Citation Nr: 18143989 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 06-37 426A DATE: October 23, 2018 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. FINDING OF FACT A TBI, or residuals thereof, has not been present during the period of the claim. CONCLUSION OF LAW The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1970 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for a TBI. This matter was before the Board in December 2010 at which time it was remanded to allow for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The claim was remanded in September 2012 for additional evidentiary development. Subsequently, in a November 2017 decision, the Board denied service connection for a TBI. In January 2018, the Veteran’s attorney filed a Motion for Reconsideration, or in the Alternative, Motion to Vacate. In an April 2018 decision, the Board vacated the November 2017 Board decision denying service connection for a TBI. The Board observes that in the November 2017 Board decision, the issue of entitlement to service connection for an acquired psychiatric disability was remanded for additional evidentiary development. The claim was again remanded in a separate April 2018 Board decision. As this issue has not yet been recertified to the Board, it will not be addressed herein and will be the subject of a future Board decision if otherwise in order. REFERRED CLAIM In May 2018 written arguments, the Veteran’s attorney argued that his claim of service connection for residuals of a TBI should be construed to include a claim of service connection for migraine headaches. Although headaches are a recognized residual of TBI’s, as set forth in more detail below, the Board has determined that the most probative evidence reflects that the Veteran did not sustain a TBI in service, nor does he currently exhibit a TBI. The assertions of the Veteran’s attorney, i.e. that the Veteran’s current migraine headache disability had its inception in service as evidenced by his treatment in September 1971 for orbital cervical headaches (unrelated to a head injury), however, is a separate claim for a distinct disability. The Board finds that the claim of entitlement to service connection for migraine headaches has been raised by the record and refers the matter to the RO for initial consideration. 38 C.F.R. § 19.9 (b) (2017). SERVICE CONNECTION Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303 (b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for residuals of a TBI The Veteran asserts that service connection for a TBI is warranted. He contends that he suffered a head injury sometime between February 1971 and November 1971. Specifically, the Veteran claimed that he was found unconscious on the runway of El Paso International Airport during a tour of guard duty at Briggs Army Airfield sometime between July 1971 and November 1971. He stated that he was taken to William Beaumont General Hospital by ambulance following the incident and believes he suffered a head injury at that time. He asserts that the proper medical protocol was not followed and his TBI was overlooked. Service treatment records do not support the Veteran’s claim that he suffered a head injury during service. During an August 1971 Report of Medical History at separation from military service, the Veteran specifically having or ever having had a head injury. Subsequently, he was seen in September 1971 with complaints of headaches. At that time, he reported loss of memory or amnesias and periods of unconsciousness. He did not report a head injury at that time. The Board finds that had the Veteran sustained a head injury which resulted in headaches, he would have reported it in this clinical setting when he was seeking treatment for headaches. Cf. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803(7))); see AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Following examination, the Veteran was assessed as having orbital cervical headache since June 1971. Post-service medical records are also negative for a diagnosis of a TBI or residuals of a head injury that are related to the Veteran’s period of active service. Notably, the record on appeal contains clinical records from the Department of Corrections showing that the Veteran underwent physicals on multiple occasions. In personal history reports accompanying reports of physical examinations in September 1972, February 1974, May 1976, September 1981, the Veteran did not identify a history of a TBI although he reported a number of other disabilities and significant medical events. On examination, there was no documentation of a TBI or residuals thereof. Other records indicate that the Veteran’s head was within normal limits. Additionally, in a July 2006 initial mental health screening interview, the Veteran specifically denied any head injury. A VA TBI examination was provided in May 2015. The examiner noted that the Veteran had residuals of a TBI, which was assessed as vascular headaches. Notwithstanding, following a review of the claims file, a summary of the Veteran’s medical history, and examination of the Veteran, the examiner opined that due to the lack of evidence, the Veteran cannot be diagnosed with a head injury/TBI related to military service. In so finding, the examiner noted that in the August 1971 report of medical history, the Veteran reported frequent to severe headaches and dizziness or fainting spells. However, he denied a head injury. Further, service treatment records pertaining to treatment for or a diagnosis of a head injury were not located in the claims file. The examiner did note that headaches were reported in service. Hence, if there is evidence of on-going headaches, then the current headaches are at least as likely as not a continuation of the headaches in service. He indicated that the etiology of those headaches, however, remains unclear. The Veteran underwent a VA mental posttraumatic stress examination (PTSD) in May 2015. The examiner indicated that a review of the TBI examination would indicate that the Veteran did have a TBI as there was a residual of headaches. However, there was no finding of an actual TBI. Analysis After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a TBI. As noted herein, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The probative evidence establishes that the Veteran did not suffer a TBI during service and does not have residuals of a TBI. In this regard, service treatment records are negative for treatment for or a diagnosis of a TBI during military service. Notably, in the August 1971 report of medical history, the Veteran specifically denied a history of head injuries. While the Veteran was subsequently treated for orbital headaches in September 1971, there is no evidence to suggest that such disability is due to a TBI or that the Veteran suffered a head injury at that time. Post-service treatment records are also negative for a TBI or residuals of a TBI. As detailed herein, in private treatment records, the Veteran denied ever having a head injury and failed to report a history of a TBI in a number of post-service medical history reports. Moreover, in a July 2006 initial mental health screening, the Veteran specifically denied ever having a head injury. The Board acknowledges that the VA examiner indicated that vascular headaches are attributable to a TBI. Nonetheless, after reviewing the evidence of record, she determined that there was no indication in the service treatments records of a TBI. Neither the Veteran nor his representative has identified any medical evidence to contradict the VA examiner’s findings. The record contains no indication that at any time following separation from military service that the Veteran has been diagnosed with a TBI or residuals of a TBI. The Board acknowledges that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran’s disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran’s recent statements that he sustained a head injury are not credible, as they are contradicted by the contemporaneous clinical records. His statements that he sustained a traumatic brain injury or currently has a traumatic brain injury relate to a medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Even if the Veteran were competent to testify that he has a traumatic brain injury, the probative value of his general lay assertions are of lesser probative value than the reasoned opinion of the trained medical professionals who conducted examinations of the Veteran and found that he did not have a traumatic brain injury.   In summary, the most probative evidence shows that the Veteran did not sustain a head injury or TBI in service and that he does not currently have a TBI, or residuals thereof. The law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). As the most probative evidence shows that the Veteran does not currently have a TBI, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel