Citation Nr: 1329064 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 11-03 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of traumatic brain injury (TBI), also claimed as post concussion syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2004 to January 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that in correspondence dated June 2011, the Veteran withdrew his request for a Board hearing. FINDING OF FACT The medical evidence of record establishes that the Veteran's diagnosed TBI post concussion syndrome is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of TBI, also claimed as post concussion syndrome, have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In the present case, the grant of entitlement to service connection for residuals of traumatic brain injury, claimed as post concussion syndrome, constitutes a complete grant of the benefit sought on appeal. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. The Veteran served as an infantryman with combat service in Afghanistan. He contends that he experiences physical and cognitive deficits as residuals of a traumatic brain injury, also claimed as post concussion syndrome, in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish entitlement to service-connected compensation benefits, a 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 - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competency, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Veteran was diagnosed with TBI post concussion syndrome immediately prior to and during the pendency of the appeal period, suffered in-service injuries in the form of a traumatic brain injury, a concussion, and post concussion syndrome, and the preponderance of the evidence establishes that the Veteran's TBI post concussion syndrome is causally related to his injuries sustained in service, the Veteran is entitled to service connection for residuals of TBI on a direct basis. As an initial matter, the evidence of record shows that the Veteran had a disability of TBI post concussion syndrome sufficient to meet the first element required for a service connection claim. The present disability element of a service connection claim means that the disability for which service connection is sought must have existed at some time during the claim and appeal process. See McClain v. Nicholson, 21 Vet. App. 319, 321 (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present when the claim is adjudicated). In addition, the Court of Appeals for Veterans Claims recently held as follows: [W]hen the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Here, the evidence of record demonstrates that the Veteran had post concussion syndrome both immediately prior to his filing of his claim and during the pendency of the appeal. In February 2009, the Veteran underwent a TBI consult at a VA facility in which the examining physiatrist reviewed the Veteran's medical history and rendered a primary diagnosis of post concussion syndrome, noting that it is "a type of milder traumatic brain injury." On April 27, 2009, the Veteran filed the present claim for entitlement to service connection for residuals of TBI, claimed as post concussion syndrome. In a May 2009 follow up appointment, the examiner again diagnosed the Veteran with "TBI post concussion syndrome" as well as headaches, post traumatic amnesia for personal items, and some retrograde amnesia due to post concussion syndrome. At another TBI consult in September 2009, the Veteran again was diagnosed with "TBI post concussion syndrome," and "headaches most likely secondary to [TBI post concussion syndrome]." The Veteran underwent a VA examination for TBI and post concussion syndrome in November 2010. Following the examination, the physician opined that "there is no evidence for traumatic brain injury at this time," and further noted that in her opinion, the Veteran suffered a "grade I concussion at most, and he has fully recovered from that." The Board finds the February 2009, April 2009, and September 2009 diagnoses of TBI post concussion syndrome are of sufficient weight to establish that the Veteran had TBI post concussion syndrome during the appeal period. In this regard, the diagnoses are supported by consideration of the Veteran's medical history and describe the Veteran's symptoms in detail, including memory loss, dizziness, and headaches. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Therefore, as diagnoses of TBI post concussion syndrome of significant probative weight have been rendered immediately prior to and during the pendency of the Veteran's current appeal, the criteria for a current disability of residuals of TBI are met, even though the most recent diagnosis was negative. See McClain, 21 Vet. App. at 321-323; see also Romanowsky, 26 Vet. App. at 294. Next, the evidence of record additionally supports a finding that the Veteran sustained an in-service injury in the form of a head injury to include TBI, a concussion, and post concussion syndrome. Specifically, the Veteran's October 2008 separation examination notes that while deployed to Afghanistan in September 2007, the Veteran suffered and was treated for a head injury after the vehicle he was traveling in was struck by an antitank mine. The examiner further noted that the Veteran experienced dizzy episodes lasting five to ten minutes, and was treated at the TBI clinic in April, May, and July 2008, during which he was diagnosed with post concussion syndrome. The Veteran's service treatment records also include an April 2008 physical profile issued by the TBI Clinic describing the Veteran's medical condition as "Traumatic Brain Injury" and describing temporary limitations on the Veteran's functional activities. In a post deployment health reassessment completed in December 2008, the Veteran was assessed as not showing evidence of risk for TBI based on his responses to the questionnaire. The Veteran responded to the questionnaire indicating that during his deployment, he experienced a blast or explosion, and that immediately after that event he had a concussion, did not remember the event, and felt dazed, confused, or "saw stars." He further indicated that following the explosion, he suffered from headaches, ringing in the ears, sensitivity to bright light, irritability, and problems with memory, balance, and sleep. As the Veteran's service treatment records show that he was diagnosed with TBI and post concussion syndrome in service, the element of the incurrence of an in-service injury is met. See 38 C.F.R. §1154(a) (2013). Having determined that the Veteran had a disability during the pendency of his claim and sustained an injury in service, the final question before the Board is whether the Veteran's diagnosed post concussion syndrome is related to the head injury sustained in service. In the February 2009 report from the TBI clinic examination, the examiner described in detail several injuries the Veteran reported incurring while deployed to Afghanistan in 2007, including suffering a head injury when his vehicle was struck by an antitank improvised explosive device. The examiner further noted that following the injury, the Veteran experienced confusion, a headache. Based on the results of the examination, the examiner opined that the Veteran's "primary diagnosis from this appointment is post concussion syndrome due to his experiences in Afghanistan and that this is a type of milder traumatic brain injury." In a May 2009 follow up appointment, the same examiner again noted that at the February 2009 TBI appointment, the Veteran "screened positive for TBI post concussion syndrome" and "[t]he etiology of the post concussion syndrom[e] was believed to be secondary to several separate incidents, including (a) a double-stacked anti-tank IED explosion, (b) RPG explosion during an ambush, and (c) a fall into a dried-up river bed which also caused right hip dislocation." The Board finds that the February and May 2009 VA medical opinions that there is a causal link between the Veteran's TBI post concussion syndrome and his military service are of significant probative weight, as the examinations describe in detail the Veteran's symptoms of headaches, disorientation, confusion, and memory loss, and directly attribute those symptoms to his injuries sustained while deployed to Afghanistan, as well as to his TBI post concussion syndrome. Thus, the Board finds that the preponderance of the evidence of record is in favor of a grant of entitlement to service connection for residuals of TBI, claimed as post concussion syndrome. ORDER Entitlement to service connection for residuals of TBI, claimed as post concussion syndrome, is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs