Citation Nr: 1752424	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO. 15-12 240	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for residuals of traumatic brain injury (TBI).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

David Katz, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1944 through November 1946 as a heavy machine gunner in the Philippines and Japan, and from November 1948 through June 1952 in Japan and Korea. He was wounded in action in May 1945.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in San Diego, California. The Board remanded the issue in January 2017 for additional notice, further evidentiary development and readjudication. 

In February 2017 VA sent the Veteran additional VCAA-compliant notice, conducted the required examinations and obtained the required medical opinions, and in June 2017 granted service connection for PTSD and provided the Veteran a supplemental statement of the case with respect to residuals of TBI. VA's grant of service connection for PTSD renders that issue moot, and it will not be discussed further herein.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran does not have a current diagnosis of TBI or any residuals of TBI.  


CONCLUSION OF LAW

The criteria for service connection for residuals of TBI have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103(A) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA).

The VCAA establishes a duty on the part of VA to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 CFR §§ 3.102, 3.156(a), 3.159, 3.26(a) (2017). 

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. VA must explain which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, by VA. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). VA must inform the claimant of what information VA considers when rating a claim and establishing an effective date, Dingess v. Nicholson, 19 Vet.App. 473 (2006), and must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. Id. 

Subsequent to remand, VA provided the Veteran a standard VCAA notification letter with attachments, responsive to the above requirements and providing adequate VCAA notice generally and specifically with respect to the Veteran's TBI issue. 

In the case of a claim for disability compensation, VA is required to obtain the claimant's service medical records and other relevant service records, as well as medical records from VA facilities and VA-contracted medical providers. 38 U.S.C. § 5103A(b) (2012); 38 C.F.R. § 3.159(c) (2017). When attempting to obtain records from a Federal department or agency VA's efforts shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.  38 U.S.C. § 5103A(c)(2) (2012); 38 C.F.R. § 3.159(c)(2) (2017). 

Here, the response to a February 2017 inquiry seeking all of the Veteran's service medical and personnel records indicated that the Veteran's records were "fire-related," meaning that they were very likely involved in a 1973 fire at the National Personnel Records Center in St. Louis, Missouri, and that there were "no personnel documents available for this Veteran." The response further stated, "Although, there are alternate records sources that often contain information, which can be used to reconstruct parts of a lost service record, the type of information you request cannot be reconstructed." 

Subsequently VA provided a standard notification letter to the Veteran informing him that his personnel records could not be obtained and inviting him to submit any alternative evidence in his possession that might further document his service, listing examples of evidence that might be helpful. See 38 C.F.R. § 3.159(e) (2017). There is no indication that the Veteran provided any such alternative evidence. 

The Board finds that further efforts to obtain the Veteran's service personnel records would be futile, that VA has satisfied its duty to try to obtain them and to inform the Veteran thereof, and that it has substantially complied with the pertinent remand instruction. See 38 U.S.C. § 5103A(c)(2) (2012).

By contrast, the Veteran's service medical records, dating from his enlistment exam in September 1944 through his discharge exam in June 1952, are in the possession of VA and have been considered here. 

VA must provide a claimant a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on a claim for compensation. 38 U.S.C. § 5103(d)(1) (2012); 38 C.F.R. § 3.159(c)(4) (2017). A thorough medical examination is one that "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (further citations omitted). A medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Id., citing Ardison v. Brown, 6 Vet. App. 405, 407 (2007) (further citation omitted).  
Here, VA provided the Veteran a TBI examination in February 2017 specifically responsive to the VA Disability Benefits Questionnaire for the Initial Evaluation of Residuals of Traumatic Brain Injury (I-TBI). The examination was conducted by a provider on contract with VA. The examiner was a neurologist, and thus competent to administer the examination. The examiner fully completed the questionnaire and provided separate medical opinions with respect to TBI and its residuals. The examiner indicated that he based his opinions on a thorough review of the file, all available medical records, current peer reviewed medical literature and the Veteran's reported history. D'Aries v. Peake, 22 Vet. App. (1997); See Stegall v. West, 11 Vet. App. 268 (1998).

II. Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

The Veteran's service medical records contain no specific reference to TBI. The records show that in January 1950 the Veteran hit his head while passing through a low doorway. There was no loss of consciousness or other symptoms except for "flashes of light." However, the Veteran reported that his headaches had been going on for two years, and as a result he was scheduled for a neurological consult. The consult, with an Army psychiatrist, took place approximately two weeks after the incident. 

The Veteran reported that his headaches did not keep him from duty, and were usually controlled with pain relief tablets. The consulting psychiatrist did not connect the Veteran's ongoing headaches with the blow to his head from the doorframe, nor with another blow mentioned in the interview that occurred at some earlier point while the Veteran was working as a civilian. 

Rather, the psychiatrist diagnosed "probable psychogenic headaches, based on repressed hostility," citing particular incidents of the Veteran's fighting. The Veteran was advised "to attempt to analyze his own emotional feelings," and develop outside interests to manage "repressed emotions." TBI was not mentioned.

Upon his discharge from service, the Veteran's separation examination described his neurological and psychological diagnoses as "normal."

The Veteran's VA medical records date from November 2013 through the present, and over that period the Veteran has sought and received treatment for a variety of medical issues. There is no record that the Veteran ever sought treatment for TBI. A fall in 2014 resulted in a CT scan of the Veteran's head; the scan was unremarkable. The Veteran did not seek treatment for TBI at that time. He has reported that he was grazed in the head with a bullet while in service and that he believes he incurred a TBI at that time.

In February 2017, in response to the Board's remand, the Veteran was afforded a psychological examination for residuals of TBI. The examiner opined that "[t]he Veteran does NOT have a diagnosis of traumatic brain injury that is at least as likely as not (50 percent or greater probability) incurred in or caused by . . . service." With respect to residuals of TBI, the examiner opined that "[t]he Veteran does NOT have residuals of TBI disability that is at least as likely as not (50 percent or greater probability) etiologically related to the Veteran's military service or any incident therein." 

In his rationale, the examiner acknowledged that the Veteran's combat service exposed him to head injuries, but explained that not all head injuries result in a TBI; and that residuals of TBI manifest proximate to the time of injury, with cognitive impairment related to "concussion/mTBI" improving over time. The examiner noted that during the evaluation the Veteran exhibited good recall and there was no other objective evidence of signs or symptoms consistent with residuals of TBI. In addition to the examiner's representation that he reviewed the entire file and the Veteran's reported history, his specific reference to concussion/mTBI-mild TBI-suggests that he reviewed the Veteran's documented history in the early 1950's of striking his head, and the proximate results thereof. The examiner also specifically acknowledged the Veteran's report of having been grazed in the  head by a bullet while in service.

The Board attributes significant probative weight to the February 2017 medical opinions. The Board further notes that a close review of the Veteran's VA medical files reveals no complaint or specific mention of TBI. 

The threshold requirement for service connection for any disability is competent medical evidence of the existence of the claimed disability at some point during the pendency of the claim, including during a Veteran's appeal. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim").

Here, the Veteran does not have a current diagnosis of the disability for which he has applied for benefits, and as a result the Board finds that service connection for residuals of TBI is not warranted.




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ORDER

Entitlement to service connection for residuals of TBI is denied.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs