Citation Nr: 1758081	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  11-09 027	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

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

REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. Fitzgerald, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1985 to August 2005. 

This matter is before the Board of Veteran's Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

As part of the May 2015 remand, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and entitlement to service connection for hypertension. However, during the course of the appeal the RO granted service connection for hypertension and service connection for an acquired psychiatric disorder in a January 2016 rating decision. The Veteran was informed that this action constitutes a full grant of benefits sought on appeal. 

The Board remanded the issue on appeal for additional development most recently in May 2015. The requested development having been provided, the Veteran provided a July 2015 VA examination, the directives have been substantially complied with and the matter again is before the Board.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2015. A transcript of the hearing is associated with the claim file.

The Board previously issued a January 2017 decision denying entitlement to service connection for residuals of a TBI. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2017, the Court, pursuant to a Joint Motion for Remand filed on behalf of the parties, vacated the January 2017 decision and instructed the Board to address whether the issue of entitlement to service connection for headaches had been raised by the record.  

The issue of entitlement to service connection for headaches (other than as a residual of TBI) has been raised by the record in a December 2006 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017).


FINDINGS OF FACT

The Veteran does not have residuals of TBI.


CONCLUSION OF LAW

Residuals of a TBI was not incurred in, or aggravated by, service. 38 U.S.C. §§ 1110, 1131, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In March 2008 prior to the March 2009 rating decision, the RO notified the Veteran of the evidence needed to substantiate the claim for service connection for residuals of TBI. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

During the hearing, the VLJ clarified the issue, held the record open for 60 days, determined that there were potential outstanding records, and explained a service connection claim. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims.  The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103.

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service treatment records (STRs) with the claims file. In addition, the RO associated the Veteran's VA treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in January 2009 and July 2015. The January 2009 examination report was inadequate as the examiner failed to consider the Veteran's ongoing symptoms post-service. The examination in July 2015 was adequate because the examiner considered and addressed the Veteran's contentions, and conducted thorough medical examinations of the Veteran. Based on the foregoing, the Board finds the July 2015 examination report and opinion to be thorough, complete, and sufficient basis upon which to reach a decision on the Veteran's service connection claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Service Connection

The Veteran contends that he has a TBI as a result of his service. While serving in Afghanistan in 2004 he fell while taking cover in a bunker. He reported slipping and hitting his head on concrete and experiencing vertigo, disorientation, spinning, and leg weakness after the incident. Further, the Veteran has reported he was involved in several motor vehicle accidents in-service in 1986, 1990, and in 1993, that caused several occasions of loss of consciousness. The Veteran reports he developed residuals of TBI as a result of these in-service events. 

Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection for organic disease of the nervous system may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 

 To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id.

The Board notes that the provisions of 38 U.S.C. § 1154(b) do not apply in this case, as the Veteran is not asserting that his claimed residuals of TBI resulted from him engaging in combat with the enemy. 

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

The Veteran has stated that his current symptoms are a result of trauma in service. The Veteran reported that he experiences symptoms including anxiety, memory problems, irritability, sleep disturbances, dizziness and headaches. While the Veteran is competent to report his symptoms, he is not competent to state that he experienced a TBI, and residuals of such, as this determination requires specialized medical knowledge and training. Jandreau, 492 F.3d at 1377.  Here, there are no Jandreau type exceptions.  As there is no competent lay evidence of record, the issue of a current disability must be decided based on the medical evidence of record.

As a preliminary matter, the Veteran is currently service-connected for adjustment disorder with mixed anxiety and depressed mood at a 50 percent rating, effective February 11, 2008. This disability is rated under Diagnostic Code 9499-9440, chronic adjustment disorder, which contemplates all manner of psychiatric symptomatology under the General Rating Formula for Mental Disorders. 

In this case, although the Veteran sustained a head injury in service, the evidence does not show that this caused residuals of TBI. Importantly, the Veteran does not have a current TBI disability. As with all claims for service connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Turning to the medical evidence, service treatment records have been associated with the claims file. An x-ray of the head and chin was performed in December 1993 after the Veteran fell and hit his head and jaw, and no fracture was identified. See January 10, 1994 STR. In January 1994 a CT was performed after a motor vehicle accident, which noted no head trauma but indicated the Veteran did pass out after the motor vehicle accident. A CT scan noted no abnormalities. See January 5, 1994 STR. In this case, although the Veteran sustained a head injury in service, the evidence does not show that this caused residuals of TBI. 

While the Veteran's VA treatment records note treatment in the TBI clinic no treatment records indicate a TBI or residuals of such. The comprehensive evaluations for both treatment and compensation purposes, including neuropsychological testing, are inconsistent with a diagnosis of TBI. The Board notes that during service the Veteran briefly lost consciousness after a motor vehicle accident, and fell and hit his head in Afghanistan in 2004. However, there is no competent evidence that there are residuals of a TBI. 

The Veteran was afforded a VA examination in January 2009. The examiner noted the Veteran's reports of the incidents in service. See January 2009 VA examination. The examiner noted no history of balance/coordination problems or weakness. The examiner found there was no evidence of TBI, and noted that minimal if any brain injury was sustained. 

Next, the Veteran was afforded a VA examination in July 2015. The examiner noted the Veteran does not have nor had a TBI or any residuals of TBI. See July 2015 VA examination. The examiner noted the Veteran's reported symptoms including headaches, blurred vision, irritability, dizziness, memory loss, tinnitus and hearing loss, trouble sleeping and anxiety.  The examiner noted no subjective symptoms of any mental, physical or neurological conditions or residuals attributable to TBI. The Veteran's February 2011 CT scan was reviewed which noted an acute intracranial hemorrhage or mass effect, and no cerebral atrophy. The examiner found it was less likely than not that the Veteran's claimed TBI and residuals of such had clinical onset during service or is otherwise related to an event or incident in service. The examiner noted the Veteran's reports of head trauma but found that objective evidence of TBI or TBI residuals was not found in currently available STRs or seen during evaluation. 

As this opinion is clearly based on a thorough review of the record and was well supported by a well-reasoned rationale and examination of the Veteran, the Board finds that this opinion is entitled to significant probative weight as to the issue of a currently disability. Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312. 

VA treatment records have been associated with the claims file and at no point reflect a current disability of TBI or residuals of TBI. Treatment records in December 2006 note the Veteran reported trouble sleeping, headaches and dizziness which began after returning from deployment in Afghanistan. See December 8, 2006 primary care note. A TBI screening in October 2007 noted the Veteran's in-service events and continued reported symptoms of memory problems, headaches, irritability, sleep trouble and dizziness and a referral to TBI clinic was ordered. See October 27, 2007 nursing outpatient note. A VA administrative note reported the Veteran was being seen as an outpatient and is a TBI clinic patient. See November 15, 2007 administrative note. However, a November 2007 blast injury consult noted that while the Veteran had a history of a blast injury he did not have a TBI. See November 15, 2007 physical medicine rehab consult. 

The Veteran's VA treatment records are absent for treatment of a TBI or TBI residuals. 

The Board notes the Veteran's reports regarding his symptoms and in service injuries and manifestations which he is competent to report. However, the Board finds the preponderance of the evidence is against the Veteran's claim for residuals of TBI. The Board notes that the medical evidence is more probative and more credible than the lay opinions of record. Particularly, the July 2015 VA examiner noted the Veteran's reported symptoms but found no subjective symptoms of any mental, physical or neurological conditions or residuals attributable to TBI or any residuals of TBI. VA treatment records reported no impairments consistent with TBI. While treatment records note the Veteran was being seen in the TBI clinic, there is no indication that the Veteran had a TBI in service or any current residuals.  Thus, the more probative evidence of record indicates the Veteran does not have TBI or any current residuals of TBI. 

As such, the Board finds that service connection for residuals of TBI is not warranted. 

Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.


ORDER

Service connection for TBI is denied.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs