Citation Nr: 18144996 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 12-13 132 DATE: October 25, 2018 ORDER Entitlement to service connection for residuals of a left clavicle fracture secondary to service-connected traumatic brain injury (TBI) is denied. Entitlement to service connection for a compression fracture of the thoracic spine secondary to service-connected TBI is denied. Entitlement to service connection for residuals of rib fractures secondary to service-connected TBI is denied. FINDINGS OF FACT 1. The evidence is insufficient to show that the Veteran’s residuals of a left clavicle fracture is secondary to his service-connected TBI. 2. The evidence is insufficient to show that the Veteran’s compression fracture of the thoracic spine is secondary to his service-connected TBI. 3. The evidence is insufficient to show that the Veteran’s residuals of rib fractures are secondary to his service-connected TBI. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a left clavicle fracture secondary to service-connected TBI have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for a compression fracture of the thoracic spine secondary to service-connected TBI have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for residuals of rib fractures secondary to service-connected TBI have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2005 to July 2009. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran was involved in a motorcycle accident in June 2010, at which time he fractured his bilateral ribs and left clavicle, and he sustained a compression fracture of the thoracic spine. The Veteran claims that these injuries were incurred as a result of his service-connected residuals of a TBI, which caused him to have cognition impairment and a delayed reaction time. Specifically, he indicated that he was traveling approximately 20 miles per hour on his motorcycle on a curved, paved road when his friend lost control of his motorcycle. The motorcycle then slid into his lane. The Veteran further asserted that because of his service-connected TBI he did not comprehend how quickly the incident was occurring. As a result, he overreacted and lost control of his motorcycle due to over correction. See August 2010 Statement in Support of Claim; June 2011 Notice of Disagreement. Entitlement to service connection for residuals of a left clavicle fracture, compression fracture of the thoracic spine, and residuals of rib fractures secondary to service-connected TBI. The evidence shows that the Veteran had fractured his bilateral ribs and left clavicle, and he sustained a compression fracture of the thoracic spine during the appeal period. See Private Treatment Records. In addition, the Veteran does not assert and the evidence does not show that the Veteran’s injuries had their onset in service. Thus, the issue that remains disputed is whether the Veteran’s injuries of the bilateral ribs, left clavicle and thoracic spine are secondary to his service-connected TBI. To this end, the preponderance of the evidence is against the claim. After a June 2017 VA examination, the examiner opined that the Veteran’s residuals of fractured bilateral ribs, a fractured left clavicle, and compression fracture of the thoracic spine were less likely than not due to his service-connected TBI. The examiner indicated that his TBI is not related to his physical injuries. The examiner further reasoned that although the Veteran reported that his TBI caused cognitive impairment which caused slow reaction and contributed to his motorcycle accident, there is no objective evidence to indicate that his TBI has caused his cognitive ability to be slowed. The examiner indicated that the Veteran is fully functioning and there is no evidence to indicate that his motorcycle accident had anything to do with his TBI. Notably, the Veteran’s November 2009 initial VA TBI examination report indicated that the Veteran’s TBI manifested in decreased attention, difficulty concentrating, and difficulty with executive functions. To address the conflicting evidence, the Board sought an additional medical opinion from a specialist. In a June 2018 medical opinion, the examiner opined that the Veteran’s injuries were less likely than not proximately due to or aggravated by his service-connected TBI. The examiner reviewed the Veteran’s service treatment records, the previous VA medical opinions, the November 2009 TBI examination, and the hospital summary of the motorcycle accident. The examiner explain that based on review of the service treatment records, the only comment regarding TBI in service was by Veteran report on the separation questionnaire dated May 2009 and June 2009. The Veteran’s comments were “knocked out or silly with short-term memory loss.” There were no other details provided such as when the event occurred. Based on the November 2009 TBI examination the reported TBI was due to blast exposures during the Veteran’s first deployment. The examiner further explained that review of the March 2007 post deployment health assessment and October 2007 post deployment reassessment there was no documentation of TBI noted. Also, the Veteran stated no cognitive issues currently in response to screening question pertaining to difficulty with memory. Furthermore, an August 2008 health assessment indicates the Veteran denied trouble with concentration or memory. As such, the examiner reported that he would have concluded that the Veteran did not have a TBI on active duty. Regarding the November 2009 TBI examination, the examiner noted that the findings and conclusions were a result of the Veteran’s self-reporting as well as neuropsychological testing. It did not note specifics from the service treatment records suggesting the claims file might not have been reviewed. Regarding neuropsychological testing, the overall finding was “overall consistent average to low average functioning, though having some deficits.” The deficits were in varied fields and the conclusions drawn by the testing noted that the Veteran’s level of anxiety was likely impacting cognitive testing results. Specifically, the pattern noted on neuropsychological testing did not point to traumatic brain injury as the cause. The examiner concluded that the Veteran’s TBI did not in any way contribute to his motorcycle accident that occurred after service and resulting in several fractures. The conclusion was based on the objective findings in the service treatment records where there is no comment concerting TBI during the Veteran’s first deployment from September 2006 to May 2007. Also, even if the Veteran did have a TBI during his first deployment, there is no objective evidence of cognitive issues – including delayed reaction time – after his deployment as evidence by his post deployment health assessments in 2007 and 2008. The Veteran’s cognitive complaints did not interfere with his ability to perform his duties from May 2007 (when he returned from deployment) to his July 2009 separation. This conclusion is based on finding no medical entries for such complaints or command referred to medical for poor performance due to cognitive dysfunction after the Veteran’s first deployment. Lastly, the examiner noted that the majority of the conclusions in the November 2009 TBI evaluation were based on the Veteran self-report and not objective measures. The objective measures – neuropsychological testing – found overall average performance and likely anxiety impacted areas of marginal performance. The conclusions did not point specifically to TBU as causal. Thus, it is less likely than not that the Veteran has cognitive defects secondary to TBI, to include cognition impairment and delayed reaction time. As such, it is less likely than not that the Veteran’s service-connected TBI resulted in the motorcycle accident. The Board finds the June 2018 medical opinion probative to the question at hand. The examiner, a doctor in the neurology department, had the necessary expertise to render the opinion. The examiner considered an accurate history, to include the Veteran’s contentions regarding the nature of his cognitive symptoms. The opinion was definitive and supported by a rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board finds that the most persuasive evidence of record shows that the Veteran’s motorcycle accident and subsequent fractures were not proximately due to his service-connected TBI. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). It is also well established that lay persons without medical training, such as the Veteran, are not competent to provide medical opinions on matters requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the Veteran’s TBI caused cognitive dysfunction resulting in a motorcycle crash requires medical expertise to determine. (Continued on the next page)   Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s motorcycle accident was not related to his service-connected TBI. Accordingly, service connection for residuals of a left clavicle fracture, residuals of rib fractures, and compression fracture of the thoracic spine is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel