Citation Nr: 1314062 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-19 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of traumatic brain injury (TBI). 2. Entitlement to increases in the "staged" ratings assigned for posttraumatic stress disorder (PTSD) (currently 10 percent prior to February 8, 2008 and 30 percent from that date). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 2002 to June 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO) that awarded service connection for PTSD, rated 10 percent, effective July 1, 2006, and denied service connection for residuals of TBI. A March 2010 rating decision increased the rating for PTSD to 30 percent, effective February 8, 2008. The issue regarding the rating for PTSD is characterized to reflect that "staged" ratings have been assigned, and that both stages of the rating have been on appeal. In March 2012 the Veteran submitted additional evidence (his statement) with a waiver of RO initial consideration. FINDINGS OF FACT 1. In March 2013, prior to the promulgation of a Board decision the matter, the Veteran submitted a written statement to the effect that he wished to withdraw his appeal in the matter of the rating for PTSD; there are no questions of fact or law remaining before the Board in this matter. 2. It is reasonably shown that the Veteran has cognitive impairment as a residual of TBI in service. CONCLUSION OF LAW 1. Regarding the matter of the ratings for the Veteran's PTSD, the criteria for withdrawal of a Substantive Appeal are met; the Board has no further jurisdiction in such matter. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Service connection for cognitive impairment residuals of TBI is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Ratings for PTSD The Board has jurisdiction where there is a matter of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a March 2013 written statement, the Veteran expressed his intent to withdraw his appeal seeking an increased rating for PTSD. Hence, there remains no allegation of error of fact or law for the Board to consider regarding that issue. Accordingly, the Board does not have any further jurisdiction consider an appeal in the matter. Service Connection for Residuals of TBI. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to this claim. Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's DD Form 214 shows that he was twice deployed to Iraq; that his military occupational specialty (MOS) while serving there was petroleum supply specialist; and that he received imminent danger pay. In a February 2006 TBI questionnaire completed upon his return from his second deployment, the Veteran reported that while deployed in Iraq he did not sustain any injuries from shell fragments or a blast. He stated that he had not sustained any injuries that resulted in loss of consciousness, concussion, head injury, or being dazed. On a February 2006 Post-Deployment Health Assessment, on DD Form 2796, the Veteran indicated that, during his deployment, he did not engage in direct combat where he discharged his weapon. An Individual Medical Readiness Summary, created that same month, rated the Veteran as deployable without restriction. On a February 2002 TBI Questionnaire the Veteran denied sustaining a TBI while deployed. In February 2006, he also completed a self-report medical assessment, in connection with separation from service), in which he stated that his only injury in service for which he did not seek medical care was a low back injury. On November 2006 VA examination (in connection with an assessment for PTSD) the Veteran reported that his stressors included that: "an RPG exploded close to him," a mortar round "landed twenty meters from where he was but . . . exploded in the other direction and the shrapnel went away from him". In November 2007, the RO found that the Veteran's alleged stressors, several near misses with explosions in near proximity, were verified, and granted him service connection for PTSD. With his February 2008 claim seeking service connection for residuals of TBI, the Veteran included a December 2007 report from a VA psychologist, whose initial assessment was that the Veteran's "test data is consistent with the neurocognitive impairment often associated with frontal lobe insult." In a more extensive report prepared the same day, the psychologist recorded the Veteran's assertions that in 2004, while on his first deployment to Iraq, he sustained "a blow to the left frontal region that left him unconscious for 5 minutes. He also said he was within 30 meters of a mortar blast that left him 'dazed' [and that] he was struck by debris." The Veteran "acknowledged some cognitive problems in the months following . . . but denie[d] receiving treatment for TBI" or any other head injury. The psychologist reported that the Veteran "endorsed a broad range of symptoms on a self-report measure of post-concussive symptomatology" and concluded that the Veteran's "current neuropsychological assessment showed a pattern of residual cognitive impairment consistent with the site of injury, mechanism of injury, and his reported difficulties." The diagnoses included Cognitive Disorder, NOS. On April 2008 VA examination for TBI, the examiner noted that she reviewed the Veteran's claims file. The Veteran reported that, in November 2005 (during his second deployment), "[h]e was sitting in a chair and one of his colleagues dropped a 15 caliber machine gun . . . on his head." He denied any loss of consciousness, but "said he could not move or talk for about . . . a minute." The diagnosis was history of TBI with no residuals. In an addendum, the examiner noted that a CT of the Veteran's head was unremarkable and that X-rays showed "no osseous injury." On April 2008 VA examination for PTSD, the diagnoses were PTSD and residuals of TBI; the examiner and stated that she could not allocate the Veteran's cognitive symptoms between PTSD and TBI without resort to speculation. A September 2009 TBI/polytrauma rehabilitation assessment concluded, based on the results of several tests, including the Neuropsychological Assessment Battery and the Scales for Traumatic Brain Injury, that the "Veteran demonstrated a mild cognitive impairment overall" and would benefit from speech therapy and retraining of memory and cognitive skills. In March 2013, the Veteran submitted a statement to the effect that he engaged in combat during both deployments to Iraq. He stated that, during the first deployment, he was involved in two fire incidents; he described the incidents. Competent medical evidence (noted above) establishes that the Veteran has cognitive impairment consistent with a TBI. His claim has been denied on the basis that he is not shown to have been involved in an incident of the type that would have exposed him to a TBI. However, the Board observes that the Veteran's award of PTSD is based on a stressor event of "several near misses when there were explosions close to you while in Iraq" (see p. 2 of November 2001 rating decision). It is inherently inconsistent to concede that the Veteran was exposed to a blast event for the purposes of one claim and then to find that such event did not take place for purposes of another. While there is some ambiguity in this matter, governing law and regulation provide for resolution of reasonable doubt in the Veteran's favor (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102). Accordingly, the Board finds that it is reasonably established (and recognized by VA) that during his deployment in Iraq the Veteran was involved in an event that had the potential of causing TBI. As the medical evidence cited above indicating that the Veteran has cognitive impairment consistent with TBI satisfies the other requirements for establishing service connection (current disability and nexus to service/event therein) all of the requirements for establishing service connection for cognitive impairment as a residual of TBI are met, and service connection for such disability it warranted. ORDER The appeal in the matter of the ratings for PTSD is dismissed. Service connection for TBI is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs