Citation Nr: 1755061	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-35 612	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for residuals of traumatic brain injury (TBI) to include hearing loss, tinnitus, and headaches.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant, spouse


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1969 to November 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran and his wife testified before the undersigned in a March 2016 hearing.  A hearing transcript is of record.  The Board previously considered and remanded this case in April 2016.

In December 2016, the Agency of Original Jurisdiction issued a statement of the case on the issues of service connection for headaches, tinnitus, and hearing loss as separate and independent disabilities from TBI.  The Veteran did not substantiate his appeal.  Therefore, those issues are not before the Board, except as a component of the TBI claim, and the Board intimates no opinion on the merits of those claims.


FINDINGS OF FACT

The weight of the evidence is against finding TBI incurrence in service.


CONCLUSION OF LAW

The criteria for an award of service connection for TBI have not been met.  38 U.S.C.A. § 1110 (2014); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Procedural duties

VA is required to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The RO sent the Veteran a notice letter in July 2009, prior to adjudication of his claim.  

Next, VA has a duty to assist the Veteran in the development of claims.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All identified, available medical records have been obtained and considered.  
VA provided examinations and medical opinions for the Veteran's claim in February 2010 and December 2016.  The AOJ substantially complied with the Board's remand directives by obtaining the December 2016 medical opinion.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, the Board will proceed to the merits of the claims.

II. Service connection

The Veteran contends that he has current residual symptoms of a TBI in service.

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 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."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).  

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

The Veteran and his wife are competent to report symptoms and experiences observable by their senses; however, they are not competent to diagnose or determine the cause of complex neurological and brain diseases as this requires specialized medical training and testing.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).  

The Board has reviewed the record and finds that the criteria for service connection for TBI have not been met.  See 38 C.F.R. § 3.303.

First, the evidence shows that the Veteran experiences current symptoms he believes are associated with TBI.  During the February 2010 examination, he reported headaches.  At the Board hearing, the Veteran's wife stated that he has trouble keeping instructions and remembering things.  The Veteran also reported experiencing hearing loss and tinnitus since service.

Next, the evidence reveals an incident in service where the Veteran hit his head.  During the Board hearing, the Veteran testified that he was on a tanker in Vietnam that hit a landmine.  He fell off the tank, hit his head, lost consciousness, and had ringing in his ears and headache.  He noted that there is no record of the injury because no medics were available.  The Veteran's DD 214 shows that he served in Vietnam from October 1969 to November 1970.  His military personnel records reflect he was a loader and tank driver.  Service treatment records show complaints of headaches with a history of headaches in June 1969 before the Veteran deployed to Vietnam.  The November 1970 separation examination found normal head, ears, and neurologic system.  There were no complaints of headaches recorded at that time.  Shortly after service, a VA record from June 1971 shows complaints of severe headaches.  A treatment record from September 1971 notes the report of headaches since Vietnam and diagnosis of cluster headaches.

The weight of the evidence is against finding that the incident in service caused a clinically diagnosed TBI.  As noted above, the Veteran reported having headaches, hearing loss, and tinnitus since service.  The Board does not refute his reports but instead finds the evidence shows the cause of reported headaches, hearing loss, and tinnitus not to be due to a TBI.  In this regard, the February 2010 examiner found that the headaches were less likely due to in-service brain trauma.  In so finding, the examiner observed that neuropsychological testing indicated that symptoms were not likely due to brain injury.  

Moreover, the December 2016 examiner considered all relevant evidence, including service records and statements from the Veteran and his wife, and also
concluded that it is less likely than not that the Veteran sustained a TBI while on active duty service.  She explained that there is no corroborative clinical evidence of neurological symptoms that would support the diagnosis of TBI or residuals of TBI occurring during service.  See LCM.  The examiner noted that while the Veteran supplied evidence of his wartime experiences, the diagnosis of TBI is a medical diagnosis and not all exposures to blast or other head injuries cause a TBI.  A record of the symptoms experienced at the time of injury is imperative to making a TBI diagnosis.  In this case, service treatment records are silent for a concussion, TBI, or residuals of TBI.  See December 2016 examination.  The examiner noted that the report of a CT scan dated in November 2006 showed findings suggestive of a benign meningioma and there is no support from medical literature of tumors secondary to TBI.  The examiner found that hearing loss and tinnitus are most likely due to noise exposure not a TBI.  Similarly, the February 2010 examiner found that there was likely a partial linkage between the Veteran's headaches and his posttraumatic stress disorder.    

The Board finds the 2016 examiner's opinion highly probative, as she discussed the relevant evidence and explained why the reported in-service injury was inconsistent with a TBI.  The 2016 and 2010 examiners also offered alternate etiologies for the Veteran's reported hearing loss, tinnitus, and headaches.  The Board has considered the Veteran's statements but finds he is not competent to diagnose TBI.  See Jandreau, 492 F.3d at 1377.  The lay evidence is outweighed by the examiner's opinion.  The preponderance of the evidence is against finding a TBI in service, and service connection is not established.  See 38 C.F.R. §§ 3.102, 3.303.

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ORDER

Service connection for TBI is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs