

The veteran, who served in the Air Force from July 1952 to July 1984, appeals the denial of service connection for a traumatic brain injury (TBI) and a right shoulder disorder. The Board denied service connection for TBI, finding the veteran's lay assertions regarding a fall caused by service-connected knee pain were not competent medical evidence. The Board relied on a VA examiner's opinion, which concluded the TBI was less likely than not related to the knee disability, citing a lack of continuous treatment and the possibility of other causes for the fall. The Board also denied service connection for the right shoulder disorder, finding the weight of the evidence was against the claim. While in-service records showed shoulder issues, the veteran denied problems at separation, and post-service records indicated the current osteoarthritis was likely due to aging and chronic overuse, not service. The Board found the VA examiner's opinion, which attributed the shoulder condition to aging and overuse, to be more probative than the veteran's lay assertions. The case was remanded for a determination on entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis, as evidence suggested the veteran's combined service-connected disabilities might prevent substantially gainful employment.

Rationale

No probative opinion linking TBI to service-connected knee disability; VA examiner's opinion afforded high probative value; Veteran's lay assertions not competent medical evidence for diagnosis/etiology

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

220320-228889

Full Decision Text

Citation Nr: A22008345
Decision Date: 05/09/22 Archive Date: 05/09/22

DOCKET NO. 220320-228889
DATE: May 9, 2022

ORDER

Entitlement to service connection for a traumatic brain injury (TBI) is denied.

Entitlement to service connection for a right shoulder disorder is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The most probative evidence is against a finding that the Veteran has a TBI secondary to a fall caused by the service-connected right knee disability.

2. The most probative evidence is against a finding that the Veteran's current right shoulder disorder had its onset during active duty service or is related to such service; or that arthritis was manifested within one year of the Veteran's discharge from active duty service.

CONCLUSIONS OF LAW

1. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. § 3.310.

2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from July 1952 to July 1984.

In January 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an August 2021 rating decision that denied service connection for a TBI and entitlement to a TDIU, and an October 2021 rating decision that denied service connection for a right shoulder disorder. In January 2022, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior August 2021 and October 2021 rating decisions. In the March 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

In cases where a veteran served continuously for 90 days or more during active service and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by
12 Vet. App. 341 (1999).

Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

1. Service connection for a TBI

The Veteran seeks service connection for a TBI as secondary to his service-connected right knee disability. During a July 2021 VA examination, he reported that he had fallen as a result of right knee pain and sustained a TBI.

Private treatment records document that the Veteran underwent a CT scan of the brain in August 2019 after trauma; the impression was a nondisplaced fracture involving the left parietal convexity and extensive bilateral bifrontal subarachnoid hemorrhage with small subdural components within the right temporal and left frontal regions. A December 2019 private treatment record documents that the Veteran reported falling in August and suffering a frontal lobe injury. It was noted he had been admitted from August 23, 2019, until December 21, 2019, and assessed with brain injury.

The Veteran was seen privately in June 2020 with complaint of head injury, at which time he reported falling one month prior and hitting the back of his head. It was noted that he had suffered a TBI from a fall last year. The June 2020 assessment was non intractable headache. A June 2020 CT scan of the brain contained an impression of fracture involving the vertex of the left frontal parietal region extending slightly inferiorly along the left frontal bone, however no evidence of underlying subdural or epidural hematoma is demonstrated; areas of encephalomalacia involving the inferior frontal lobe greater on the left side which may be related to old infarctions or trauma; and minimal periventricular chronic small vessel ischemic disease within old infarction of the left internal capsule.

The Veteran has been diagnosed during the appeal with a brain injury so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to his service-connected right knee disability.

During the July 2021 VA examination, the Veteran's history was assisted by his wife, who reported that on August 22, 2019, the Veteran's friend invited him to their house and while he was transitioning one step off from the house to outside, he lost his balance and he fell. The Veteran reported that he did not know why or how he fell, but he did strike his head and complained of light headache. The wife reported at that time that he was not utilizing the cane and was not really complaining of knee pain prior to the fall. She reported that after the fall, the Veteran drove himself home and she had a conversation with him during which he was cognitively stable. The wife reported that later the next day he began to have ecchymosis around both eyes, and she stated that he did not look right, so she transitioned him to the urgent care where they obtained an x-ray of the head, transferred him to the emergency room at a private facility where he was diagnosed with a fractured skull, and then transferred him to another private facility where he was diagnosed with fractured skull and brain bleed. At the time of the examination, the Veteran complained of memory difficulties but did not complain of any headaches. He reported that he had paresthesias in the left upper extremity and walked with a rolling walker following the brain bleed. His major complaints were memory difficulties and limited mobility.

The July 2021 VA examiner noted that a December 21, 2018, note revealed that the Veteran had no evidence of falls or near falls and was stable and ambulatory. A July 25, 2019, note by a physical therapist indicated that the Veteran fell at home, had deconditioning, and had a history of peripheral vascular disease and distal sensory neuropathy with gradual decline in walking over four
with fractured skull and brain bleed. At the time of the examination, the Veteran complained of memory difficulties but did not complain of any headaches. He reported that he had paresthesias in the left upper extremity and walked with a rolling walker following the brain bleed. His major complaints were memory difficulties and limited mobility.

The July 2021 VA examiner noted that a December 21, 2018, note revealed that the Veteran had no evidence of falls or near falls and was stable and ambulatory. A July 25, 2019, note by a physical therapist indicated that the Veteran fell at home, had deconditioning, and had a history of peripheral vascular disease and distal sensory neuropathy with gradual decline in walking over four to five years. It was noted in the records that he had a history of a fall three years prior and fractured an ankle and another fall four months prior. The examiner also reported reviewing a note dated August 20, 2020, in which it was reported that the Veteran was a 90-year-old with history of prostate cancer in remission and history of brain trauma/brain bleeding after the fall for loss of balance in 2019, after which he was hospitalized.

The July 2021 VA examiner determined that the Veteran did not have a TBI or residuals of a TBI, explaining that there was no diagnosis because although the Veteran had a fall and sustained a brain bleed, the examiner was tasked with determining secondary service connection for TBI related to service-connected right knee pain. It was the examiner's opinion that the knee pain did not contribute to the fall, therefore, the Veteran's fall and brain bleed was not due to knee problems and there is no TBI secondary to service-connected knee pain. The examiner explained that in discussing and having a conversation with the Veteran's wife and after reviewing the medical records, it appeared that the Veteran had not received any right knee treatment despite having pain and a meniscus injury, and he had not complained of knee pain prior to his fall. The examiner also cited the 2018 medical records showing he had no near falls or falls and the 2019 medical records showing that he had deconditioning, peripheral vascular disease, and distal sensory neuropathy, all of which can create imbalance and set up a situation where an elderly gentleman could misstep and fall. It was for these reasons that it was the examiner's opinion that the TBI is less likely than not proximately due to or the result of the Veteran's service-connected right knee disability and that it would be resorting to speculation to attribute the TBI/brain bleed to the right knee disability.

The opinion provided by the July 2021 VA examiner, which stands uncontroverted in the record, is afforded high probative value because it considers the Veteran's lay assertions and the information obtained from the Veteran's wife during the examination, and it considers the medical evidence specific to this Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).

While the Veteran believes that he has a TBI secondary to a fall caused by his service-connected right knee disability, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a TBI are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of any TBI, to include the assertion that his right knee disability caused a fall that resulted in TBI, is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions. In the absence of a probative opinion that the Veteran has a TBI secondary to a fall caused by the service-connected right knee disability, service connection is not warranted on a secondary basis and the claim must be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the claim for service connection for a TBI on a secondary basis, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49,
Veteran has a TBI secondary to a fall caused by the service-connected right knee disability, service connection is not warranted on a secondary basis and the claim must be denied.

2. Service connection for a right shoulder disorder

The Veteran seeks service connection for a right shoulder disorder. During a July 2021 VA examination, he reported that the condition began from serving for over 32 years in the Air Force. He could not remember when his right shoulder pain started but indicated it may have started in the 1980's.

The Veteran has been diagnosed during the appeal with several right shoulder disorders so the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service.

Service treatment records document that the Veteran was seen in February 1980 with complaint of right shoulder pain radiating into the right arm. The assessment was tendinitis. He was seen again in June 1980 with complaint of pain in his right shoulder for three to four months. The assessment was rule out degenerative joint disease and an x-ray was ordered. The x-ray showed no radiographic abnormalities. The Veteran was seen again in October 1981 with complaint of a sore right shoulder. He denied trauma and was assessed with questionable arthritis. An x-ray taken that same month indicated that there was suggestion of faint calcification in the right rotator cuff, but no bone or joint degeneration identified. A December 1981 service treatment record contains an assessment of questionable right shoulder bursitis. The Veteran was not seen with complaint related to his right shoulder after December 1981 and, at the time of his December 1983 discharge examination, he denied painful or trick shoulder/elbow and clinical evaluation of his upper extremities was normal.

Post-service treatment records indicate that the Veteran was seen in August 2017 with complaint of right shoulder pain that started more than five years ago without obvious precipitating injury. An August 2017 right shoulder x-ray contained an impression of severe osteoarthritis in the right glenohumeral joint with multiple ossified loose bodies in the joint. The Veteran presented in September 2018 for right shoulder pain. He reported a work-related injury without any specifics as to when the injury occurred. The assessments were right shoulder pain, sprain of right rotator cuff capsule, right shoulder impingement syndrome, right shoulder bicipital tendinitis, and right shoulder primary osteoarthritis.

The Veteran underwent VA examination in July 2021, at which time he was diagnosed with right glenohumeral joint osteoarthritis. In a September 2021 addendum, the VA examiner provided an opinion that the claimed right shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the report of medical history and examination at the time of the Veteran's December 1983 separation from service did not reveal history or physical findings for ongoing acute or chronic treatment of a right shoulder joint condition and that review of the Veteran's medical records did not reveal continuous ongoing medical treatment or aggravation of acute or chronic right shoulder joint condition from the time of discharge from active military service to the present day. The examiner explained that the Veteran's right shoulder degenerative joint disease is secondary to joint aging and chronic overuse of the right shoulder over the duration of many years and is independent from his active military career. This opinion, which stands uncontroverted in the record, is afforded high probative value as it considers the Veteran's lay assertions and the medical evidence specific to this Veteran, to include the in-service findings related to the right shoulder. See Nieves-Rodriguez, 22 Vet. App. at 302-04.

The weight of the evidence is against the claim for service connection for a right shoulder disorder on a direct basis. While the Veteran was seen on several occasions for problems with his right shoulder during his long active duty service, he denied any problems with his right shoulder at the time of his discharge examination, and he has not reported continuous problems with his right shoulder from the time of his discharge from service. In addition, it was not until August 2017 that the Veteran was seen with any complaints involving his right shoulder and while he reported that right shoulder pain had started more than five years ago without obvious precipitating injury, no specific time frame was provided, and the Veteran did not provide a specific time frame for the work injury to his right shoulder reported in September 2018. In addition, the only probative opinion of record establishes that the Veteran's right shoulder disorder is due to aging and chronic overuse over many years and independent from the Veteran's active duty service. In the absence of a probative opinion that the Veteran has a right shoulder disorder that is etiologically related to his active duty service, service connection is not warranted on a direct basis.

Service connection for a right shoulder disorder is also not warranted on a presumptive basis in the absence of evidence that the Veteran had arthritis in his shoulder within one year of his July 1984 discharge from active duty service.

While the Veteran believes that his current right shoulder disorder is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of a right shoulder disorder are matters not capable of lay observation and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of any right shoulder disorder, to include the assertion that his post-service problems are related to in-service problems he had with his right shoulder, is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current right shoulder disorder is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertions.

REASONS FOR REMAND

The Veteran is service-connected for bilateral sensorineural hearing loss, tinnitus, a right knee disability, and hypertension; his combined rating was 20 percent effective February 24, 2011, 30 percent effective July 18, 2011, 50 percent effective June 13, 2017, and 60 percent effective June 15, 2021. As such, the schedular requirements set forth in 38 C.F.R. § 4.16(a)(2) for consideration of a TDIU have not been met at any point during the appeal period.

Where the percentage requirements for a TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). In cases where entitlement to a TDIU is warranted on an extraschedular basis, the claim must be submitted to the Director of Compensation Service for initial adjudication. Id.

In the June 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that his four service-connected disabilities prevented him from securing or following any substantially gainful occupation. He indicated that August 2014 was when his disabilities affected full-time employment and on which he became too disabled to work, and that June 2008 was the date
follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). In cases where entitlement to a TDIU is warranted on an extraschedular basis, the claim must be submitted to the Director of Compensation Service for initial adjudication. Id.

In the June 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that his four service-connected disabilities prevented him from securing or following any substantially gainful occupation. He indicated that August 2014 was when his disabilities affected full-time employment and on which he became too disabled to work, and that June 2008 was the date that he last worked full-time. The Veteran listed full-time employment from 1984 to 2004 in maintenance at McGuire Air Force Base Lodging as his last employment. He had not tried to obtain employment since becoming too disabled to work, that he had completed two years of a college education, and that he had not had any education or training before or since becoming too disabled to work.

Furthermore, a July 2021 VA examiner determined that the Veteran's right knee disability impacts his ability to perform any type of occupational task due to difficulty with walking and standing without assistance or a walker and that another July 2021 VA examiner concluded that functionally, the Veteran's hearing loss would likely greatly interfere with his ability to understand conversations especially in background noise and in situations where he is unable to see the speaker.

This evidence, which was of record at the time of the January 2022 rating decision on appeal, suggests that the Veteran's service-connected disabilities may have rendered him unemployable such that the AOJ committed a pre-decisional duty to assist error by declining to refer the Veteran's claim of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. Accordingly, the Board will remand the matter for referral to the Director. See 38 C.F.R. § 20.802(a) (2021) (the Board may remand for correction of any other error by the AOJ in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim).

The matters are REMANDED for the following action:

Refer the matter of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service for a determination as to whether the Veteran is entitled to an assignment of a TDIU under the provisions of 38 C.F.R. § 4.16(b).

James Springer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Van Wambeke, 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.

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