Citation Nr: 1800604	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-23 221	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Missouri Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. R. Woodarek, Associate Counsel


INTRODUCTION

The Veteran had active service with the Marines Corps from August 1981 to September 1985, November 1990 to April 1991, February 2003 to May 2003, February 2005 to November 2005, and April 2006 to April 2009, with additional service in the Marine Corps Reserves.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO), which denied entitlement to service connection for residuals from a TBI.

The Veteran testified before the undersigned Veterans Law Judge in a September 2017 videoconference hearing.  A copy of the hearing transcript has been associated with the record.


FINDING OF FACT

The Veteran does not have current residuals of a TBI due to any incident of active service.


CONCLUSION OF LAW

The criteria for service connection for residuals from a TBI have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).






REASONS AND BASES FOR FINDING AND CONCLUSION

VA Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.326(a) (2017).  Here, the RO issued preadjudicatory notice to the Veteran in September 2011 which met the VCAA notice requirements with respect to entitlement to service connection for residuals from a TBI.  Id.  

VA has also made reasonable efforts to obtain relevant records and evidence needed to substantiate the claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017).  The information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, hearing testimony and a VA examination.  A VA examination was provided in June 2012 to address the Veteran's claim on appeal.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations to address the Veteran's claimed disabilities have been met.  38 C.F.R. § 3.159(c)(4) (2017).  

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017).




Service Connection Law and Analysis

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. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  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) (2017).  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).  The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability.  In absence of proof a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107.  A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim.  See 38 C.F.R. § 3.102 (2017).  When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails.  See Gilbert, 1 Vet. App. 49.  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence does not establish a currently diagnosed disability related to a TBI in service for which service connection may be granted.  

Service treatment records from May 1984 show the Veteran was treated for gastroenteritis after he lost consciousness while sitting in a meeting.  In March 2008, the Veteran sought treatment for a concussion and a laceration to the forehead after falling in his sleep onto a nightstand.  The Veteran's roommate indicated the Veteran was unresponsive for several seconds.

VA treatment records show the Veteran had a TBI screening in August 2010 in which he reported experiencing blasts, explosions, a fall, and a blow to the head while on deployment.  He reported symptoms of losing consciousness, being dazed or confused, concussion and head injury immediately after these events, with balance problems or dizziness, irritability, headaches and sleep problems that began thereafter.  After interviewing the Veteran, the VA primary care nurse indicated the Veteran had a positive screen for TBI.

In a June 2012 VA examination, the VA neurologist took down a detailed history of the Veteran's medical history as to his head injuries in service and reported residual symptoms thereafter, to include notations from the Veteran's service treatment records and the August 2010 TBI screening.  Upon examination of the Veteran, the VA neurologist opined that the examination was normal, and that the Veteran's reported headaches were most consistent with analgesic rebound headaches.  Regarding the Veteran's history of head trauma, the VA neurologist indicated that it was clear that the Veteran experienced a blow to the head while in service, however, there was no evidence of any significant residual or neurological deficit from this event.  The VA neurologist opined that it was less likely than not that the Veteran's current symptoms of headache, posttraumatic stress disorder (PTSD) and memory difficulties were related to a TBI.  A June 2012 VA examination addendum indicates the VA examiner reviewed the Veteran's claim file, and interviewed and examined the Veteran.


In a September 2016 videoconference hearing, the Veteran testified to experiencing head injuries in service, specifically from mortar and rocket blasts while he was deployed to Southeast Asia.  He also reported that he had struck his head one night in 2008 after stumbling and falling onto a piece of furniture, which required seven stiches on his head.  The Veteran remembered getting out of bed but doesn't remember the impact, however, he indicated his roommate said he did not lose consciousness.  Additionally, the Veteran testified that he currently experienced periodic headaches, occasional dizziness and sleep disturbance, and that he did not receive current treatment for TBI residuals.  Through his representative, the Veteran indicated that his symptoms were not severe, and stated that his dizziness was more recurring in 2010 than it was currently.

Upon review of all the evidence, both lay and medical, the Board finds that the Veteran does not have a current diagnosis of residuals from a TBI.  Service treatment records, an August 2010 VA TBI screening and a June 2012 VA examination show the Veteran had experienced a TBI while in service, specifically, when he hit his head on a night stand, causing a concussion and requiring stiches in March 2008.  While Board acknowledges that the Veteran experienced a TBI while in service, the medical evidence of record does not show a diagnosis of current residuals related to his in-service TBI.  A June 2012 VA examination shows the Veteran complained of headaches and memory problems, and upon a thorough review of the Veteran's medical history and claims file, to include the August 2010 TBI screening, the VA neurologist opined that there was no evidence of any significant residual or neurological deficit from his in-service concussion.  The VA neurologist further explained that the Veteran's headaches were most consistent with analgesic rebound headaches.  The Veteran also testified within the September 2016 videoconference hearing that his dizziness was more recurring in 2010 than it was currently, and stated that he did not seek treatment for TBI residuals.  Additionally, as to the reported symptom of sleep disturbance, the Board notes that the Veteran is already service-connected for PTSD based in part on reported symptoms of chronic sleep impairment. 

The only other evidence of record supporting the Veteran's contentions are his personal statements and September 2016 videoconference testimony, indicating that he experiences residuals from a TBI.  His statements do not establish the required diagnosis of a current disability or a nexus between any acquired pathology and his military service.  Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise, such as a formal diagnosis.  Jandreau, 492 F. 3d 1372.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See 38 U.S.C. § 1110 (2012); Brammer, 3 Vet. App. at 225.  Absent a current diagnosis, the Board finds that service connection is not warranted for residuals from a TBI.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).


ORDER

Service connection for residuals from a TBI is denied.



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs