12-34 529
12-34 529
| Board of Vet. App. | Feb 2, 2017Background
- Veteran served in Army (1979–1982; 1996) and Air Force (2005–2006) with additional Guard/Reserve service; personnel record shows a parachute jump on January 25, 1997.
- Veteran reports two in-service head injuries: a November 1981 altercation (no loss of consciousness in records) and a January 1997 parachute incident (buddy statement reports disorientation/possible brief LOC).
- Post-service treatment includes cognitive complaints and diagnoses (PTSD, Major Depressive Disorder, and cognitive disorder NOS); multiple VA and private evaluations addressed possible TBI.
- VA obtained multiple opinions: October 2014 exam (initially of unclear probative value), a September 2015 addendum, a private 2016 opinion (speculative), and a thorough June 2016 VA neuropsychology opinion finding that the 1997 event likely met acute TBI criteria but that any concussion/TBI resolved without chronic residuals; current cognitive symptoms were attributed to PTSD/MDD.
- Board found the June 2016 VA neuropsychologist’s opinion highly probative, concluded there are no current diagnosed TBI residuals, and denied service connection for TBI.
- Separately, effective-date issues for a 70% PTSD rating, TDIU, and Dependents’ Educational Assistance (all granted effective March 8, 2016) were remanded to the AOJ for statement of the case and further processing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for residuals of TBI | Veteran contends 1981 and 1997 head injuries produced ongoing TBI residuals (cognitive symptoms) | VA/RO: no current diagnosis of TBI residuals; medical opinions show resolution and attribute symptoms to PTSD/MDD | Denied — preponderance of evidence shows no current TBI residuals |
| Effective date for 70% PTSD rating | Veteran/rep requested reconsideration of March 8, 2016 effective date | RO assigned March 8, 2016; further adjudication necessary | REMANDED to AOJ for SOC and further development |
| Effective date for TDIU | Veteran seeks earlier effective date than March 8, 2016 | RO assigned March 8, 2016; AOJ to address NOD/reconsideration | REMANDED to AOJ for SOC and further development |
| Effective date for Dependents' Educational Assistance | Veteran seeks earlier effective date than March 8, 2016 | RO assigned March 8, 2016; AOJ to adjudicate appeal notice | REMANDED to AOJ for SOC and further development |
Key Cases Cited
- Dyment v. West, 13 Vet. App. 141 (Board remand substantial compliance standard)
- Dingess v. Nicholson, 19 Vet. App. 473 (VCAA notice applies to all elements including effective date)
- Barr v. Nicholson, 21 Vet. App. 303 (requirements for adequacy of VA examinations)
- Shedden v. Principi, 381 F.3d 1163 (elements required for service connection)
- Brammer v. Derwinski, 3 Vet. App. 223 (no service connection without present disability)
- Gabrielson v. Brown, 7 Vet. App. 36 (Board must explain credibility and probative value)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Board obligation to discuss evidence it rejects)
- Prejean v. West, 13 Vet. App. 444 (probative value of medical opinions depends on thoroughness and rationale)
- Obert v. Brown, 5 Vet. App. 30 (medical opinions couched in speculation are not probative)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay testimony competent for symptoms but not medical diagnosis)