Entitlement to service connection for a traumatic brain injury (TBI) is remanded.
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Citation Nr: 21063090 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-47 029 DATE: October 13, 2021 ORDER Entitlement to service connection for gastroenteritis is denied. Entitlement to service connection for tendonitis is dismissed. REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a headache disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has had gastroenteritis at any time during or approximate to the pendency of the claim. 2. During the December 2020 Board hearing, the Veteran, through his attorney, withdrew his appeal of the claim for service connection for tendonitis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gastroenteritis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for tendonitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force July 1986 to May 1991. He was a member of the Air Force Reserve and California National Guard until his discharge in April 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge at a Board telehearing. The Board notes that on the Veteran's April 2016 notice of disagreement (NOD), the Veteran's attorney indicated that numerous documents were attached, including multiple buddy statements and medical records. In a January 2020 letter, the Board notified the Veteran and his attorney that the attachments identified in the NOD had not been included and asked them to submit the missing attachments. They were advised that if there was no response within 30 days, the Board would proceed with adjudication of the appeal based on the evidence of record. Later that month, the Veteran's attorney responded by indicating that the Veteran had requested a Board hearing. He did not, however, submit the attachments. To date, they have not been received. Dismissal 1. Entitlement to service connection for tendonitis is dismissed. The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. A review of the record shows that in March 2014, the Veteran submitted a statement indicating that he wished to file claims of service connection for a TBI, hypertension, and tinnitus. Upon receipt of his statement, the RO forwarded him an application for VA compensation benefits so he could complete his claim. The Veteran returned the completed application in August 2014. On that formal application, the Veteran sought service connection for multiple disabilities -- TBI, hypertension, headaches, depression, gastroenteritis, and tendonitis. He did not, however, seek service connection for tinnitus. In the June 2015 rating decision, the RO denied service connection for TBI, hypertension, headaches, depression, gastroenteritis, and tendonitis. In April 2016, the Veteran, through his attorney, submitted a notice of disagreement on which he disagreed with the denial of service connection for TBI, hypertension, headaches, depression, gastroenteritis, and tinnitus (but not tendonitis). In June 2016, however, the Veteran's attorney submitted a statement indicating that the April 2016 notice of disagreement was in error to the extent it listed tinnitus instead of tendonitis. He indicated that this was due to a typographical error and requested that the notice of disagreement be corrected to reflect tendonitis rather than tinnitus. In September 2018, the RO issued a Statement of the Case addressing the issues identified in the corrected notice of disagreement, including service connection for tendonitis. The Veteran's attorney then submitted a VA Form 9 in October 2018 perfecting an appeal of all of the issues identified in the Statement of the Case. At his December 2020 Board hearing, the Veteran's attorney indicated that the Veteran did not have tendonitis and wished to withdraw that issue from appeal. Rather, he explained that tendonitis had been a typographical error and that the Veteran actually wanted to seek service connection for tinnitus. The Board notes that the record indicates the Veteran recently filed a service connection claim for tinnitus, and that issue has not yet been adjudicated by the RO in the first instance. Pertaining to the Veteran's service connection claim for tendonitis, the Board finds the Veteran, through his attorney, has explicitly, unambiguously, and with a full understanding of the consequences withdrew the appeal of that issue. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As there is no remaining allegation of error of fact or law for appellate consideration regarding this issue, the Board does not have jurisdiction to review it and it is dismissed. SERVICE CONNECTION 1. Entitlement to service connection for gastroenteritis is denied. The Veteran seeks service connection for gastroenteritis. He contends that he has gastrointestinal issues which are the result of stress from his psychiatric disability as well as a side effect of treatment, particularly medication, for his acquired psychiatric disability. See December 2020 Board Hearing. 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). In addition, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The question for the Board is whether the Veteran has a current disability that began during service, is otherwise causally related to an in-service injury or disease, or is causally related to or aggravated by a service-connected disability. The Board concludes that the Veteran does not have a current gastrointestinal disability, to include gastroenteritis, 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). The Board acknowledges that service treatment record (STRs) corresponding to the Veteran's period of active duty reflect he was diagnosed as having gastroenteritis in June 1987 and October 1987. That a disease or injury occurred during active service, however, is not enough to establish service connection. Rather, there must be a current disability resulting from that in-service disease or injury. In this case, the Board concludes that there is no evidence that the Veteran currently has a gastrointestinal disability, to include gastroenteritis. Despite the notations of gastroenteritis in June 1987 and October 1987, the remaining service treatment records are negative for complaints or findings of a gastrointestinal disability. The post active duty record on appeal is similarly negative for complaints or findings of a gastrointestinal disability, to include gastroenteritis. The record on appeal includes both VA and private clinical records dated proximate to the receipt of the claim. None of these records contains any complaints or findings of a gastrointestinal disability, to include gastroenteritis. Rather, these records show that the Veteran has specifically denied side effects from medications or gastrointestinal symptoms, to include abdominal pain and heartburn. Examination of his abdomen during this period has been consistently normal, with no tenderness and normal bowel sounds, and review of his systems consistently notes that he reports no gastrointestinal symptoms, to include abdominal pain, nausea, vomiting, diarrhea, change in bowel habits, or black or bloody stools. The Board has considered the November 2020 opinion from Craig N. Bash, M.D. to the effect that service connection should be granted because the medical literature establishes a well-known association between gastrointestinal issues such as reflux symptoms and GERD and psychiatric disabilities and because the medical literature also establishes that certain medications and dietary supplements can cause heartburn pain. Be that as it may, absent evidence that the Veteran currently has a gastrointestinal disability, which Dr. Bash does not provide in his opinion, service connection is not warranted. Indeed, the Board notes that the clinical evidence of the Veteran's treatment which is attached to Dr. Bash's report consistently notes that the Veteran reports no gastrointestinal symptoms. See e.g. Kettering Health Network records. Although the clinical evidence of record is negative for a diagnosis of a current gastrointestinal disability, to include gastroenteritis, the Board notes that "disability" as defined in 38 U.S.C. §§ 1110 and 1131 refers to the functional impairment of earning capacity, not the underlying cause of said disability. See Saunders v. Wilkie, 866 F.3d 1356 (2018). In this case, however, there is no evidence, lay or clinical, showing that the Veteran has any gastrointestinal related impairment which rises to a level to affect earning capacity. He has not shown or specifically alleged that he has manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). To the extent filing a claim of service connection constitutes an allegation of a current disability, the Board finds that the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, there is no indication that he is relaying a current diagnosis given to him by a medical professional and, again, he, in his claim, did not report any gastrointestinal related impairment which rises to a level to affect earning capacity. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that, at some time during the current claim, the Veteran has the disability for which benefits are being claimed. Here, however, as noted above, the evidence of record does not establish that, at any time during the current claim, the Veteran has had a gastrointestinal disability, to include gastroenteritis. In this regard, the Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. 38 U.S.C. § 1110. In the absence of a current disability, the analysis ends, and the claim for service connection for gastroenteritis cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board notes, however, the preponderance of the evidence is against the claim of entitlement to service connection for a gastrointestinal disability, to include gastroenteritis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for residuals of a TBI, to include an acquired psychiatric disability, hypertension, and a headache disability The Veteran claims that he sustained a TBI in a 1989 motorcycle accident on Clark Air Force Base and, as a result, suffers from multiple residuals to include encephalomalacia, an acquired psychiatric disability, chronic headaches, and hypertension. Alternatively, he contends that he contracted Dengue fever while on active duty which damaged his brain. See e.g. December 2020 hearing transcript. The Veteran's service treatment records reflect that at his July 1985 enlistment examination, he reported a history of a two day period of hospitalization for a concussion in June 1979. The examiner indicated that there were no complications or sequelae. No pertinent abnormalities were noted on clinical evaluation. In-service treatment records show that in June 1987, the Veteran sought treatment for throbbing headaches which he described as a migraine headache. He reported that this had been a recurrent problem for several years. The assessment was vascular headaches. In July 1989, the Veteran was admitted for treatment and observation after he was brought to the emergency room by local nationals who found him lying face down along the highway with a bleeding laceration at the back of the head. He was noted to be "obviously intoxicated." The report notes that on admission, the Veteran denied a motor vehicle accident or assault, although there is no indication that he provided another explanation for his injury. X-ray studies were performed and showed an oblique linear fracture in the left temporal bone. No other abnormalities or fractures were observed on X-ray. Laboratory testing included a blood alcohol test showing 281 mg/dl or a blood alcohol content of approximately .28%. The Veteran was discharged the following day but returned with complaints of severe bifrontal headaches. A note indicates that "[h]e was told he fell off the tricycle at the time of the accident." He was readmitted and a subsequent CT scan showed multiple brain contusions in the right subfrontal area, left temporal tip and left parietal cortex, a question of a left subdural hematoma, and a left temporal bone fracture. The diagnoses on discharge included closed head injury with cerebral contusions, frontal and temporal areas, temporoparietal skull fracture, and alcohol intoxication. On follow-up in July 1989, the Veteran reported persistent headaches. At that time, he also again reported a long history of migraines. Neurological evaluation was normal. The assessment was stable. On follow-up in August 1989, the Veteran reported that he was back to work and was without problems. Examination showed that the Veteran was neurovascularly intact. The assessment was status post closed head injury without sequalae. The remaining service treatment records corresponding to the Veteran's period of active duty are negative for pertinent complaints or abnormalities. The Board notes that service treatment records corresponding to the Veteran's period of active duty are entirely negative for notations of Dengue fever. Post-active duty service treatment records reflect that in September 1995, the Veteran underwent a periodic examination in connection with his membership in the National Guard. He reported a preservice history of a concussion in 1979. He also reported a history of a skull fracture in 1989. The examiner indicated that there were no complications or sequelae from this injury. The Veteran denied having frequent or severe headaches, hypertension, and psychiatric symptoms such as depression or excessive worry, loss of memory, or nervous trouble of any sort. He reported that his civilian occupation was as a police officer. The Veteran's head, neurologic and psychiatric systems were normal on clinical evaluation. In December 1999, the Veteran completed an annual medical certificate on which he denied having any medical problems or having received treatment from a medical provider since his last certification. A May 2000 medical examination conducted in connection with the Veteran's National Guard membership showed that he reported a history of tension headaches since the age of 13 which are easily handled by aspirin. He also reported a history of a skull fracture in 1989 with no loss of consciousness or sequelae. He indicated that he was currently an active law enforcement officer in his civilian occupation. The Veteran's head, neurologic system, and psychiatric systems were examined and found to be normal. On a report of medical history, he denied having or ever having had psychiatric symptoms such as depression or excessive worry, loss of memory, and nervous trouble of any sort. The post-service record on appeal shows that in April 2004, the Veteran presented to a VA emergency room and requested a refill of his medications. The clinician noted that according to documentation he presented, the Veteran had contracted Dengue fever while working in Kosovo. Later that day, the Veteran reported that he had viral myocarditis and cardiomyopathy thought to be due to contracting Dengue fever while on vacation/work in Thailand. It was noted that the Veteran had "extensive records" from "multiple MDs at multiple sites." He did not report a history of a TBI or psychiatric symptoms. (The Board notes that the "extensive records" of the Veteran's treatment for Dengue fever have not been associated with the record on appeal). In August 2009, the Veteran again presented to a VA outpatient clinic. He was described as new to the clinic, but not to VA. He reported a history of multiple conditions, including depression and hypertension. He did not report a TBI and examination was normal in all pertinent respects, including a normocephalic, atraumatic head with reactive pupils and normal eye motion. In February 2014, the Veteran presented to VA for a new patient evaluation, stating that he wanted to compile all of his mental health records for a claim of service connection. He explained that he believed he was having "after effects" from a 1989 TBI. In August 2014, the Veteran submitted an application for VA compensation benefits, seeking service connection for multiple disabilities, including residuals of a TBI. In support of his claim, the Veteran submissions included a June 2014 neuropsychological evaluation performed by Karen Haskett, Ph.D. The report noted that the Veteran had been referred by his former psychotherapist in Ohio, Marcie Rogers, for evaluation of memory and cognitive difficulties as well as personality changes which he believed may be associated with a 1989 TBI. The Veteran reported to Dr. Haskett that in July 1989, after a night of "bar hopping with friends," he was "riding on a motorcycle with a side car which was involved in an accident and he was propelled from the vehicle onto the road." The report also includes a detailed post-service history, including employment at the Federal Bureau of Prisons, as a U.N. Peacekeeper, and as a civilian in the Air Force. As part of this history, the Veteran reported a history of Dengue fever while serving as a U.N. Peacekeeper in Kosovo. Dr. Haskett ultimately concluded that the relationship between the Veteran's cognitive deficits and personality changes and his in-service head injury "cannot be conclusively determined as insufficient history is available, particularly collateral information." She indicated, however, that the Veteran clearly had sustained a TBI of sufficient severity that it would likely have produced some sequelae. The Veteran also submitted an opinion from Craig T. Bash, MD, who concluded that the Veteran sustained a TBI in the 1989 accident which was "the primary cause of some of the disabilities of this appeal, and is also the in-service event that accounts for secondary illnesses he now suffers from." Dr. Bash's report also indicates that the Veteran "was a passenger and not the driver of the said vehicle and thus bears no personal liability for the event." Dr. Bash further noted that both TBI and Dengue can cause irreversible and progressive brain tissue damage and that the Veteran's encephalomalacia "is a result of trauma to the brain including trauma caused physical injury trauma (i.e.: Military TBI); and caused or aggravated by infection (i.e.: Dengue)." After reviewing the record, the Board finds that additional action is necessary prior to further appellate consideration. First, after the September 2018 Statement of the Case was issued in this appeal, the RO promulgated a September 2021 administrative decision in connection with a separate claim finding that the July 1989 accident was the result of the Veteran's own willful misconduct. The RO noted that the blood alcohol test administered at the time of the accident showed that the Veteran was intoxicated and, in the absence of evidence to the contrary, any injuries he sustained in the accident were the result of his own willful misconduct and therefore not in the line of duty. In Bernard v. Brown, 4 Vet. App. 384 (1993), the U.S. Court of Appeals for Veterans Claims held that before the Board may address a matter on appeal that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities. The Board finds that proceeding with a decision in this appeal at this juncture on the misconduct question would deprive the Veteran of due process. Thus, he must be given the opportunity to submit evidence and argument on the misconduct question, as it is a critical element in this appeal. The Board also finds that additional evidentiary development is required with respect the question of misconduct. First, it is unclear from the record whether a line of duty determination was made by the service department. The RO should undertake efforts to obtain any such line of duty determination, as well as any additional service treatment and personnel records relevant to the 1989 accident. In that regard, the Board notes that in his May 2021 opinion, Dr. Bash appears to quote records of treatment following the 1989 accident which are not included in the records on appeal; the opinion also contains assertions regarding details of the accident which are not included in the contemporaneous records. For example, Dr. Bash's opinion notes that the Veteran "was a passenger and not the driver of the said vehicle and thus bears no personal liability for the event." He also notes that "[t]he accident was heard by fellow officers with whom [the Veteran] had been with and witnessed by bystanders." The contemporaneous records currently before the Board, however, contain no details of the accident beyond that recorded in the July 1989 hospitalization summary, nor are there any witness statements documenting the details of the accident. The Board also notes that Dr. Bash's opinion appears to cite service treatment records indicating that the Veteran lost consciousness after the accident and remained unconscious from the time of impact until after he had arrived and was admitted to the ER. The record before the Board, however, contains only the July 1989 hospitalization records which indicate that the Veteran "arrived at the ER obviously intoxated [sic], with stable vital signs, communicative and oriented." Moreover, subsequent service treatment records reflect that the Veteran repeatedly denied a history of loss of consciousness. It is unclear if Dr. Bash had access to additional records which have not yet been associated with the claims file. The Board also observes that Dr. Bash's opinion references reports of previous evaluations including by Dr. Xenaski and Dr. Rogers. It does not appear that efforts have been undertaken to obtain these relevant private treatment records. The Board notes that at the Veteran's December 2020 hearing, his attorney described Dr. Xenakis as having performed a complete series of workups and developing a detailed medical opinion. As these evaluations appear highly relevant to the claim, efforts should be undertaken to obtain them. The Board also notes that the Veteran has reported that he was rejected for service in the Coast Guard in July 1992 and in the Army ROTC in July 1993 on the basis of his 1989 head injury. See e.g. September 1995 enlistment examination report of medical history. Additionally, during the December 2014 evaluation with Dr. Haskett, he recalled having a marked change in his behavioral characteristics following his 1989 injury. He indicated that he had received reprimands while working at the Federal Bureau of Prisons and as a civilian with the U.S. Air Force, and was reassigned to a remote area after he had difficulties interacting with others while working for the federal government as a U.N. Peacekeeper in Kosovo. Given these reports, efforts should be undertaken to obtain these employment records. The matters are REMANDED for the following action: 1. Undertake the necessary efforts to obtain any additional service treatment and personnel records, particularly records corresponding to the period of hospitalization from July 2 to 18, 1989, at Clark Air Force Base, and any line of duty determination regarding the July 1989 motorcycle accident. The RO should also seek to obtain records related to the Veteran's reports that he was rejected for service in the Coast Guard in July 1992 and in the Army ROTC in July 1993 on the basis of his 1989 head injury. 2. After obtaining any additional information and authorization from the Veteran, undertake the necessary efforts to obtain federal records of the Veteran's employment as a civilian with the U.S. Air Force, the Federal Bureau of Prisons, and as a U.N. Peacekeeper. 3. Contact the Veteran and ask him to submit or specifically identify relevant records, to include post-service records of treatment for his claimed TBI and Dengue fever, to include evaluations by Dr. Xenaski and Dr. Rogers, as well as records of his suspension while working for the Los Angeles Police Department. The RO should also afford the Veteran the opportunity to provide evidence and argument regarding the question of whether the July 1989 accident was the result of his own willful misconduct. 4. After undertaking any additional development deemed necessary, readjudicate the claims on appeal. If any benefit sought is not granted, issue a Supplemental Statement of the Case and provide the appropriate period of time to respond before returning the case to the Board. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.