Citation Nr: 1525080 Decision Date: 06/11/15 Archive Date: 06/19/15 DOCKET NO. 14-03 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of a head injury, claimed as traumatic brain injury (TBI). ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Paul, Minnesota. FINDING OF FACT According to the competent evidence of record, the Veteran has a current diagnosis of TBI, with headaches, resulting from in-service head injuries. CONCLUSION OF LAW Service connection for traumatic brain injury with headaches is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In the present case, service treatment records indicate the Veteran was seen in November 1969 during active duty service following a fight in a club. Reportedly, he was unconscious for approximately ten minutes. On physical evaluation, he had a contusion over his left eye and abrasions on his right arm, but his vital signs were within normal limits. Skull X-rays were negative for fractures. The impression was of a concussion aggravated by alcohol intake. He was held for observation. A line of duty investigation determined the Veteran's injuries were sustained in the line of duty and were not the result of misconduct. In August 1970, the Veteran was treated for a possible concussion during a football game. He reported an "all-over headache" and an ache on the back of his neck. He denied any pain on the rest of his head. On physical evaluation, he was alert and oriented. The impression was headache secondary to trauma, rule out concussion. He was given medication and held overnight for observation. The next day, he continued to have a slight headaches but was without other symptoms. He was discharged to duty. He returned for additional treatment several days later in September 1970, reporting a worsening of his headaches. He also reported dizziness and pressure in his ears on standing. On physical evaluation, he had a normal neurological examination, and the impression was head trauma with a mild concussion. X-rays of his skull were within normal limits. He was given medication. On examination for service separation in March 1971, the Veteran was without any neurological symptomatology or abnormalities of the head, face, or neck. The Veteran's claim for service connection for a TBI was received in July 2012. A VA medical examination was afforded the Veteran in December 2012. The claims file was reviewed in conjunction with the examination. His history of two in-service concussions was noted. The examiner, a VA physician, opined that these were likely mild traumatic brain injuries. Current symptoms as reported by the Veteran included frequent headaches, with less frequent episodes of dizziness with nausea. These episodes occurred approximately every three months, and lasted for several hours. On evaluation of the Veteran, the examiner found no evidence of TBI symptomatology in the following areas: memory, attention, concentration, or executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication, and; consciousness. A 2001 MRI was noted to display mildly dilated ventricles but was otherwise unremarkable. The final diagnosis was of mild TBI, resulting in migraine headaches. The Veteran's claims file was reviewed by a VA physician in January 2013. The Veteran's history of two in-service concussions was noted; the examiner opined that these injuries likely resulted in a TBI. Currently, the Veteran experiences headaches on a nearly daily basis, by his report. Upon review of the claims file, the examiner stated the Veteran had "no confirmed diagnosis of TBI." The examiner further stated the record contained "no neuropsychological testing or evaluation to confirm/deny a diagnosis of TBI." The Board notes that in a December 1999 Decision Review Officer Decision, the Veteran was granted service connection for headaches, effective July 6, 1998. The Veteran has also been granted service connection for posttraumatic stress disorder (PTSD). The same disability or disabilities may not be evaluated under various diagnoses. 38 C.F.R. § 4.14. The evidence does, however, establish that the Veteran sustained multiple head injuries in service, and a VA examiner opined in January 2013 that a TBI was likely the result of these injuries. The Veteran has further stated that his headaches have been chronic since service. Though a layperson, the Veteran is competent to report such observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board acknowledges that a VA examiner opined in January 2013 that a current diagnosis of TBI could not be confirmed, the same examiner also opined that such a diagnosis could not be denied as well. As noted above, a current diagnosis of mild TBI was rendered by a different VA examiner in December 2012. This December 2012 examiner further opined that the Veteran's headaches were a chronic symptom of the Veteran's in-service TBI. In light of the above, the Board finds that service connection for a TBI, with headaches, is warranted. In implementing this award, the RO is cautioned that pursuant to 38 C.F.R. § 4.14, the same disability may not be rated under different diagnoses. ORDER Service connection for a traumatic brain injury with headaches is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs