Citation Nr: 1648513	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  09-44 326	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for residuals of a back injury.

2.  Entitlement to service connection for the residuals of a traumatic brain injury (TBI).

3.  Entitlement to service connection for a dental condition.


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David R. Seaton, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1979 to November 1979 and from March 1980 to November 1982.
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

This matter was previously before the Board, and, in March 2015, the Board remanded this matter for further development.  Further development in substantial compliance with the Board's remand instructions has been completed.

The Board also notes that it has jurisdiction over a contested claim for apportionment.  That issue is disposed of in a separate Board decision.


FINDINGS OF FACT

1.  The claimed residuals of a back injury are not related to a period of service and did not manifest within one year of separation of service.

2.  The claimed residuals of a TBI are not related to a period of service, did not manifest within one year of separation of service, and did not result in Parkinsonism, dementia, depression, or diseases of hormone deficiency.

3.  The current diagnosis of teeth loss is medically related to dental trauma that occurred in-service.

CONCLUSIONS OF LAW

1.  The criteria for service connection for the residuals of a back injury have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016).

2.  The criteria for service connection for the residuals of a TBI have not been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016).

3.  The criteria for service connection for a dental condition have been met.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of his claim at this time is warranted.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records, VA treatment records, and private treatment records have been obtained.  Additionally, the Veteran testified at a personal hearing, and a transcript of the hearing is of record.

The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board notes that this matter was previously remanded in order to obtain additional treatment records and provide the Veteran with a back examination, dental examination, and TBI examination.  Additional treatment records have been associated with the record, and the Veteran was provided with a back examination and a dental examination.  The Veteran was scheduled for back examination and informed of possible consequences of failing to appear, but the Veteran failed to appear for the previously scheduled back examination.  Therefore, the Board finds that the RO has substantially complied with the Board's remand instructions.  

The Board notes that, in a September 2016 written statement, the Veteran objected to the adequacy of the TBI examination, because the examiner allegedly mischaracterized the Veteran's reports of his symptoms in the subjective symptoms or complaints section of the examination.  Nevertheless, the Board finds that this examination is still adequate, because the examiner ultimately relied of the Veteran's description of an in-service incurrence to determine that the trauma was not sufficiently severe enough to be related to any current symptoms.  Additionally, the Veteran did not describe what the correct characterization of the subjective symptoms and complaints section should have been.  Finally, the Veteran indicated that he would submit additional evidence to rebut the examiner's findings, but, as of this decision, the Veteran has not submitted any such evidence.

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met.

Service Connection

The Veteran is seeking service connection for multiple disabilities.  In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.  Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases, like arthritis and diseases of the nervous system, when manifested to a compensable degree within a year of separation from service.  38 C.F.R. §§ 3.307, 3.309.  Service connection may also be granted on a secondary basis for Parkinsonism, dementia, depression, and diseases of hormone deficiency may be granted as secondary to TBI.  38 C.F.R. § 3.310(d).

Dental

At issue is whether the Veteran is entitled to service connection for a dental condition.  An August 2016 VA dental examination diagnosed the Veteran with loss of teeth (missing: 1, 4, 13, 16, 17, 18, 19, 30, & 32) due to trauma to his jaw incurred in-service.  The Veteran testified at a hearing before Board that he lost his teeth when he was attacked by a gang of Marines after he left a bowling alley.  See Transcript, pp. 6-8.  A May 1981 service treatment record indicates that the Veteran experienced dental trauma after he was attacked at an enlisted club.  The Veteran's service separation examination from his second period of service indicates that the Veteran had missing, non-restorable, and restorable teeth (missing: 4, 16, 30, & 32; non-restorable: 20; restorable: 19, 21, & 31).  

The Board notes that the August 2016 examiner indicated that the Veteran did not have a current disability, because his missing and broken teeth were replaced and restored.  Nevertheless, the schedular rating criteria anticipate assigning a non-compensable disability rating for conditions that can be restored by suitable prosthesis.  38 C.F.R. § 4.150, Diagnostic Code 9913.  Therefore, the Board finds that the weight of the evidence is sufficiently to evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Entitlement to service connection for a dental condition is granted.

Back

At issue is whether the Veteran is entitled to service connection for the residuals of a back injury.  VA regulations provide that when entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be rated based on the evidence of record.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.  38 C.F.R. § 3.655.

Here, the weight probative evidence of record is not sufficient to demonstrate a medical link between the issue on appeal and the Veteran's period of active service.  The Veteran was scheduled for a VA examination, because, as discussed in the March 2015 Board decision, there was insufficient evidence to support a grant of service connection without the aid of an additional VA back examination and the needed opinion.  The Veteran was scheduled for a back examination, but, unfortunately, the Veteran failed to appear.  The Veteran's refusal to participate in the adjudication of his claim means that the evidentiary framework which did not and does not support a claim for service connection remains in place.  "[T]he duty to assist is not always a one-way street.  If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

The Board is deeply appreciative of the Veteran's lengthy military service, and has striven to assist him in obtaining the evidence needed to satisfy his claim.  Unfortunately, without his participation the Board's hands have been tied.  As the criteria for service connection for the residuals of a back injury have not been established by the evidence of record, the claim is denied

TBI

At issue is whether the Veteran is entitled to service connection for the residuals of a TBI.  The weight of the evidence indicates that - although the Veteran did experience a head injury in-service -  the Veteran is not entitled to service connection.

The Board also notes that the Veteran has been granted service connection for posttraumatic stress disorder (PTSD).  The residuals for TBI can manifest in psychiatric symptoms and physical symptoms.  38 C.F.R. § 4.124a, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.  Nevertheless, the Veteran's disability rating for PTSD already anticipates all of the Veteran's psychiatric symptoms.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Thus, in order to avoid the practice of pyramiding, the assignment of multiple disability ratings for the same symptoms, the Veteran must manifest physical symptoms in order to be entitled to a separate disability rating for TBI. 38 C.F.R. § 4.14.  Nevertheless, the presence of psychiatric symptoms associated with TBI could provide relevant evidence that any physical symptoms associated with TBI should be considered service-connected.  Thus, the Board shall consider both psychiatric and physical symptoms in determining whether the Veteran is manifesting symptoms related to an in-service TBI, but will only award service connection based on the present manifestation of symptoms that would not pyramid with his psychiatric disability rating.

The Veteran participated in a personal hearing before the Board in January 2014.  The Veteran testified that he was attacked by a gang of Marines in 1980 at Camp Pendleton after he left a bowling alley, and that he lost consciousness during the course of the attack after sustaining several blows to the head.  The Veteran further testified that he was hospitalized with a concussion, and that he was given stitches in his mouth and head.  The Veteran claimed that he was prescribed over-the-counter pain medication to treat headaches immediately after the attack, and that he was given a restricted duty profile during his period of recovery.  The Veteran indicated that he currently had scars on his head as a result of the attack, and that he currently had the following neurological symptoms: difficulty performing tasks on the job; memory problems; an inability to drive.  See Transcript.

The Veteran's service treatment records indicate that he was provided emergency care in May 1981 after he was attacked at an enlisted club and kicked and hit in the mouth.  The Veteran was diagnosed with dental trauma, and his lips were sutured.  The Veteran was also prescribed pain medication.  Nevertheless, the Veteran's service treatment records are silent for any further reports of a head injury.  The Veteran's separation examination indicated that his head was evaluated as normal, and he was evaluated as psychiatrically and neurologically normal.

VA treatment records throughout the pendency of the appeal indicate that a head injury was listed on the Veteran's list of health problems.  Additionally, the Veteran sought treatment at a VA psychiatric and TBI clinic.  Nevertheless, the VA treatment records indicate that the Veteran was oriented in three spheres, and that his motor and sensory functions were grossly intact.  Additionally, the Veteran was consistently described as rationale and coherent.  

In a September 2006 physical to enroll in VA health care, the Veteran denied experiencing the following neurologically symptoms: headaches, dizziness, convulsions, memory loss, paralysis, and loss of consciousness.  The VA physician indicated that there was no sign of trauma to the head and that he was neurologically normal.

In May 2007, the Veteran sought treatment for chronic headaches.  The Veteran reported that he had daily headaches approximately 15 times per month.

In a June 2007 statement, the Veteran indicated that in 1981 he was attacked by 12 Marines, and that he sustained multiple sustained multiple blows to the head and was knocked unconscious.  The Veteran further indicated that he experiences headaches to this day.  The Veteran consistently maintained this reports in subsequent written statements throughout the period on appeal.

The Veteran underwent a VA psychiatric examination in April 2009.  The examiner noted that the Veteran was oriented to person, time, and place, and he was able to spell a world forward and backwards.  Nevertheless, the Veteran had a rambling thought process and was unable to perform serial sevens.  The examiner noted that the Veteran's remote memory, recent memory, and immediate memory were mildly impaired.  The Veteran's judgement was sufficient to understand the outcome of his behavior.  Nevertheless, the Veteran's behavior was inappropriate, because he was unable to interpret proverbs.  Finally, the Veteran's speech was clear and coherent but slurred.

A November 2009 VA treatment record indicated that the Veteran's headaches were controlled with high blood pressure medication.

The Veteran underwent another VA psychiatric examination in June 2010.  The Veteran was oriented to person, time, and place, but he was unable to perform serial sevens or to spell a word backwards.  The Veteran's thought processes were unremarkable, and his memory was normal.  The Veteran's speech was unremarkable, and his judgement was sufficient to understand the outcome of his behavior.  The Veteran reported social avoidance which the examiner classified as inappropriate behavior.  

The Veteran underwent a general VA examination which included a description of his hypertension symptoms in December 2011.  The examiner noted that the Veteran first developed hypertension in 2008 and noted the following associated symptoms: headaches and dizziness.  The examination did not memorialize abnormal motor activity, abnormal visual spatial orientation, or any neurobehavioral effects.

The Veteran underwent another VA psychiatric examination in December 2011 as well.  The Veteran's orientation was within normal limits and his thought processes were appropriate, but the examiner noted that the Veteran had memory problems including forgetting directions and recent events.  The examiner indicated that the Veteran's behavior was appropriate; his communication was within normal limits; and that his judgement was not impaired.

The Veteran underwent a VA occupational therapy consult in January 2012 in order to evaluate his driving skills.  The VA provider indicated that the Veteran demonstrated adequate vehicle control skills and visual search skills with appropriate driver interaction skills on all levels of traffic.  The provider further recommended that the Veteran continue driving, but that an electronic navigation system was recommended due to the Veteran's impaired memory skills.

The Veteran underwent another VA psychiatric examination in May 2015.  The examiner noted that the Veteran was oriented in four spheres, maintained fair eye contact, and that he was in no acute distress.  The examiner determined that the Veteran was not diagnosed with the residuals of a TBI, and that the Veteran does not have a medical diagnosis (such as the residuals of a TBI) relevant to the understanding or management of his mental health.

The Veteran underwent a TBI examination in February 2016.  The Veteran reported that the condition began after he was attacked by a group of Marines in 1980, and that he remembers waking up in the hospital after the attack.  The Veteran indicated that he was put on light duty as a result of the attack.  The Veteran stated that prior to the incident he was responsible for driving trucks and operating heavy equipment, but that he was unable to resume his responsibilities after the attack.  The Veteran also claimed that he manifested headaches, memory problems, and dizziness ever since.  The examiner determined that: the Veteran's judgement was normal; his social interaction was routinely appropriate; he was always oriented to person, time, place, and situation; his motor activity was normal; his visual spatial orientation was normal; there were no neurobehavioral effect; he was able to communicate; and he had normal consciousness.  The examiner opined that the Veteran incurred a TBI, but that his condition has resolved.  The examiner determined that the TBI that the Veteran described  would be classified as a mild TBI or a grade three cerebral concussion, and that such types of trauma are known to resolve in approximately 90 days; but that they can last up to several months.

The Veteran underwent another VA psychiatric examination in August 2016.  The examiner determined that the Veteran had not been diagnosed with the residuals of a TBI.  The examiner noted that the Veteran had memory problems resulting in the retention of only highly learned material while forgetting to complete tasks, but that these were due to his previously diagnosed psychiatric disorder.  The examiner also noted that the Veteran reported experiencing headaches.

The Veteran is not entitled to service connection for the residuals of a TBI.  The Veteran clearly incurred a TBI in-service in May 1981, and he is clearly manifesting symptoms that are sometimes associated with the residuals of a TBI including: physical symptoms (like headaches and dizziness) and mental symptoms (including impairment of memory).  The Board notes the Veteran's reports that he is unable to drive anymore as well.  The January 2012 VA occupational therapy consult, however, indicated that the Veteran's difficulty driving was ultimately due to memory problems rather than a separate symptom.  Nevertheless, the weight of the evidence is not sufficient to demonstrate that it is at least as likely as not that a medical nexus exists between an in-service TBI and his current symptoms.  Specifically, the weight of the evidence indicates that the Veteran's TBI resolved within several months of the incident.  Moreover, the Veteran's mental symptoms are related to his previously service-connected PTSD rather than a TBI, and the his physical symptoms are related to hypertension rather than a TBI.

The weight of the evidence indicates that the residuals of the Veteran's in-service TBI resolved within months of the incurrence.  In February 2016, the Veteran was provided a TBI examination, and the examiner determined, based on the Veteran's description of his symptoms, that the in-service TBI was a type of TBI that would resolve in several months after the injury.  The Board finds this opinion persuasive and affords it great weight, because it is based on sufficient facts and data applied to reliable principles and methods.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Furthermore, the Veteran's separation examination indicated that his head was evaluated as normal, and he was evaluated as psychiatrically and neurologically normal.  Therefore, the weight of the evidence indicates that residuals of the Veteran's May 1981 TBI resolved prior to the Veteran's separation from service in November 1982.

The Veteran's physical symptoms are related to the Veteran's hypertension rather than a TBI.  The Board acknowledges the Veteran's reports that he continually manifested physical symptoms, including headaches, since the TBI in 1981.  The Veteran is competent to report such symptoms; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); but the Board cannot afford these reports much weight.  As previously noted, the Veteran's separation examination evaluated the Veteran as normal.  Furthermore, the earliest reports of his physical symptoms did not appear until May 2007, and, in a September 2006 physical, the Veteran specifically denied physical symptoms like headaches and dizziness.  Additionally at the time of the September 2006 physical, the Veteran was evaluated as neurologically normal.  A November 2009, VA treatment record indicated that the Veteran's headaches were controlled with high blood pressure medication.  Finally in December 2011, a VA examiner evaluating the Veteran's hypertension noted headaches and dizziness; which - although not explicitly stated - indicate that headaches and dizziness are related to hypertension.  Therefore, the weight of the evidence indicates that the Veteran's physical symptoms are related to his hypertension rather than the residuals of a TBI.

The Veteran's mental symptoms are related to the Veteran's previously service-connected PTSD.  The Veteran underwent multiple VA psychiatric examinations.  None of these examinations indicated that the Veteran's had a current diagnosis of residuals of a TBI.  Furthermore, the VA psychiatric examinations in May 2015 and August 2016 both indicated that the Veteran's mental symptoms were due to his psychiatric disorders rather than the residuals of a TBI.  The Board finds these opinions persuasive and affords them great weight as well, because they were also based on sufficient facts and data applied to reliable principles and methods.  See Nieves-Rodriguez.  Therefore, the Veteran's psychiatric symptoms are not sufficient to give rise to a separate disability rating for the residuals of a TBI.  38 C.F.R. § 4.14.  Furthermore, the Veteran's psychiatric symptoms do not make it more likely that the Veteran's physical symptoms are related are related to an in-service TBI either.
As previously noted, the residuals of a TBI are presumed to be related to service if they manifest within one year of separation of service.  38 C.F.R. §§ 3.307, 3.309.  Nevertheless, the Board has determined that the Veteran's physical symptoms manifested after September 2006, and therefore they did not begin to manifest with one year of separation of service.  Furthermore, the Veteran's mental symptoms - to the extent that they manifested within one year of service - are anticipated in his disability rating for his previously service-connected PTSD.  38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.  Therefore, these symptoms cannot provide an adequate basis for a separate disability rating.  38 C.F.R. § 4.14

The Board also notes that the Veteran's claim for service connection for residuals of a TBI could also be interpreted as a claim for service connection for migraines, because the Veteran's claimed residuals would ostensibly include headaches.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Nevertheless, the Veteran is still not entitled to service connection, because the in-service TBI resolved within months of the incurrence; and his headaches and dizziness, did not begin to manifest until decades after separation from service.  

Finally, The Board notes, once again, that service connection for Parkinsonism, dementia, depression, and diseases of hormone deficiency may be granted as secondary to TBI absent clear and convincing evidence to the contrary.  38 C.F.R. § 3.310(d).  Nevertheless, the Veteran has not been diagnosed with any of these conditions, and, therefore, they do not provide a valid claim for service connection.  

Here, the weight of the probative evidence of record simply fails to demonstrate a medical link between the his current symptoms and an in-service TBI, of which there is also no record of the manifestation of residuals of a TBI within one year of separation of service.  Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  As such entitlement to service connection for the residuals of a TBI is denied.



ORDER

Service connection for a dental condition is granted.

Service connection for a back disorder is denied.

Service connection for the residuals of a TBI is denied.




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs