Citation Nr: 18154162 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-60 253 DATE: November 29, 2018 ORDER Entitlement to service connection for residual disability of a head injury, to include traumatic brain injury, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time proximate to or during the appeal, a chronic residual disability of a head injury, to include traumatic brain injury. 2. Throughout the period on appeal, the most probative evidence of record does not reflect that it is at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic residual disability of a head injury, to include traumatic brain injury, are not met. 38 U.S.C. §§1110, 5107(b) (2012); 38 C.F.R. §§3.102, 3.303(a) (2018). 2. Throughout the period on appeal the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.16(a),(b) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to June 1970. Additional evidence, in the form of VA treatment records and a June 2017 miscellaneous disability benefits questionnaire, were associated with the claims file subsequent to the most recent, November 2016 statement of the case issued for the appeal herein. This evidence is considered to have been development by VA and the Veteran has not waived review of such. However, this evidence is either duplicative of other evidence of record or not relevant to the claims herein. Therefore, it is not necessary to remand these claims to the Agency of Original Jurisdiction (AOJ) for consideration of the evidence in the first instance. See 38 C.F.R. § 20.1304 (c). 1. Entitlement to service connection for chronic residual disability of a head injury, to include traumatic brain injury Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement for a current disability is satisfied if the disability is present at any point proximate to the claim, during the claim, or to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2014). If there is no evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, there must be a demonstration of symptoms proximate to, or since, the time the application is filed. Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998). The Veteran asserts that service connection is warranted for chronic residual disability of a head injury, to include traumatic brain injury. Specifically, in a July 2014 statement, the Veteran reported, in part, that his now service-connected headaches resulted in him falling and hitting his head on concrete during service in Vietnam. Similarly, in his November 2016 substantive appeal, he reported, in part, that, during service, a fellow soldier fell on the top of his head on concrete, that he went to a medic who patched his head and face, and that he has had headaches ever since. In an August 2017 statement, the Veteran reported, in part, that, during service in Vietnam, he fell and hit his head on a concrete slab with a fellow soldier landing on top of him. The initial threshold question for the Board is whether the Veteran has a current disability, and if so, whether that disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current residual disability of a head injury, to include traumatic brain injury, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky, 26 Vet. App. at 294 (2013); McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303 (a), (d). In this regard, a review of the record reflects December 2014, June 2015, and September 2015 VA treatment records describe the Veteran’s report of an in-service fall and noted he had headaches, dizziness, irritability, memory problems and loss of train of thought. Similarly, a November 2015 VA treatment record noted the Veteran had headaches, dizziness, irritability, memory problems and loss of train of thought. Additionally, a December 2014 VA neurology note, authored by Dr. Alton Bryant, noted that the Veteran reported he had hit his head on concrete in Vietnam when he was playing basketball, that he believed he had been unconscious for a time, that he had a fascial abrasion, and that he sought medical treatment. Dr. Bryant noted the Veteran reported he started having headaches at that time, which have continued and also reported that he got dizzy with headaches. Dr. Bryant provided an impression of history of traumatic brain injury with loss of consciousness, chronic headaches, dizziness memory loss and irritability. Similarly, of record is a December 2014 mental disorders disability benefits questionnaire, signed by Dr. Alton Bryant, which in part, noted the Veteran has history of traumatic brain injury with loss of consciousness and chronic post-concussion headaches and noted the Veteran fell on concrete in Vietnam, had brief loss of consciousness, and has subsequently had headaches, memory loss, irritability, dizziness. However, VA neurology notes, from Dr. Alton, dated prior to December 2014 noted, in part, headaches but not traumatic brain injury, a head injury or residuals thereof. In this regard, September 2010, March 2012, August 2012, March 2013, September 2013, August 2014 VA neurology notes from Dr. Alton provided, in part, an impression of chronic headaches. Further, a September 2010 neurology note stated, in part, the Veteran had had brain imaging which was normal. With regard to the Veteran’s reported headaches, the Veteran has been service-connected for tension headaches throughout the pendency of this appeal and the evaluation assigned for tension headaches is not at issue. Similarly, with respect to the Veteran’s reported irritability, loss of train of thought and memory loss, he has been service-connected for posttraumatic stress disorder (PTSD), which encompasses these symptoms, throughout the pendency of appeal. Further, with respect to memory loss, the record does not show the Veteran consistently complained of such. For example, although an April 2016 PTSD disability benefits questionnaire endorsed mild memory loss such as forgetting names, directions or recent events, a July 2014 PTSD disability benefits questionnaire documented, in part, the Veteran’s thought content was relevant and with adequate detail and his gross concentration and memory were adequate. Further, a September 2013 VA treatment record characterized the Veteran’s memory as intact and November 2013, May 2014, September 2014, March 2015, February 2016, and September 2016 VA treatment records documented the Veteran’s memory was grossly intact. With respect to the Veteran’s reported dizziness, a November 2013 VA treatment record noted, in part, rare dizziness, but no overt chest pains, very occasional dyspnea with exertion. In January 2015 and April 2016 VA treatment records, the Veteran, in part, denied dizziness. Further, other VA treatment records linked the Veteran’s reported dizziness to medications rather than residuals of a head injury. For example, a November 2014 VA treatment record noted in part, that higher doses of Trazodone led to dizziness. In a May 2015 VA treatment record, the Veteran reporting dizziness over the past two days linked to use of Tamsulosin. A March 2016 VA treatment record noted, in part, the Veteran felt short of breath and dizzy when walking and endorsed a diagnosis of migraines with dizziness and limited effect with use of Pamelor. Thus, the evidence does not reflect dizziness as a manifestation of a residual disability of a head injury. Moreover, the July 2014 PTSD disability benefits questionnaire documented, in part, the Veteran did not have a diagnosed traumatic brain injury. Further, while an April 2016 PTSD disability questionnaire alluded to a diagnosis by noting differentiation of symptoms with PTSD was possible, the examiner explicitly documented there was no occupational or social impairment due to traumatic brain injury. In this regard, the evidence of record does not show that any potentially existing pain as related to a prior head injury amounts to a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board also considered the Veteran’s statements purporting to relate a head injury, a traumatic brain injury, or residuals thereof, to an in-service fall on concrete while serving in the Republic Vietnam. Further, as described above, in the December 2014 VA neurology note, the Veteran reported he had hit his head on concrete in Vietnam when he was playing basketball. However, conversely, in a December 2009 VA examination, he reported, in pertinent part, that while serving in the Republic of Vietnam 1970 he had a person who had been killed fall on him and hurt his neck. In any event, the record reflects the Veteran served in the Republic of Vietnam from July 1969 to June 1970 with a military occupational specialty of a clerk typist. However, in the Veteran’s December 1970 VA examination report, he did not report any complaints with respect to his head, face or neck. Moreover, in a May 1971 examination, the Veteran reported he had his first headaches while in Vietnam, but did not report any prior head injury as causing his headaches. Additionally, a July 1971 VA examination found the Veteran’s cranial nerves were intact and there were no physiological abnormalities, no gross abnormalities, and no motor or sensory abnormalities. Further, it is not shown that the Veteran possesses the medical expertise necessary to be deemed competent to provide a probative opinion on a complex medical matter as a diagnosis related to a head injury or residuals thereof. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, even assuming arguendo that the Veteran does have a current chronic residual disability of a head injury, to include traumatic brain injury, the second element of the claim for service connection, medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease is not met. Specifically, review of the Veteran’s service treatment records reveals no diagnoses related to a facial abrasion, a head injury or residuals thereof, although a March 1970 service treatment record did note that the Veteran had a headache that day, and that he rubbed his temple which was tender. In this regard, his June 1970 examination, conducted in conjunction with his separation from service, found in pertinent part, the Veterans’ head, face, neck and scalp were clinically normal upon examination. This weighs against a finding of an in-service injury or event for this claim. Further, the Veteran stated at the time of the June 1970 examination that he was in good health. Additionally, while VA has not provided a medical examination to the Veteran for his claim for service connection for chronic residual disability of a head injury, to include traumatic brain injury, and although the existence of a traumatic brain injury was explicitly addressed by the July 2014 PTSD disability questionnaire, the standard for VA to provide an examination for this claim was not satisfied. In this instance, as discussed above, the only evidence of the existence of current disability is the Veteran’s bare assertion of such disability. Thus, a VA examination or a medical opinion for this claim is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Thus, the most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran currently has chronic residual disability of a head injury, to include traumatic brain injury. As such, service connection is not warranted. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As noted above, entitlement for service-connected disease or injury is specifically limited to cases where such incidents have resulted in a disability, and in absence of proof of a present disability, there can be no valid claim. Brammer, 3 Vet. App. at 225. In sum, the Veteran has not satisfied the necessary element of a present disability with respect to a head injury, traumatic brain injury, or residuals thereof, and thus, further discussion of the in-service incurrence or nexus elements is unnecessary. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for chronic residual disability of a head injury, to include traumatic brain injury. 2. Entitlement to a TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Rating boards are to refer to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements of 38 C.F.R. § 4.16 (a). 38 C.F.R. § 4.16 (b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991). The Board concludes that a TDIU is not warranted as the evidence does not show that the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment consistent with his educational and occupational background. A VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, was received on July 3, 2014. As such, the relevant period for consideration on appeal for entitlement to a TDIU is from one year prior to the date of receipt of the claim, namely July 3, 2013. From July 3, 2013, through February 2, 2014, the Veteran’s service-connected disabilities were dermatitis with fungus (rated 30 percent), tension headaches (rated 30 percent), post-operative status perforated duodenal ulcer (rated 20 percent) and bilateral hearing loss (rated noncompensable). The combined service-connected disability rating was 60 percent during this period. Effective February 3, 2014, service connection for PTSD was established and an evaluation of 50 percent was assigned. His combined service-connected disability rating then became 80 percent. Therefore, the Veteran did not meet the schedular criteria for a TDIU from July 3, 2013, through February 2, 2014, but did thereafter. After careful consideration, the Board finds the Veteran’s service-connected disabilities have not prevented him from securing and following substantially gainful employment. As such, referral for consideration of entitlement to a TDIU on an extraschedular basis for the period from July 3, 2013, through February 2, 2014, is also not warranted under 38 C.F.R. § 4.16 (b). In the Veteran’s July 2014 VA Forms 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, he reported he last worked as section leader in metal fabrication stamping and that he last worked full-time in February 2009. He also reported a high school eduction with two years of college education. However, in a June 2016 VA Form 21-4192, Request for Employment Information In Connection With Claim for Disability Benefits received from the Veteran’s last reported employer, the employer noted the Veteran was employed full-time as a shipping/receiving section leader from March 1987 to March 2011, and that he retired due to health reasons. Notably, it was also reported that he last worked part-time as recently as June 2016. In the Veteran’s July 2014 VA Forms 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, he reported his service-connected disabilities which prevented him from securing or following substantially gainful employment were headaches, PTSD and stress. As discussed, the Veteran is service connected for headaches and PTSD, but the Board is unclear as to the meaning of the Veteran’s reference to stress. However, in this regard, the July 2014 PTSD disability benefits questionnaire documented, in part, that the Veteran reported he retired about four years ago from his last position, and during his last position, he was stressed a lot because every time he turned around, he was pushed, and toward the end the owners sold out and were trying to push the older people out and it was looking like he was going to get fired so he quit. In the July 2014 PTSD disability benefits questionnaire, the Veteran also reported having an odd job here and there, but characterized such as “really nothing.” In this regard, as noted above, the record also reflects that Veteran has continued part-time employment as a June 2016 VA Form 21-4192, Request for Employment Information In Connection With Claim for Disability Benefits received from the Veteran’s last reported employer noted the Veteran last worked part-time as recently as June 2016. Additionally, although not proximate to the current claim, a November 2012 VA treatment record noted, in part, the Veteran worked part-time doing custodial work at a dentist office. It is unclear whether the Veteran’s part-time employment constitutes marginal employment as his earnings and hours are not of record. See 38 C.F.R. § 4.16 (a) (noting the general definition of marginal employment as annual income not exceeding the U.S. Department of Commerce, Bureau of the Census, poverty threshold for one person). Nonetheless, as discussed below, the medical evidence of record does not reflect the Veteran is prevented from securing or following substantially gainful non-marginal employment due to his service-connected disabilities. In this regard, the medical evidence shows that Veteran’s PTSD was productive of, at worst, occupational and social impairment with reduced reliability and productivity. Specifically, December 2013 and April 2016 VA PTSD disability benefits questionnaires each found the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity. A July 2014 PTSD disability benefits questionnaire endorsed diagnoses of PTSD, unspecified depressive disorder, and agoraphobia, and found it was not possible to differentiate what symptoms were attributable to each diagnosis but found that these disorders were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The July 2014 PTSD disability benefits questionnaire also stated, in part, that regarding job-related functional impairments, the PTSD and agoraphobia presented significant impairment in the Veteran’s ability to function away from his home and noted he had significant difficulties with normal social interaction and would likely do better in situations requiring a minimum of interaction with others. Thereafter, a December 2014 mental disorders disability benefits questionnaire endorsed a diagnosis of PTSD and noted specific symptoms but did not provide an assessment as to occupational or social functioning. The Board is sympathetic to the Veteran’s assertions regarding the occupational impact of his PTSD; however, this impact is compensated by his current schedular rating for PTSD. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Moreover, while the Veteran’s service-connected PTSD causes some economic impairment, his assigned disability rating contemplates his level of occupational impairment. Likewise, his other service-connected dermatitis with fungus, tension headaches, post-operative status perforated duodenal ulcer and bilateral hearing loss, even when considered in combination with his PTSD, have not been shown to prevent substantially gainful employment. A September 2015 hearing loss and tinnitus disability benefits questionnaire found the Veteran’s hearing loss impacted ordinary conditions of daily life, including ability to work, specifically that he said “what” a lot. An April 2016 headaches disability benefits questionnaire found the Veteran’s headache condition impacted his ability to work in that he must lay down and relax and use medications. Further, the Veteran’s medical treatment records do not reflect his service-connected dermatitis with fungus, tension headaches, post-operative status perforated duodenal ulcer and bilateral hearing loss preclude employment. Significantly, the Veteran did not even mention his service-connected dermatitis with fungus, post-operative status perforated duodenal ulcer, or bilateral hearing loss, on his application for a TDIU as a cause of his unemployability nor has he asserted such in other statements. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995) (holding that the Board may consider many factors when assessing the credibility and weight of lay evidence, including self-interest or bias, internal consistency, and consistency with other evidence). In consideration of the evidence, the Board finds that the Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. Although there are some limitations, the Veteran would be able to secure or follow an occupation, based on his educational and vocational history. In this regard, the Board recognizes the record reflect the Veteran has continued with part-time employment, including with the same company from which he retired. Further, the medical evidence of record does not show that the Veteran is prevented from securing or following substantially gainful employment due to his service-connected disabilities and the Board finds this medical evidence to be more probative than the Veteran’s lay statements of his alleged unemployability. As the preponderance of the evidence is against the claim for entitlement to a TDIU, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. Accordingly, entitlement to a TDIU is denied for the entire rating period on appeal. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel
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