Citation Nr: 1323115 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-18 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the residuals of a traumatic brain injury. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and E.R. ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to July 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2012, the Veteran appeared at a hearing before an Acting Veterans Law Judge. A transcript of the hearing is in the Veteran's file. As this Acting Veterans Law Judge is no longer employed by the Board, the Veteran was advised of her right to participate in a new Board hearing and have the Veterans Law Judge who conducted the new hearing render a decision on her appeal. In February 2013, the Veteran declined a new hearing. In April 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board requested a medical expert opinion from the Veterans Health Administration. The medical opinion was rendered in July 2013 and, as it provides a basis for granting the claim, the Board is proceeding with the adjudication of the appeal. FINDING OF FACT The Veteran sustained a traumatic brain injury during service and has been diagnosed with a current, related residual disability. CONCLUSION OF LAW The criteria for service connection for the residuals of a traumatic brain injury have been met. 38 U.S.C.A. §§ 1101, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). VA's Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection The Veteran contends that she sustained a traumatic brain injury as the result of an in-service motor vehicle accident, during which her face and the back of her head hit the interior of the truck cab. She contends that she now has chronic headaches, neck pain, fatigue, malaise, incoordination, weakness in the lower extremities, cognitive problems, moodiness, anxiety, aphasia, visual disturbances, and a hearing impairment as a result of that injury. Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran underwent a traumatic brain injury examination for VA purposes (QTC examination) in May 2009, during which her current reported symptoms were characterized as the residuals of an in-service traumatic brain injury. Thus, the Veteran has been diagnosed with her claimed disability during the course of this appeal, and her current disability has been medically linked to an in-service injury. The remaining inquiry is whether the evidence reflects that the Veteran actually sustained a traumatic brain injury during service. The Veteran's service treatment records reveal that she was involved in a motor vehicle accident on April 22, 1982, and that she received emergent care at a private facility in Germany. On April 23, 1982, the Veteran reported experiencing a painful neck and a headache for the past day. She stated that while she did not lose consciousness during the motor vehicle accident, she did have a visual disturbance, which she described as seeing "spots." On physical examination, the presence of a lump on her head of one and a half inches in diameter was noted. The Veteran was diagnosed with a mild concussion and a cervical strain, also referred to as a whiplash injury, and prescribed a cervical collar and medications. The QTC examiner who conducted the Veteran's May 2009 traumatic brain injury examination opined that the Veteran had sustained a traumatic brain injury during service. The examiner appears to have based this opinion on the Veteran's report of her in-service motor vehicle accident, her reported subsequent and current symptomatology, and objective clinical findings. However, the examiner did not review the Veteran's service treatment records before rendering this opinion and thus did not predicate this opinion on clinical evidence from service. As this medical opinion was based solely on the Veteran's reports of her in-service motor vehicle accident injury, the RO obtained another medical opinion. In September 2009, a VA physician reviewed the Veteran's claims file and opined that the QTC examiner's diagnosis of a traumatic brain injury was erroneous, as the service treatment records failed to reflect that the Veteran had sustained a loss or alteration of consciousness or other symptoms suggestive of a traumatic brain injury. However, it does not appear that the VA physician considered the Veteran's diagnosed concussion or reported headache and visual disturbance of seeing "spots" at the time of the injury. The Board directed VA to provide an expert medical opinion, which was rendered by a VA neurologist in July 2013. After reviewing the Veteran's claim file, with specific attention to her service treatment records, the VA neurologist concluded that it is at least as likely as not that the Veteran sustained a traumatic brain injury during service as the diagnosed concussion, reported visual disturbance, and observed lump on her head after her motor vehicle accident were consistent with a traumatic brain injury. As this medical opinion is unequivocal, predicated on an accurate medical history, and supported by a detailed rationale (namely the in-service clinical findings indicating a traumatic brain injury), it is accorded great probative weight. It is sufficient to establish the incurrence of an in-service injury, namely a traumatic brain injury. Service connection for the residuals of a traumatic brain injury is warranted. ORDER Service connection for the residuals of a traumatic brain injury is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs