Citation Nr: 1334288 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 11-25 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from August 1990 to July 1994 and from June 2004 to January 2005. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Acting Veterans Law Judge in May 2013. His spouse also testified. The hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran has a traumatic brain injury incurred during active service. CONCLUSION OF LAW The criteria for service connection for traumatic brain injury have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends he is entitled to service connection for a traumatic brain injury incurred in service. At a May 2013 Board hearing, he described two incidents that occurred while he was stationed in Iraq during service which he believes resulted in a traumatic brain injury. He said the first occurred between August and October 2004 while on guard duty at the main entrance gate to the compound. He said incoming rocket and mortar fire impacted within 20 yards of the gate, causing him to be thrown back into the sandbags. He stated that he did not remember hitting his head but was dazed and dizzy. He said he felt better later so he did not seek medical treatment. He testified the second incident occurred in September 2004 when he was playing soccer in combat gear with his unit as part of a physical training session. He said he was tackled and flipped into the air, coming down and landing on the right side of his head. He recalled that he believed he blacked out as people had come up and shook him. He said he felt nauseated and had pain in his back and numbness down his legs as well as tingling in his right arm. He said the worst of his pain was in his back, which is what he reported to medical. The Veteran testified that within a few months after the soccer incident he started noticing memory loss. The Veteran testified that he has no other history of head injury either before or after service. The Veteran's spouse testified that when he returned from Iraq the Veteran was often sleepy during the day and would nap frequently. He also had less patience with his children and was very distant when he returned. She said he currently has trouble recalling things, including the names of pets. She testified that in 2008 she finally pushed him to seek medical help for his problems. The Veteran's service treatment records include treatment records for a herniated lumbar disc after colliding with another player while playing soccer in September 2004. They do not include any complaints of or diagnosis of a head injury. On his January 2005 medical board examination prior to his discharge from service no brain injury is noted. Further, on the accompanying medical history form the Veteran denied having had "a head injury, memory loss or amnesia." The Veteran filed his first claim for benefits in January 2005, claiming only back disability and hearing loss; however, in November 2006 he filed a second claim, this time claiming short term memory problems. That claim was denied. Private medical records reflect that the Veteran was first referred by his private doctor's office for a neuropsychology consultation in November 2008 for assessment of memory and attention concerns. The Veteran reported experiencing increasing short term memory and attention difficulties since his deployment to Iraq. He also recounted being hit by the blast wave of a rocket and being knocked to the ground during a soccer game, hitting his head, both while in Iraq. He stated that after the soccer injury he felt woozy and sick to his stomach until the next morning. The doctor noted the Veteran attempted to minimize the significance of his experiences in Iraq. The Veteran also sought treatment at the VA in December 2008, reporting irritability, memory loss, and difficulty sleeping since returning from Iraq. The Veteran underwent private neuropsychological testing and was diagnosed with a traumatic brain injury in January 2009. The doctor noted that the Veteran reported that he had been struggling with the symptoms for years and preferred to deal with it on his own, but sought assessment at the strong urging of his wife. The Veteran had an electroencephalogram (EEG) and magnetic resonance imaging (MRI), and his doctor stated that the testing showed the Veteran "had a significant blow to the head with the predominant area involved being the right temporal and parietal regions." The Veteran began attending speech and language therapy in 2009. In January 2010 his speech-language pathologist wrote a letter with regard to the Veteran's condition. She stated that the Veteran has been diagnosed with moderate generalized intellectual impairment and severe dysprosody and agrammatism post traumatic brain injury and post traumatic stress disorder. She opined that the Veteran's condition is directly related to the "significant blow to the head he sustained while serving his country while on active duty... and subsequent post traumatic stress disorder." Considering all of the evidence and giving the Veteran the benefit of the doubt, the Board finds that he is entitled to service connection for TBI. His private treatment records clearly show a current diagnosis of TBI. Further, the Board finds the Veteran's testimony regarding being hit by the rocket blast wave and hitting his head during a soccer game to be competent and credible. The Veteran has been consistent in describing the incidents both in statements made in connection with his claim and in seeking medical treatment. Further, the Veteran's service treatment records reflect he was injured during a soccer game in September 2004, although the record does not include any report of a head injury. However, the Board finds the Veteran's explanation credible that he thought his symptoms such as nausea were related to his back injury. Further, his report of being knocked back by a rocket is consistent with his service in a war zone. Although the Veteran did not seek medical treatment for TBI symptoms until four years after he left service, he did file a claim for compensation for short term memory loss less than a year later, supporting his contention that although he was experiencing problems, he dealt with it on his own until his wife urged him to get treatment in 2008. The testimony of the Veteran's wife also supports the Veteran's own report of his onset of symptoms immediately after returning from Iraq. Finally, the Board also finds the Veteran's testimony that he has suffered no other head injury before or after service to be credible. The Veteran's private medical providers relied on the Veteran's description of his history of head injury in service in diagnosing TBI. As the Board has found his description to be credible, the diagnosis of his private doctors is based on an accurate understanding of the Veteran's history. Further, the medical evidence supports that the Veteran suffered a blow to the right side of the head, supporting the TBI diagnosis based on the Veteran's in-service injury as he has testified that he has suffered no other head injury outside of service. Finally, his treating speech-language pathologist has expressly opined that the Veteran's TBI symptoms are due to injury suffered in service. Thus, based on the private medical opinion and other medical evidence in this case and giving significant probative weight to the Veteran's testimony of injuries incurred in service and an onset and endurance of TBI symptoms since that time, the Board finds he is entitled to service connection for TBI. ORDER Service connection for traumatic brain injury is granted. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs