Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is remanded.
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Citation Nr: 18113238 Decision Date: 06/21/18 Archive Date: 06/21/18 DOCKET NO. 14-13 322 DATE: June 21, 2018 ORDER Entitlement to service connection for complex integrated cerebral function disturbance, claimed as a residual of traumatic brain injury (TBI) other than migraine headaches, is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another person is remanded. FINDING OF FACT The competent evidence is in relative equipoise regarding whether the Veteran currently has complex integrated cerebral function disturbance as a residual of TBI during his period of service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, service connection for complex integrated cerebral function disturbance, claimed as a residual of TBI other than migraine headaches, is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty in the Army from August 1988 to March 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal of September 2011, August 2014, and January 2015 rating decisions. July 2016 and July 2017 Board decisions denied the two claims on appeal, and the Veteran appealed the denials to the United States Court of Appeals (CAVC). In February 2017 and March 2018, respectively, the CAVC granted a Joint Motion for Partial Remand and a Joint Motion for Remand of the parties, which vacated the Board’s decisions and remanded the matters to the Board for action consistent with the Joint Motions. The Board is aware that the Veteran has initiated an appeal regarding additional claims that were adjudicated in an April 2017 rating decision, but as a statement of the case has not been issued as to those matters, they are not fully before the Board and will therefore not be addressed. Service connection for complex integrated cerebral function disturbance, as a residual of TBI other than migraine headaches is granted. The Veteran contends he has a complex integrated cerebral function disturbance, which resulted from a TBI in service. Service connection has been established (in a July 2008 rating decision), for headaches and left supraorbital scar, as residuals of a head injury (truck accident in July 1990). The Veteran asserts that additional residuals have resulted from the head injury, to include memory loss, concentration problems, and cognitive deficiencies. It is also noted that service connection is in effect for posttraumatic stress disorder (PTSD), and that there is an overlap of PTSD and head injury symptoms. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Upon review of the service records, medical records, and lay statements, the Board concludes that the evidence is in relative equipoise as to whether the Veteran has a current diagnosis of complex integrated cerebral function disturbance that is related to a TBI in service, and that with resolution of reasonable doubt in his favor, service connection is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The record contains much conflicting evidence regarding whether the Veteran has current complex integrated cerebral function disturbance or residuals of a brain injury other than migraine headaches. Private medical reports submitted are favorable to the claim, while the VA medical reports are unfavorable and generally conclude that he had no TBI residuals other than headaches. Such evidence is described, chronologically, as follows. On private examination in September 2008, Dr. Ellis provided a diagnosis of complex integrated cerebral function disturbance, related to brain injury from trauma. At the time of an August 2009 VA examination to assess his PTSD, the Veteran acted as if he was having significant problems with his memory. He was given cognitive screening and administered selected scales of the Wechsler Adult Intelligence Scale III, because he reported a TBI in service, but the examiner opined that the Veteran was withholding his maximum effort during the examination. In any case, the Veteran’s long-term memory was estimated to fall within the average to high range based on an information scale score of 11. On March 2010 VA TBI examination to assess his headaches, he denied experiencing symptoms such as dizziness, seizures, balance or coordination problems, pain, autonomic dysfunction, numbness, weakness, mobility problems, sleep disturbance, fatigue, malaise, neurobehavioral changes, memory impairment, and physical symptoms such as vision problems and speech difficulty. Examination revealed, among other things, that his memory, attention, concentration and executive functions were normal. Also, judgment, social interaction, orientation, motor activity, and visual spatial orientation were all found to be normal, as were communication and consciousness. The only residuals of TBI found were headaches. In April 2011, the Veteran underwent VA neuropsychological testing. He described symptoms such as forgetfulness, headaches, occasional dizziness, ringing in the ears, fatigue, depression, irritability, and bad decision-making. The examiner noted that the Veteran was vague during the interview and appeared to be confused at times. He had significant delays in responding and appeared to have difficulty recalling even basic historical information, such as where he grew up and what year he graduated from school. The examiner further noted that the Veteran was a poor historian who exhibited significant delays in responding, despite clear, coherent and connected thinking. She reported that the Veteran put forth poor effort on the evaluation and, as a result, she was unable to draw a conclusion as to the existence of any cognitive residuals of a brain injury. In June 2011, a VA examiner who reviewed the Veteran’s claims file opined that the Veteran did not have any residuals of a TBI other than headaches (citing in support entries in the Veteran’s medical records, to include on August 2009 PTSD examination, on March 2010 VA TBI examination, and on April 2011 VA evaluation. Essentially, the examiner indicated, there were no objective data to support a diagnosis of complex integrated cerebral function disturbance. The examiner explained that disturbances of complex integrated cerebral function include defects in orientation, ability to abstract or understand concepts, memory, judgment, ability to initiate and perform planned activity, and acceptable social behavior. The examiner asserted that there was no evidence of any objective psychometric testing for the 2008 diagnosis by Dr. Ellis that would support a diagnosis of complex integrated cerebral function disturbance. In August 2014, Dr. Ellis re-examined the Veteran, and reported that the Veteran’s wife had noticed TBI symptoms such as difficulty communicating, irritability, difficulty forming and making decisions and arguing that something happened when it really did not. He stated that the Veteran has had difficulty with concentration, thinking, and speech and that he felt withdrawn; he attributed the Veteran’s symptoms to both TBI and his service-connected PTSD but noted that the Veteran’s slowness in his responses and in responding to jokes and conversation was consistent with brain injury and different than PTSD. Similarly, in an April 2017 medical report, Dr. Ellis again described the Veteran’s accident in service, and asserted that the Veteran was an “individual who obviously had a change in his IQ and mentation.” On March 2017 neuropsychological testing by the VA examiner who had tested the Veteran in April 2011, the Veteran presented with memory complaints, and after various tests, the examiner noted the Veteran gave variable effort on testing and that his performance on the evaluation was similar to the previous one in 2011; she concluded that the Veteran was either unable or unwilling to provide his best effort on testing and that she was unable to draw any conclusions as to the Veteran’s cognitive status. Finally, in a March 2018 examination report, a private physician, Dr. Bash provided an opinion that was consistent with that of Dr. Ellis. He essentially asserted that the Veteran should be separately rated for his PTSD, depression, anxiety, dizziness/headaches, and cognitive disabilities. In evaluating the conflicting evidence as to the Veteran’s current diagnosis, the Board finds that the reports are credible and authored by competent evaluators. That is, there is no evidence to suggest that any of the VA examiners (a nurse practitioner and clinical neuropsychologists) or private physicians (Dr. Ellis and Dr. Bash are shown by their curriculums vitae to be a Board-certified physician of occupational and environmental medicine and a neuroradiologist, respectively) are not qualified through education, training, and experience to offer a medical diagnosis. Therefore, the Board must assess the probative value of the medical opinions, considering whether greater weight may be placed on one opinion over another depending on factors such as reasoning employed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is also generally based on the scope of the examination or review, as well as the relative merits of the analytical findings, and the probative weight of a medical opinion may be reduced if the physician fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The evaluators have all had access to pertinent records in the claims file, have personally examined the Veteran, documented the Veteran’s medical history and complaints, and provided findings with rationale including citation to facts in the record. The Veteran underwent additional neuropsychiatric testing both at VA and privately (with Dr. Bash in particular). Dr. Bash also furnished references to medical literature to support his opinion. Objective testing was performed by VA and the private physicians, and while brain imaging was not obtained, such traditional studies may not always detect TBIs (see the February 2017 and March 2018 Joint Motion references to VA Fast and Training Letters in that regard). There are some noteworthy inconsistencies in the record. For example, the date of onset of memory problems and whether the Veteran lost consciousness from a July 1990 motor vehicle accident have been reported differently over the years to VA and private medical providers. The Veteran has also been found to be a poor historian and has been noted to give poor effort on psychometric testing by a VA examiner, but the evidence does not settle to a definitive degree whether he was incapable (due to brain injury residuals, for instance) or merely unwilling to cooperate fully in the assessment. February 2018 statements by various family members attest to the Veteran’s functional limits, including memory, judgment, and behavioral problems. In considering the totality of the evidence including the unfavorable VA reports and the favorable private reports, the Board finds that the evidence is in equipoise regarding whether the Veteran has current residuals of TBI other than headaches. When this occurs, the reasonable doubt doctrine (cited above) requires resolution of the matter in the Veteran’s favor. After finding that the Veteran, as likely as not, has a current diagnosis pertaining to residuals of TBI, the Board turns to the question of whether his residuals of TBI, diagnosed as complex integrated cerebral function disturbance, is related to the TBI sustained by him during service, as claimed. The record contains conflicting or unclear evidence regarding the etiology of his current diagnosis, as noted in the reports by Dr. Ellis and Dr. Bash. (VA evaluators did not furnish an etiology, given that a likely diagnosis was not made.) For example, Dr. Ellis in September 2008 noted both a head injury from an in-service truck accident in July 1990 and exposure to constant explosions. In August 2014, Dr. Ellis cited to a motor vehicle accident in service and chemical exposures during the Veteran’s Desert Storm service, and in April 2017, he attributed IQ and mentation change to the truck accident in service. Dr. Bash in March 2018 also cited to the July 1990 truck accident as the etiology of the Veteran’s TBI, but also noted TBI from mortar round blast and demolition explosives during the Gulf War. Military unit records show that for a few weeks the Veteran was likely exposed to extensive explosions of ammunition, mortars, rockets, and missiles (a fact sheet regarding the movements of the Veteran’s company unit was submitted for the record in April 2018). Dr. Bash also stated that the Veteran purportedly inhaled a high amount of hydrocarbons while in Desert Storm from his exposure to burning oil fields on multiple occasions, which can potentially cause neurological damage. In any case, all etiologies arose from the Veteran’s period of service, with the most likely etiology being the head injury sustained in July 2010 (as endorsed by Dr. Ellis in particular), which also gave rise to the Veteran’s service-connected headaches and left supraorbital scar. In short, the Veteran’s residuals of TBI other than headaches are shown to be attributable to injury sustained during active service. REASONS FOR REMAND Entitlement to SMC based on the need for the regular aid and attendance of another person is remanded. The Veteran’s SMC claim is inextricably intertwined with the matter decided herein. In light of the decision, the Board will defer a determination regarding SMC at this time, pending the assignment of an evaluation for complex integrated cerebral function disturbance residuals of TBI by the Agency of Original Jurisdiction (AOJ). The Board acknowledges the statements of Dr. Ellis, dated in August 2014 and April 2017, and Dr. Bash, dated in March 2018, pertaining to the Veteran’s functional limitations and need for supervision in completing activities of daily living. However, after reviewing the claims file and assigning a rating for the residuals of brain injury other than migraine headaches, if the AOJ finds that the evidence does not support SMC based on the need for aid and attendance, an examination should be arranged, as requested by the Veteran’s representative in June 2018. The matter is REMANDED for the following: Readjudicate the SMC claim, after reviewing the entire claims file (including additional evidence received in April 2018 consisting of lay statements of family and friends and a March 2018 private medical report from Dr. Bash) and assigning a rating for the complex integrated cerebral function disturbance, as a residual of a TBI other than migraine headaches. If a favorable decision cannot be made, arrange for a VA SMC (aid and attendance) examination of the Veteran. All indicated studies should be performed. Upon examination and interview of the Veteran and review of his claims file, the examiner should indicate whether the Veteran’s service-connected disabilities result in any of the following: a. Blindness or near blindness so as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; b. An inability to dress or undress himself, or to keep himself ordinarily clean and presentable; c. Frequent need of adjustment of any special prosthetic or orthopedic appliances which due to a particular disability cannot be done without aid; d. Inability to feed himself through loss of coordination of upper extremities or through extreme weakness; e. Inability to attend to the wants of nature; f. Incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; g. The loss or loss of use of either (i) both lower extremities; or (ii) one lower extremity and one upper extremity, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or h. The loss or permanent loss of use of one or both feet. To make this determination, the examiner must consider whether the Veteran’s actual remaining foot function, including balance and propulsion, could be accomplished equally well by an amputation stump with prosthesis. A full rationale must accompany all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel