Citation Nr: 1800104	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  14-10 453	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

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


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Tang, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1999 to August 2003.  He was awarded the Combat Action Ribbon for his service.

This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  Current jurisdiction lies with the RO in Los Angeles, California.

The Veteran failed to report for a requested videoconference hearing in June 2017.  He has not provided an explanation for his failure to report and has not since requested to reschedule the hearing.  His hearing request, therefore, is deemed withdrawn.  See 38 C.F.R. §§ 20.702(d), 20.704(d) (2017).


FINDING OF FACT

The competent evidence of record reflects that the Veteran does not have a current diagnosis of a traumatic brain injury.


CONCLUSION OF LAW

The criteria for service connection for a traumatic brain injury have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks service connection for residuals of a traumatic brain injury (TBI) he believed to have suffered in service.  


Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Analysis

The Veteran contends that he has a TBI that was caused by concussion waves from a landmine exploding near him in April 2003.  For the reasons stated below, the Board finds that service connection is not warranted.

Military personnel records confirm that a landmine exploded in April 2003, thereby satisfying the element of an in-service event.  However, service treatment records do not show the Veteran was diagnosed with a TBI from that incident or that he received treatment related to the incident.  Service treatment records also show that the Veteran was hit by a "brick" during a December 2002 training exercise.  He complained of left eye pain, and swelling was noted upon examination, but there was no loss of consciousness, bleeding, blurry vision, or headaches noted.  A TBI was not diagnosed.  The remainder of the service treatment records does not show a diagnosis of TBI including during a June 2003 separation physical.

Despite the in-service events, the Veteran does not have a current TBI diagnosis.  Post-service treatment records show TBI screenings in May 2007 and March 2011 were negative.  

A September 2012 VA TBI examination report shows that an examiner determined that the Veteran did not sustain a TBI in service and that he was not currently suffering from such a disability.  The examiner's findings are competent as they were based on a review of the claims folder, an in-person interview, and a neurological examination that included assessment of the TBI-related cognitive impairment and subjective symptoms.   

An August 2013 TBI clinic note indicated that the Veteran reported mild concussions without persisting symptoms, but the clinician determined his symptoms were consistent with tension-type headaches with strong contribution from his temporomandibular joint (TMJ) dysfunction.  See 2013 CAPRI records in the Legacy Folder.  

There is no competent evidence in the Veteran's claims folder that reflects a diagnosis of a TBI at any time since the claim for service connection was filed.  Absent the current existence of a claimed condition there may be no service connection.  Degmetich v. Brown, 104 F.3d 1328 (1997).  The requirement of a current disability 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 if no disability is present when the claim is adjudicated.  See McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289(2013) (a recent diagnosis of a disability prior to the claim may also constitute current disability).

In certain circumstances, a layperson is competent to identify a simple medical condition.  However, a diagnosis of a TBI disability requires specialized medical knowledge or training that the Veteran is not shown to possess.  A TBI diagnosis is a complex medical question, unlike testimony as to varicose veins or flat feet, which are capable of direct observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  As a TBI is not a simple medical condition, the Veteran is not competent to provide such a diagnosis to satisfy the service connection framework in this regard, namely a current disability.  

The Board has considered the Veteran's statement that his headaches are a residual of his claimed TBI.  However, the evidence reflects his headaches are related to TMJ.  The Veteran is already service-connected for migraines, including migraine-variant headaches and tension headaches, as associated with TMJ.  To rate the same symptomatology separately under two various diagnoses would be impermissible pyramiding.  See 38 C.F.R. § 4.14 (2017).

As the record presents no competent evidence to establish a present TBI disability during the appeal, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  Service connection for a TBI is not warranted.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Service connection for a TBI is denied.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs