Citation Nr: 18145162 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 10-39 284 DATE: October 26, 2018 ORDER Entitlement to service connection for residuals of traumatic brain injury (TBI) is denied. FINDING OF FACT The competent and probative evidence shows the Veteran does not have residuals related to a disease or injury in service, to include a TBI from a motor vehicle accident. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of TBI have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1976 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board remanded the claim in April 2014 for additional development and November 2017 for a supplemental statement of the case. Additional evidence consisting of VA and private medical treatment records was added to the claims file after the last supplemental statement of the case in May 2018. A waiver is not needed as the VA treatment records are not relevant and the private medical records are cumulative and/or redundant of evidence previously of record. 38 C.F.R. § 20.1304. Entitlement to service connection for residuals of traumatic brain injury The Veteran seeks service connection for residuals of traumatic brain injury. Specifically, the Veteran indicates that while stationed in Phoenix, Arizona in January 1979 he was involved in a car accident and his head went through the windshield. The Veteran reports that he lost consciousness as the result of the accident. A March 2009 Report of Contact appears to reflect that the Veteran reported decreased motor skills, balance problems, and headaches as the result of his injuries in the car accident. The Veteran’s spouse contends the Veteran experiences a worsened temper, headaches, and shakes or tremors due to TBI. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A current disability has been established. Post-service treatment records reflect the treatment and diagnosis of a variety of conditions, including a diagnosis of ataxia due to cerebellar degeneration, alcoholic, in February 1990 and cerebellar degeneration of an unknown etiology in January 2010. Treatment records from January and May 2014 show generalized cerebellar atrophy with worsening gait and coordination symptoms. Other records reflect diagnoses of cognitive disorder not otherwise specified and traumatic brain injury. A current disability is established. Service treatment records show that in January 1979, the Veteran was involved in a motor vehicle accident and sustained a mild brain concussion. The Board finds that an in-service injury occurred. As a current disability and in-service injury are show, the only remaining element is whether there is competent evidence of causal nexus. A July 2009 VA TBI examiner opined that it was less likely than not that the Veteran’s current headaches, dizziness, balance problems, memory loss and sleep disturbances were related to the in-service head trauma as he was most likely “stunned or dazed” with no definite documentation of unconsciousness following the in-service motor vehicle accident. However, a clinical rationale was not provided. In January 2012, the Veteran underwent a VA mental disorders examination. The VA examiner indicated that there was no diagnosis of a traumatic brain injury. In April 2014, the Board determined that the July 2009 VA opinion was not probative and remanded the appeal for another VA examination. In July 2017, the Veteran underwent a VA TBI examination. The examiner, a neurologist, conducted a detailed clinical interview, reviewed the evidence in the file, and conducted a clinical evaluation. The examiner opined that the Veteran does not experience any residuals (including current neurological complaints such as balance issues, handwriting issues, memory issues) from the service-related head injury. The examiner provided a detailed summary of the Veteran’s relevant history, and rationale for his opinion- a brief summary of which is discussed here. The examiner noted that the contemporaneous service records showed the Veteran had lost consciousness at the scene of the accident, but was conscious and operative upon arrival to the emergency department. The examiner noted that regardless of etiology of any loss of consciousness, there was no mention of any cognitive/behavioral residuals of the motor vehicle accident noted in the service records. The examiner further explained that individuals with a mild TBI generally recover to premorbid levels of functioning within a year of injury, as this is a static encephalopathy, and that deficits secondary to a remote history of mild head injury would not be expected to worsen over time, especially 35 years after the inciting incident. The examiner noted that worsening or persistence of symptoms is often related to other stressors or other factors such as mental health issues. There was no mention any cognitive complaints in patient's medical records until mentioned at a Compensation and Pension examination in 2009. Thus, it was more likely than not that the worsening concentration/attentiveness and emotional/behavioral signs and symptoms are part of a co-morbid mental disorder and history of alcohol dependence and do not represent residuals of a TBI. The examiner indicated that the Veteran has been followed by East Orange VAMC neurology consult since November 2009 with a diagnosis of cerebellar atrophy/degeneration which has been attributed to alcohol use. The Board finds the July 2017 VA opinion highly competent and persuasive. This opinion was based on the examiner’s familiarity with the Veteran’s service injury and post-service history as gleaned from a review of the claims file and interview with the Veteran, and current clinical evaluations. The opinion is particularly persuasive as the examiner relied upon his medical expertise as a neurologist. The examiner supported his opinion with a fully-explained and cogent rationale that is consistent with the evidence of record. Notably, there is no competent and equally probative medical nexus opinion to the contrary. The Veteran’s lay opinion that he has residuals of a TBI related to his motor vehicle accident in service is not competent. This is a complex medical question for which medical expertise is required. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009); Jandreau v. Shinseki, 492 F.3d 1372 (2007). The Veteran has not provided evidence showing that he has the requisite medical expertise or training to proffer such an opinion. In sum, the competent and highly persuasive evidence that addresses the matter of causal nexus is unfavorable. There being no contrary and equally probative evidence, the preponderance of the evidence is against the claim. The benefit of the doubt doctrine is therefore not applicable in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Service connection is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel