Citation Nr: 1337497 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-02 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for the residuals of a traumatic brain injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from June 1988 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A review of the Virtual VA and VBMS paperless claims processing systems does not reveal any additional evidence pertinent to the claim on appeal. FINDING OF FACT The competent evidence of record does not show that the Veteran has a traumatic brain injury that was incurred in or aggravated by his period of active military service. CONCLUSION OF LAW The criteria for establishing service connection for the residuals of a traumatic brain injury have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In November 2009 correspondence, the RO advised the Veteran of what the evidence must show to establish entitlement to service connection for his claimed disorder and described the types of evidence that the Veteran should submit in support of his claim. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The letter also provided the Veteran notice regarding the evidence and information necessary to establish a disability rating and effective date in accordance with Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board further notes that the Veteran was provided with a copy of the January 2010 rating decision and the October 2011 statement of the case, which cumulatively included a discussion of the facts of the claim, notification of the basis of the decision, and a summary of the evidence considered to reach the decision. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO obtained the Veteran's VA treatment records and associated the Veteran's service treatment records and personnel records with the claims file. The Veteran was not provided a VA examination in conjunction with his claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, VA must consider four factors: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as will be described in greater detail below, VA has no duty to provide a medical examination because the Veteran has not sent any evidence suggesting he has a current disability or persistent or recurrent symptoms of a current disability or any evidence of an in-service event, injury, or disease. The Veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that he or the VA needs to obtain. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Accordingly, the Board will proceed with appellate review. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also 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). Generally, where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1376-1377. Also, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for the residuals of a traumatic brain injury. The Veteran filed his claim in October 2009, asserting that he suffers from the residuals of a traumatic brain injury resulting from the same fall that injured his shoulder, for which he is already service-connected. More specifically, the Veteran claimed that he fell from one level of his ship to another when his ship was bombed by friendly fire. The Veteran states that he was rendered unconscious from the incident and continues to pass out for no reason. The Board observes that VA has corroborated the friendly fire incident; indeed, it served as one of the stressors for the Veteran's service-connected posttraumatic stress disorder. The Board also notes that the Veteran injured his shoulder in service and, as mentioned previously, is in receipt of service connection for that disability. However, there is no credible evidence that the Veteran sustained any traumatic brain injury or other head injury in service or that he has been diagnosed with a current traumatic brain injury. To be sure, although the Veteran is competent to testify about what he experienced in service, he had never complained of a head injury until he filed his claim. On the contrary, in multiple treatment records and compensation and pension examinations, the Veteran consistently reported that he hurt his shoulder when he fell without ever mentioning a concurrent head injury. Likewise, the Veteran's service treatment records at the time of the fall fail to mention a head injury. In fact, the Veteran's initial treatment record following his fall notes that he was in no acute distress; was alert and oriented to person, place, and time; and complained of pain in the area inferior to the left scapula. The Veteran's head was then found to be clinically normal at his separation examination, at which time the Veteran reported no history of any head injury. In light of the fact that the Veteran's current claim contradicts all his contemporaneous and post-service medical records, the Board finds that his assertions of a traumatic brain injury in service are not credible. Therefore, the Board affords the Veteran's testimony no probative value and finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for a traumatic brain injury. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for the residuals of a traumatic brain injury is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs