Citation Nr: 1800776 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-20 210 ) 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. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from May 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The case was certified to the Board by the RO in St. Petersburg, Florida. The Veteran testified at a hearing in August 2016 before the undersigned. A copy of the transcript has been associated with the claims file. The Board remanded the issues of entitlement to service connection for residuals of traumatic brain injury, headaches, and a cervical spine disability in November 2016 for further development. In an October 2017 rating decision, the Veteran was awarded service connection for headaches, and a cervical strain with degenerative disc disease. The Veteran noted his disagreement with the rating assigned for headaches, but not his cervical disability, in a November 2017 statement. The claim for an increased rating has yet to be adjudicated by the RO, and as such it is not before the Board at this time. The issues of whether there is new and material evidence to reopen the claim for service connection for left upper extremity radiculopathy and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities were raised by the record in March and November 2017 statements, respectively, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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 evidence is at least in equipoise as to whether preservice residuals of a traumatic brain injury incurred in a car accident were aggravated as a result of the Veteran's in-service head trauma in airborne school. CONCLUSION OF LAW Residuals of a traumatic brain injury were aggravated during active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable decision herein, a detailed discussion as to how VA satisfied its duty to notify and to assist pursuant to the Veteran's Claims Assistance Act of 2000 is not required. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131. Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Post-service treatment records show that the Veteran was diagnosed with residuals of traumatic brain injury, specifically post-traumatic brain injury syndrome with mild cognitive impairment and ataxia following an October 2017 VA examination. Service treatment records note a history of a brain concussion in May 1957, and the Veteran reported complaints of dizziness and headaches. Physical examination revealed a normal head, and that the appellant was normal psychiatrically. There was evidence of a hand tremor and hyperactive ankle jerks. In February 1959, the Veteran was noted to have been rendered unconscious in a 1957 car accident. Thereafter he developed headaches, but they later subsided. Following service entrance the appellant entered airborne school where he traumatized his head on landing and aggravated his headaches. He was thereafter removed from airborne duties and diagnosed with a post concussion syndrome. No abnormality was noted at his March 1960 separation examination. Following a March 2016 VA examination, the examiner found that the Veteran's traumatic brain injury clearly and unmistakably pre-existed service and opined that it was less likely than not aggravated beyond its natural progression during service. This opinion, however, is not adequate because it failed to discuss the February 1959 inservice finding of aggravation. At the August 2016 hearing, the Veteran reported that in February 1959, while attending airborne school, he had a hard landing in which he hit his head. According to a February 2017 private medical opinion by James A. Voirin, D.O., the Veteran's treating physician, it was at least as likely as not that residuals of a traumatic brain injury were due to his military service. Dr. Voirin rendered his opinion after reviewing the Veteran's treatment records. However, this opinion has limited probative value because it was not supported by a well-reasoned rationale and focused primarily on the severity of the Veteran's disabilities. In May 2017, following of review of the claims file a VA examiner found no objective evidence of residuals of a traumatic brain injury. He opined that the subjective psychological and cognitive symptoms were more likely than not related to some psychological or medical condition other than a traumatic brain injury. However, this opinion is not adequate as it was not rendered by a neurologist, as required by the November 2016 Board remand directives. Following an August 2017 VA examination a VA examiner found that the Veteran did not have any subjective symptoms of residuals of a traumatic brain injury and no evidence of an in-service traumatic brain injury, however, this opinion also is not adequate as it was not conducted by a neurologist, as required by the November 2016 Board remand directives. Further, it was based on inaccurate facts, as service treatment records do corroborate an in-service head trauma. In October 2017, following a review of the claims file, the VA neurologist opined that it "is it at least as likely as not" that any such residuals of a traumatic brain injury are due to or permanently aggravated by the Veteran's in-service head trauma. In his opinion, the neurologist focused solely on the in-service head trauma and diagnosed the Veteran with post-traumatic brain injury syndrome with mild cognitive impairment and ataxia. Service connection on a direct basis is warranted. The February 1958 enlistment examination noted a May 1957 brain concussion and complaints of dizziness, headaches, tremor of hands, and knee and ankle jerks. Physical examination, however, showed normal findings. Significantly, the October 2017 VA neurologist noted cognitive impairments, which were not noted in the enlistment examination. Moreover, in February 1959 it was found that the appellant's inservice head injury in airborne school aggravated his pathology. Hence, the Board finds that the Veteran's current residuals of a traumatic brain injury are the result of inservice aggravation of a pre-existing head trauma. In this case, there exists adequate medical evidence linking the Veteran's residuals of a traumatic brain injury to service which is at least in equipoise with competing opinions. Thus, resolving reasonable doubt in the Veteran's favor, service connection for residuals of a traumatic brain injury is granted. 38 C.F.R. § 3.102. ORDER Entitlement to service connection for residuals of a traumatic brain injury is granted. ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs