Citation Nr: 1802267 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-22 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, R.M, and R.S. ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1989 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran, his mother, and his brother testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a May 2017 Board hearing. A transcript of the hearing is included in the claims file. The issue of entitlement to nonservice-connected pension has been raised by the record in a May 2014 report of general information, 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 1. The Veteran sustained an injury to his scalp in April 1991 during active duty service that resulted in a 5 centimeter (cm.) laceration. 2. The Veteran's current TBI stems from a February 2003 injury to his head, and it is not caused by or otherwise related to his active duty service. CONCLUSION OF LAW The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has not raised any issues with the duty to notify. 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"). VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded VA examinations in June 2012, July 2012, and November 2016. The claims file also includes two addendum VA medical opinions from May 2013. During the May 2017 Board hearing, the Veteran's representative contended that the November 2016 VA examination was inadequate because it lasted at most 10 minutes. However, the November 2016 VA examiner considered the Veteran's self-reported symptoms and history, reviewed his pertinent records, and conducted an in-person examination. The Board determines that this VA examination and the other VA examination reports and medical addendum opinions listed above are adequate to decide the Veteran's claim. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion). The Veteran contends that his current TBI disability was caused by an in-service injury to his head. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The record shows that the Veteran has a current TBI disability. Numerous VA treatment records, as well as the June 2012 and July 2012 VA examination reports, show that the Veteran was diagnosed with TBI. Although the November 2016 VA examiner determined that the Veteran has not had a TBI or residuals of a TBI at any time and that his current disorder stems from other psychiatric disorders, the Board notes that the record includes multiple diagnoses of TBI during the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication). Accordingly, the first element of service connection, evidence of a current disability, is met for this disorder. Regarding the second element of service connection, the Veteran's service treatment records show that he injured his scalp in April 1991. Specifically, an April 1991 chronological record of medical care noted that the Veteran received a 5 cm. laceration on his scalp. An evaluation noted that the Veteran was functioning within normal levels. A chronological record from the following day shows that the Veteran received 9 staples to treat the scalp laceration and the assessment was of a resolving wound. Accordingly, the second element of service connection, evidence of a disease or injury, is met. Thus, the only question to be answered is whether the Veteran's current TBI disorder is caused by or otherwise related to his active duty service, to include the April 1991 injury to his scalp. Following the April 1991 injury, the Veteran's service treatment records are silent as to any additional complaints of or treatment for head injuries or wounds. In fact, the Veteran specifically denied any head injury or periods of unconsciousness during his July 1992 separation examination, and an evaluator noted that the Veteran's head, face, neck, and scalp were normal. Similarly, the Veteran stated that he did not have any head injury or periods of unconsciousness in a June 1993 evaluation and an evaluator noted that the Veteran's head, face, neck, and scalp were normal. Following service, the record does not show any complaints of or treatment for any TBI or head injury symptoms until February 2003. Specifically, multiple private treatment records from this month indicate that the Veteran incurred an injury to his head while working as a truck driver. Discharge summaries from two different private hospitals from February 2003 show that the Veteran was admitted into the hospital because he fell out of a truck and sustained a head injury. He was unconscious for an unspecified period of time. These treatment records show that the Veteran exhibited personality changes and erratic behavior after the February 2003 injury at work, and that he was diagnosed with a psychotic disorder, not otherwise specified (NOS), versus a psychotic disorder secondary to a TBI. Many private and VA treatment records, as well as lay statements from the Veteran's mother and brother, including during the May 2017 Board hearing, show that the February 2003 head injury was more severe than the April 1991 in-service injury to the Veteran's scalp. Many Social Security Administration (SSA) records indicate that the Veteran was unable to continue working due to his TBI symptoms after this 2003 injury. Since this post-service injury, numerous VA and private treatment records show that the Veteran has exhibited symptoms of TBI or residuals of TBI, and that he has routinely been treated for these symptoms. However, apart from lay statements from the Veteran, his mother, his brother, and additional lay individuals, only the June 2012, July 2012, and May 2013 VA examination and addendum medical opinions discuss the causal connection between the Veteran's current TBI and his active duty service. Regarding the lay evidence, the Veteran's mother, as well as his brother, friends, and previous co-workers, contended throughout the appeal that the Veteran exhibited personality changes since returning from active duty service in the early 1990s, and not just after he was injured in February 2003. These individuals made such contentions in May 2012, September 2013, December 2013, January 2014, May 2014, and June 2014 statements, as well as in a November 2005 VA primary care note, and during the May 2017 Board hearing before the undersigned. In addition to these lay statements, the claims file contains the medical opinions of the June 2012 and July 2012 VA examiners, with addendum VA medical opinions from May 2013, regarding the causal connection between the Veteran's current TBI and his active duty service and post-service February 2003 injury to the head. The June 2012 VA examiner noted that the Veteran had an injury to his head in service in April 1991 and another, more severe, injury to his head in 2002. She determined that the Veteran's TBI began in April 1991. However, the Board notes that this examiner was not able to review the Veteran's records, including those located in his claims file, and based her opinion that the Veteran's current TBI began in April 1991 solely on the statements from the Veteran and his mother during the examination. Accordingly, the probative value of this examiner's opinions is diminished. The July 2012 VA examiner concluded that the Veteran's psychotic disorder due to a brain injury with delusions and hallucinations was at least as likely as not due to his in-service head injury while he was in the United States Navy. Although this examiner noted that he reviewed the Veteran's records, it also appears that this examiner based his opinion on the lay statements made by the Veteran and his mother during the examination. In fact, this examiner noted that the Veteran was an unreliable historian and that his mother was confused about the details of the Veteran's medical history, in particular, as to why the Veteran stopped working in 2002. Additionally, this examiner failed to provide any explanation or rationale for his opinion that the Veteran's current psychotic disorder was caused by the in-service injury to his head. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions); Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record); Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). However, in a May 2013 addendum VA medical opinion, the July 2012 VA examiner further elaborated as to his opinion that the Veteran's current psychotic disorder was at least as likely as not (50 percent probability) incurred in or caused by his claimed in-service head injury. The examiner noted that the Veteran's VA treatment records indicate the presence of a psychotic disorder due to a TBI with no documented history of a pre-existing psychotic disorder. The examiner noted that while the Veteran and his mother were not the best historians during the July 2012 VA examination, they gave this examiner no impression that there were any prodromal signs of schizophrenia prior to the Veteran's head injury. The examiner further noted that after the Veteran's seizure at age the age of 12, there were no documented ongoing symptoms. The Board notes that the record includes evidence that the Veteran incurred a seizure in 1978 due to sleep deprivation, and that any seizure-related symptoms resolved by 1982, approximately seven years prior to the Veteran's active duty service. Furthermore, neither the Veteran, nor the record, has alleged or indicated that the 1978 seizure is causally related to the Veteran's current TBI disorder. In contrast to the July 2012 VA examiner, who also provided the May 2013 addendum medical opinion, are the opinions of another May 2013 VA examiner. This examiner concluded that the Veteran's current TBI was less likely than not (less than 50 percent probability) incurred in or caused by his claimed in-service injury after reviewing and citing to the Veteran's records and providing a thorough explanation for his opinions. This examiner opined that the Veteran's current TBI is at least as likely as not a result of his post-service head injury. The examiner explained that the record showed a normal neurological examination in April 1991 with post-injury health questionnaires showing no complaints of any disorder related to a potential TBI and/or residuals of potential TBI. The examiner noted that the Veteran reported he was in good health on June 11, 1993. The examiner also noted that the record shows that the Veteran learned to drive a truck and worked as a truck driver from 1992 to 2003. The examiner explained that the Veteran's mother's reports of the Veteran's financial irresponsibility, including giving away "all" of his money, prior to the post-service injury less likely as not reaches the standard of "at least as likely as not" to attribute this behavior to the April 1991 head injury. This examiner considered the July 2012 VA examiner's opinions, to include the opinion from May 2013, and indicated that the July 2012 VA examiner relied on the Veteran's history of the April 1991 event, and that the examiner reported that the accuracy of the history was questionable. The May 2013 VA examiner noted that the Veteran's post-service medical records show loss of consciousness, emesis, confusion, cognitive changes, and personality changes associated with the post-service injury. This examiner also noted that the Veteran's mother reported that the post-service injury was more severe than the in-service-injury. Given this evidence, the Board finds that the Veteran's current TBI stems from a February 2003 injury to his head, and it is not caused by or otherwise related to his active duty service. The Board has considered the Veteran's lay statements, as well as those statements from the Veteran's mother, brother, friends, and previous co-workers, that his current TBI disorder is caused by his in-service injury to his scalp in April 1991. However, although the Veteran and these individuals are competent to report symptoms that they perceived through their own senses, such as any claimed personality changes after the Veteran's separation from service, they are not competent to offer an opinion as to the cause of this type of brain injury or disease due to the medical complexity of the matter involved. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). TBI requires specialized training for a determination as to diagnosis, causation, and progression, and is therefore not susceptible to lay opinions on causation or aggravation. Thus, the Veteran and these individuals are not competent to render an opinion or attempt to present lay assertions to establish the cause of this disorder. Of more probative value are the opinions of the June 2012, July 2012, and May 2012 VA examiners, which are competent on the issue of causation of medically complicated matters. As noted above, the probative value of the June 2012 VA examiner's opinions are diminished by the fact that the examiner was not able to review the Veteran's records prior to providing a positive nexus opinion. Likewise, in weighing the probative value of the July 2012 VA examiner, in conjunction with this examiner's May 2013 addendum medical opinion, against the opinions of the other VA examiner who provided an addendum medical opinion in May 2013, the Board determines that the record shows that the Veteran's current TBI is not caused by or otherwise related to his active duty service, but is caused by his February 2003 post-service head injury. The Veteran's service treatment records after the April 1991 injury to his scalp show that the Veteran did not complain of and was not treated for any TBI symptoms or residuals of a TBI and that he indicated during his separation evaluation that he did not have any symptoms associated with a head injury or loss of consciousness. Additionally, as noted by the May 2013 VA examiner, the record shows that the post-service injury was much more severe than the in-service injury. This fact is corroborated by the record, which showed that the Veteran did not lose consciousness in service after the April 1991 injury, but did lose consciousness after the February 2003 injury. Moreover, although the record does not show that the Veteran was treated for any TBI symptoms after the April 1991 injury, he was hospitalized on at least two occasions following the February 2003 injury for personality changes and other residuals of TBI. Likewise, the Veteran was able to learn to drive and work as a truck driver from 1992 to 2003 after the April 1991 injury, but his work history shows that he could not continue working after the February 2003 injury. Thus, the Board must regrettably find that the Veteran's current TBI is not caused by or otherwise related to his active duty service. Accordingly, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for TBI, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. The Board regrets that a more favorable determination could not be made in this case. The undersigned very much appreciated the testimony provided by the Veteran and his family at the May 2017 hearing. As noted in the Introduction, the Board has referred a claim for non-service-connected pension benefits, as such benefits contemplates the inability to work due to non-service-connected disability or disabilities. ORDER Service connection for a TBI is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs