Citation Nr: 1324909 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 11-01 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for residuals of a Traumatic Brain Injury (TBI). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Brian E. Flannery, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1997 to November 2006. This matter come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for residuals of TBI. The Board acknowledges that the above rating decision also denied service connection for posttraumatic stress disorder (PTSD). However, during the pendency of the appeal, the RO granted the Veteran's claim for service connection for PTSD and assigned an initial 30 percent rating for that disability, effective July 29, 2009. Significantly, the Veteran has not expressed disagreement with the August 2012 rating action. Accordingly, the Board considers the Veteran's PTSD claim to be fully resolved and, thus, outside the scope of its appellate jurisdiction. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of the claim concerning 'downstream' issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2012). Therefore the claim of PTSD is no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim). The Board further found and considered records contained in the Virtual VA systema and are now considered part of the record for this case. FINDINGS OF FACT 1. Chronic TBI residuals were not objectively shown during active service or at any time thereafter. 2. The Veteran's currently diagnosed headaches are unrelated to his reported in-service TBI or any other aspect of his active service. CONCLUSION OF LAW Entitlement to service connection for residuals of TBI is not warranted. 38 U.S.C.A. §§ 1110, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.326 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties under Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify VA satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, a letter was sent to the Veteran in August 2009 and again in October 2009 prior to the initial adjudication of his claim. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and VA treatment records with the claims file. Significantly, the Veteran has not identified any pertinent treatment records aside from those that are already of record. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty obtain a medical opinion when required. The duty to assist also includes providing an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). In March 2011, VA provided the Veteran a medical examination and obtained a medical opinion addressing specifically whether the Veteran suffers from a traumatic brain injury and if so was it caused by active service. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's claimed TBI, she provided a sufficiently detailed description of the disability, and she provided an analysis to support her opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Moreover, while mindful that the Veteran has not been afforded a Board hearing in support of his claim, the Board observes that he has expressly waived his right to such a proceeding. See VA Form 9, January 19, 2011. Accordingly, the Board is satisfied that the Veteran's due process rights have not been compromised. Having thus established that VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the adjudication of his claims. II. Merits of the Claim The Veteran claims he suffered a TBI while in service in Iraq and claims disability of residuals to the TBI. As discussed in further detail below, the record fails to show that there is any existence of a current disability in the form of a TBI or residuals. Moreover, while the record does establish that the Veteran has a diagnosis of headaches, for which he is not service connected, there is no evidence that relates that current disability to his active 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; 38 C.F.R. § 3.303(a). 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the outset of its discussion, the Board recognizes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so too is the disability due to the combat injury in service. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Board is required to apply the sections 1154(b) and 3.304(d) presumption to whether the claimed injury occurred as well as the separate issue of whether the Veteran suffered the claimed ensuing disability while on active duty. For example, a Veteran would then only have to show that the disability he incurred in service was a chronic condition that persisted in the years following active duty. This would basically establish that the injury in service resulted in permanent disability. See generally Reeves. In this case, the Veteran's service separation form (Form DD 214) reveals that he served as a 63B (light wheeled vehicle mechanic) and had wartime service in Iraq, for which he earned imminent danger pay and was awarded the Global War on Terrorism Expeditionary and Service Medals. While deployed to Iraq from September 2004 to October 2005, the Veteran indicates that he came under mortar fire on a number of occasions. He specifically relates an incident where a mortar detonated approximately 60 yards from where he was located. The Veteran indicated that he felt the ground bounce and felt the shock wave on the back of his head. The Veteran denied any loss of consciousness or treatment for a TBI in relation to this or any other incident in service. Upon leaving the Iraqi theater in September 2005 the Veteran indicated he was in excellent health and denied any medical issues. The Veteran's separation examination from October 2006 also showed no issue related to a TBI or head injury. Notwithstanding the lack of corroborating evidence in the Veteran's service treatment records, VA has essentially conceded that the alleged mortar attack took place. Indeed, that was particular in-service stressor upon which service connection for PTSD was recently established. Accordingly, the Board finds that the element of in-service incurrence has been met in this case and will now consider whether the remaining service connection requirements (current disability and nexus) have been satisfied. Shedden, 381 F.3d at 1167. With respect to the threshold Shedden element, the Veteran has indicated symptoms of loss of memory, headaches, mood swings, erratic sleep and depressed mood. Nevertheless, the clinical documentation of record does not reflect that he has ever been diagnosed with a TBI or any chronic residuals of a TBI. The service treatment records and post-service medical records do not indicate the Veteran has been diagnosed with chronic TBI residuals or another organic brain disorder at any time. Moreover, a March 2011 VA neurological examination conducted in support of the Veteran's claim has expressly indicated that the Veteran does not meet the diagnostic criteria for TBI. Conversely, however, the report of that examination does show that the Veteran has a current diagnosis of headaches. With respect to the remaining Shedden element, the aforementioned VA neurological examination has yielded a nexus opinion that is unfavorable to the Veteran's claim. Specifically, the March 2011 VA examiner has opined that "it is less likely than not that [the Veteran's] current headaches are due to the reported exposure to mortar attack pressure," and more likely that this condition is due to a combination of non-military factors, discussed below. A medical opinion is adequate when it is based on consideration of the veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's " 'evaluation of the claimed disability will be a fully informed one.' " Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)). Any opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions" and must "provide sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); see Hicks v. Brown, 8 Vet.App. 417, 421 (1995) (inadequate evaluation frustrates judicial review). Here, the Board finds that the March 2011 VA examination report is adequate for rating purposes as it was based on a complete neurological examination and expressly conducted to determine whether there are any residuals of a TBI. This examination considered all relevant issues including the circumstances of the claimed incident, past and current medical treatment, current environmental factors, current symptoms, physical examination, and interview. The examiner considered the Veteran's headaches and determined they were a result of environmental factors to include insufficient and irregular sleep due to work schedule, irregular diet from skipped meals (sometimes not eating all day), excessive caffeine and nicotine intake, and possibly overuse of Tylenol. Accordingly, the Board finds that this examination is sufficient for a fully informed determination and that the VA examiner is competent and her opinion is afforded high probative weight. See Stefl, 21 Vet. App. at 123 (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the threshold inquiry in evaluating the probative value of a medical opinion is whether the examiner has sufficient facts and data upon which to base an opinion). Having thus concluded that the above VA examination report is of great evidentiary value, the Board finds that this report, and the other pertinent evidence of record, is sufficient to show that the Veteran does not have any current residuals of TBI and that his currently diagnosed headaches are unrelated to his alleged in-service mortar attack or to any other aspect of his active service. In reaching these conclusions, the Board remains sympathetic to this decorated Veteran and does not question the sincerity of his belief that his condition warrants a diagnosis of TBI and is directly service-related. While a lay person, he is deemed competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the underlying diagnoses and etiologies of his current symptoms fall outside the realm of the common knowledge. But see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting that lay persons are not competent to diagnose cancer). As such, whether the Veteran, in fact, meets the diagnostic criteria for TBI and whether that condition, or any other mental or neurological disorder, is related to his military service are questions that require medical expertise to resolve. Therefore the most probative evidence as to a current condition of TBI, and its claimed residuals, is the March 2011 VA examination. In light of the foregoing, the Board concludes that the preponderance of the evidence shows that the Veteran does not have a current disability related to a TBI. As such, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application and that service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for residuals of TBI is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs