Citation Nr: 1210456 Decision Date: 03/21/12 Archive Date: 03/30/12 DOCKET NO. 09-43 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran (Appellant or Claimant) ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2002 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for TBI. In June 2011, the Veteran testified before the undersigned Veterans Law Judge, while seated at the RO (Travel Board hearing). A transcript has been procured and is of record. FINDINGS OF FACT 1. The Veteran sustained a head injury due to an accidental, non-combat motor vehicle accident while on active duty in April 2003. 2. The Veteran has been diagnosed as having TBI. 3. The Veteran's currently diagnosed TBI is related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for TBI are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In this decision, the Board will grant service connection for TBI; therefore, a review of VA's duties to notify and assist is not necessary. Service Connection Laws and Regulations Service connection may be granted if it is shown a veteran suffers from a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.306 (2011). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, generally, there must be (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the veteran. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Service Connection for TBI The Veteran is seeking service connection for TBI that she contends she sustained while on active duty. She indicates that she was injured in a non-combat, in-service vehicle accident in April 2003. After a review of the evidence, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran sustained a head injury while on active duty. The service treatment records indicate that the Veteran experienced an April 2003 vehicle accident during which her vehicle was rear-ended by another vehicle, causing injuries to the Veteran's cervical spine. The Veteran currently is service-connected for headaches and a cervical spine disability resulting from that accident. The Veteran's treatment for headaches and a cervical disability following the accident is well documented in the service treatment records. At the June 2011 Board hearing, the Veteran credibly testified that, during the in-service April 2003 vehicle accident, she sustained a whiplash-related injury to the skull due to an ill-fitting helmet. The Veteran stated that the helmet, which was too large for her head, knocked against her skull several times, causing a head injury. The Veteran stated that she has been diagnosed with TBI, but had not experienced any traumatic injuries to the head since the April 2003 in-service vehicle accident. As will be noted below, the treatment records indicate several diagnoses of TBI, but contain no notation indicating a traumatic head injury other than the April 2003 incident. Considering the nature of the April 2003 vehicle crash that was sufficient to cause injuries to the cervical spine, and the Veteran's plausible account of a head injury sustained therein, the Board finds the Veteran's account of an in-service head injury to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). While the Veteran did engage in combat with the enemy on other occasions, she does not contend, and the evidence does not show, that the April 2003 vehicle accident was in any way related to combat, or that she sustained any head traumas in combat; therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (2011) do not apply in this case. The evidence tending to weigh against the Veteran's claim is the absence in the service treatment records of complaints, treatment, or diagnosis for a head injury at the time of the April 2003 vehicle accident, and the absence of complaints or treatment for a head injury until 2006, when the Veteran reported experiencing an increase in migraine headaches she believed to be related to TBI. As the evidence is in relative equipoise on the question of in-service head injury, the Board will resolve reasonable doubt in the Veteran's favor to find that the Veteran sustained a head injury during a non-combat-related motor vehicle accident while on active duty in April 2003. After a review of the evidence, the Board finds that the competent evidence is in relative equipoise on the question of whether the Veteran has a current diagnosis of TBI. The Board notes that the Veteran underwent VA TBI screenings in both October 2006 and April 2008. In the October 2006 VA TBI screening, the VA examiner opined that the Veteran was experiencing noted cognitive difficulties. After a review of the Veteran's history and screening test scores, the VA examiner stated that the Veteran's cognitive difficulties were due to a psychiatric disorder, rather than TBI. The VA examiner stated that, if the Veteran's cognitive difficulties were organically based, the VA examiner should have found significant findings on medical and neurological tests that correlated with severe neuropsychological impairment. In the April 2008 VA TBI screening report, the VA examiner conducted an interview with the Veteran to determine whether the Veteran had TBI. In the report, the VA examiner noted that the Veteran denied striking her head against any object or losing consciousness during the April 2003 in-service motor vehicle accident. After the interview, a physical examination, and a review of the claims file, the VA examiner stated that there was no clinical or historical evidence to suggest TBI. The VA examiner further stated that most of the Veteran's symptomatology that might be associated with TBI was actually related to her service-connected PTSD. Reviewing the evidence in the Veteran's favor, the Board notes that the record contains numerous reports diagnosing the Veteran as having TBI. In a June 2008 VA treatment record, the Veteran reported experiencing migraine headaches since the April 2003 in-service vehicle accident. After a physical examination, the VA examiner diagnosed, in part, PTSD, post-concussive syndrome, and migraine headaches. In an additional June 2008 VA treatment record, a VA examiner, specifically a psychiatrist, diagnosed TBI with cognitive problems and mood lability. In a December 2008 service treatment record, the same VA examiner diagnosed TBI with cognitive problems, mood lability, and headaches. In a November 2008 VA medical examination report, provided to determine the nature and etiology of the Veteran's TBI, the Veteran reported experiencing headaches since the April 2003 in-service motor vehicle accident. The Veteran indicated that she currently experienced constant headaches, associated with scalp tenderness, nausea, photophobia, and phonophobia. After an interview with the Veteran, a review of the claims file, and a physical examination, the VA examiner diagnosed TBI. Although the VA examiner diagnosed TBI based, in part, on the Veteran's account of an in-service vehicle accident, the VA examiner did not offer an explicit opinion as to the etiology of the TBI. As the evidence is in relative equipoise, the Board will resolve reasonable doubt in the Veteran's favor to find that the Veteran currently has a TBI diagnosis. The Board further finds that the evidence is in relative equipoise on the question of whether the Veteran's TBI is related to the April 2003 motor vehicle accident. As noted above, the Board finds that the Veteran sustained a head injury due to an accidental, non-combat-related vehicle accident while on active duty in April 2003. The record contains no treatment records indicating any subsequent head injury and the Veteran has stated that she did not experience any subsequent head injury. In the November 2008 VA medical examination report, the VA examiner noted the Veteran's history of in-service head trauma and reports of chronic headaches. After an interview, a physical examination, and a review of the claims file, the VA examiner diagnosed TBI. In the conclusions, the VA examiner stated that the Veteran's reported chronic headaches, separate from service-connected cephalgia, were not related to events that occurred during service. The VA examiner relied on the fact that the Veteran's service treatment records contained no report of chronic headaches secondary to TBI or concussions. The VA examiner also noted that notations in the service treatment records indicated cervalgia with headaches. In a January 2009 rating decision, the RO denied the Veteran's claim for service connection for TBI. In support of the denial, the RO reported that the November 2008 VA examination report stated that the Veteran's diagnosed TBI was not related to the April 2003 motor vehicle accident because the service treatment records did not note a history of concussion. The Board notes that the November 2009 VA examiner did not offer an opinion as to the etiology of the Veteran's TBI. In actuality, the November 2009 VA examiner stated that the Veteran's chronic headaches were not related to in-service TBI. Moreover, although the November 2009 VA medical examiner did not offer an opinion regarding TBI etiology, the VA examiner heard the Veteran's account of in-service occurrence of TBI and diagnosed the disorder based, in part, on her report. As neither the Veteran nor the VA examiner offered an alternative explanation for the diagnosed TBI, the Board finds the opinion sufficiently indicates that the Veteran's TBI was as likely as not related to the in-service motor vehicle accident in April 2003. As stated above, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran sustained a head injury during service. The Veteran currently has diagnosed TBI, and the record contains no evidence of any other head injury. The January 2009 VA medical examination report indicates that the Veteran's TBI disorder is as likely as not related to service. Resolving all doubt in the Veteran's favor, the Board finds that the criteria for service connection for TBI are met. See 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102. ORDER Service connection for TBI is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs