Citation Nr: 18142863 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-15 594A DATE: October 17, 2018 ORDER Entitlement to service connection for traumatic brain injury (TBI) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, he currently has residuals of TBI that are at least as likely as not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for TBI are met. 38 U.S.C. §§ 1110, 1111, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to October 2008, during peacetime and wartime. His many awards include the Bronze Star, Meritorious Service Medal, Army Commendation Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with a campaign star, and the Combat Action Badge. The Veteran served overseas in Kuwait from August 1990 to March 1991 and in Iraq from January 2005 through December 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for traumatic brain injury The Veteran contends that he is entitled to service connection for TBI because his injuries causing TBI occurred during active duty service in Iraq in 2005. Based on a review of the Veteran’s service separation documents, the RO conceded combat exposure. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Direct service connection generally requires credible and competent evidence showing: (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board finds that the evidence supports a finding of an in-service injury. Specifically, the Veteran maintains that he experienced three separate blasts while serving in Iraq between April 2005 and July 2005. See VA TBI consultation, December 2014. In one episode, the Veteran was thrown to the ground or against some stationary object like a wall, vehicle or inside a vehicle by the explosion. Id. The Veteran is uncertain if he lost consciousness or experienced any disorientation or confusion immediately following any of those episodes. The Veteran was not evacuated from his theatre of operation following any of the blasts. Id. The Veteran is a recipient of a Combat Action Badge and his contentions are consistent with the circumstances, conditions or hardships of his service, notwithstanding the fact that there is no official record in the claim file of such incurrence. As such, the combat presumption applies and the Veteran’s lay statements alone are sufficient to establish the occurrence of an in-service injury. See 38 U.S.C. § 1154(b). Thus, the second element of service connection is established. See Holton, 557 F.3d at 1366. There is some contradiction in the medical evidence as to whether there is a diagnosis of a current disability. The VA examination in 2015, performed by a psychiatrist, had found no pathology to render a diagnosis of TBI. The VA examination from February 2016, performed by a psychiatrist, did not find a current disability. In contrast, a January 2016 record from a private physician showed diagnosis of mild TBI, noting the Veteran had memory difficulties with motor testing in the range of mild cognitive impairment. The neurologist then wrote a letter in April 2016 that the Veteran had been exposed to blast injuries with resulting mild traumatic brain injury, including chronic headaches. An August 2017 Disability Benefits Questionnaire from this same private neurologist also reflected diagnoses of mild TBI and mild cognitive impairment. Finally, a December 2014 VA TBI consult, performed by a psychiatrist, noted and discussed the in-service injuries (again, consistent with the Veteran’s combat service) and concluded that “based on the history of the injury and the course of clinical symptoms,” the Veteran had sustained a TBI during his 2005 deployment. Considering the medical specialties of the various providers (psychiatrists and neurologist), there is no reason to favor one opinion over another. Essentially when there are competing medical opinions, such as in this case over whether the Veteran currently has residuals of a TBI, doubt is to be resolved in the Veteran’s favor. Therefore, there is sufficient evidence to establish the first element of service connection (current disability). The remaining question is nexus to service. Again, there are competing opinions. The Veteran’s VA TBI consultation clearly linked the Veteran’s TBI to injuries during his OER/OIF deployment. See 2014 VA TBI consultation. Additionally, a private treatment provider offered the opinion that the Veteran “has been exposed to blast injuries with resultant mild traumatic brain injury.” See April 2016 private treatment record; August 2017 DBQ. In contrast, in addition to finding no current disability, the VA examiner in 2016 opined that the Veteran’s reports of cognitive decline with both long-term and short-term memory deficits, headaches, and other cognitive functioning difficulties were not caused by any service-connected incident, but may be related to the Veteran’s low serum B12, folate, and Vitamin D levels. There is no reason to favor one opinion over another, either based on the expertise of the medical professional or the rationale. Therefore, the evidence on nexus to service is also in equipoise. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran’s favor, the Board finds that the first and third elements of service connection are sufficiently established. See Holton, 557 F.3d at 1366. Thus, service connection for TBI is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Parker Reynolds, Associate Counsel