Citation Nr: 18147344 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-36 700 DATE: November 5, 2018 ORDER Entitlement to service connection for residuals, TBI is denied. FINDING OF FACT The Veteran does not have a current diagnosis of TBI or any residuals of TBI. CONCLUSION OF LAW The criteria for service connection for residuals, TBI have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103(A); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1967, February 1968 to August 1971, February 4, 1991 to February 6, 1991, January 4, 2002 to January 11, 2002, September 12, 2002 to September 15, 2002, February 20, 2002 to February 21, 2002. In his July 2016 Substantive Appeal, the Veteran requested a Board hearing. The Veteran was scheduled for the requested hearing on May 2, 2017. In September 2016, the Veteran withdrew his request for a Board hearing. Thus, his request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e). The Board observes that additional VA treatment records were received following the last adjudication by the RO in the June 2016 Statement of the Case. The Board has reviewed these records and observes that they are not pertinent to the issue of service connection for residuals, TBI addressed in the decision below. In November 2013, the Veteran underwent VA examinations to determine the nature and etiology of his residuals, TBI. In his November 2016 Appellate Brief, the Veteran, through his representative, stated that “VA failed its duty to assist by failing to obtain an adequate medical opinion that could be justifiably relied upon by the rating authority in order to evaluate the veteran’s disability 38 C.F.R. § 4.2. In this instant case, the examiner failed to provide a reliable etiology of the veteran’s residuals of TBI, albeit warranting service connection.” The Board notes that the November 2013 VA examiner reviewed the claims file and provided relevant history. The examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Additionally, the Board notes that the opinion is consistent with the evidence of record. 38 U.S.C. § 5103A(d); 38 C.F.R § 3.159(c)(4). Thus, the Board finds the opinion is adequate for rating purposes and an additional examination is not necessary. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. Service connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If an injury or disease manifests with two different disabling conditions, then two separate ratings should be awarded; it is improper to assign a single rating with a hyphenated diagnostic code under such circumstances. Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006); 38 C.F.R. § 4.27. Separate ratings may be assigned for distinct disabilities from the same injury if the symptomatology for the conditions is not duplicative or overlapping; however, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends that his residuals, TBI is due to his military service. At the outset, the Board notes that in his July 2016 Statement in Support of Claim, the Veteran requested that his residuals, TBI be service connected on a direct basis or in the alternative, as secondary to his service-connected PTSD. To support his contention, the Veteran asserted that the Cleveland VA Regional Office stated that all of the Veteran’s issues are “non-organic factors consistent with my PTSD....” However, the Board notes that the Cleveland Regional Office noted that “the examiner determined any subjective cognitive difficulties you might currently experiencing are highly likely due to “non-organic” factors. An impression of PTSD with no persisting residuals of a mild TBI was listed.... Current symptoms were attributed to PTSD, rather than residuals of a TBI.” The Board concludes that neither the VA examiner nor the Cleveland RO attributed the Veteran’s residuals, TBI to PTSD; both the VA examiner and the Cleveland Regional Office noted that the Veteran did not have persisting TBI symptoms but instead, PTSD symptoms. As the medical evidence of record does not show a relationship between the Veteran’s residuals, TBI and PTSD, and the Veteran has not submitted competent evidence or argument to support that theory of entitlement, the Board has limited its discussion to the direct theory of entitlement. Robinson v. Peake, 21 Vet. App. 545 (2008). The Veteran’s service treatment records (STRs) documents complaints, treatments, and diagnosis for a laceration to the Veteran’s head. In January 1994, the Veteran was seen for an injury to his head. The Veteran stated that he slipped on ice and hit his head. The Veteran was not unconscious. There examiner noted no dizziness, nausea, vomiting, confusion, or seizure activity. The examiner diagnosed the Veteran with laceration of the scalp. During his July 1996 Report of Medical Examination: Quad and Fifth Years Requirement exam and his March 2000 Periodic exam, the Veteran’s head was noted as being normal. The Veteran’s post-service treatment records note treatment and or evaluation for neurological at the Dayton VAMC. In July 2002, the Veteran was administered a neuropsychological assessment. The Veteran complained of problems with memory and concentration. The examiner diagnosed the Veteran with cognitive disorder, NOS; chronic severe tinnitus; chronic back, leg, and foot pain. The examiner stated that the etiology of the cognitive problems was unknown and more investigation was warranted, to include a CT scan. He further stated that some of the deficits can likely be attributed to reduced attentional capacity secondary to PTSD, hearing loss, and the distracting effects of chronic tinnitus and pain however the type degree and breadth of the deficits was far beyond what would be expected if these were the only causes. A 2007 brain MRI was notable only for atrophy “consistent with age.” In November 2013, the Veteran was afforded a VA examination to determine the nature and etiology of his residuals, TBI. The examiner reviewed the claims file and performed an in-person examination. The Veteran stated that in February 1994 while on active duty, the Veteran fell on the ice. The Veteran stated that he was unconscious for an undetermined period of time and was dazed, dizzy, disoriented, confused, and felt like he wanted to go to sleep. He was taken to the hospital where his head laceration was stitched up. He required no surgical intervention, had no fracture of the skull, and no intracerebral changes were observed on imaging. Additionally, while stationed in Vietnam, the Veteran stated that he “hit the ground”. He was unsure if he lost consciousness or had any alteration in consciousness, but received medical attention and was informed that he had a concussion. The examiner diagnosed the Veteran with PTSD with no persisting residuals of mTBI. The examiner stated that the Veteran met the neurological criteria for mTBI as evidenced by the fact that he was unconscious for an undetermined period and was dazed, dizzy, disoriented, confused, and wanted to go to sleep when he came to. However, there was no evidence of intracranial mass lesions, hemorrhage or abnormal enhancement. Normal flow voids were identified within the major intracranial vessels. There was no evidence of diffusion restriction to signify an acute or subacute infarct was evident. The basal ganglia, internal capsules, thalami, cerebellum and brainstem were unremarkable. The Veteran had age-appropriate peripheral volume loss with prominence of the ventricles and sulci was observed. The examiner further stated that the event described by the Veteran did not meet the criteria for moderate to severe TBI, as defined by the ACRM. Given that the described head trauma event was, at worst, a concussive experience, typically referred to as mTBI, there should be no permanent, residual cognitive changes. The examiner stated that according to TBI literature, a vast majority of mTBI or concussion experiencers were asymptomatic within six months or much sooner. Further, when symptoms persist, they are typically associated with litigation/compensation and/or psychological/psychiatric symptoms or disorders. In this case, the Veteran has been diagnosed and is being treated with PTSD. The examiner stated that the Veteran’s current behaviors were clearly consistent with PTSD symptomology. The examiner stated that based on all available evidence, any subjective cognitive difficulties the Veteran might currently experience are highly likely due to “non-organic” factors. Based on the evidence of record, the Board concludes that during the period on appeal, the Veteran has not been diagnosed with TBI or has residuals of TBI. The November 2013 VA examiner noted that the Veteran’s current behaviors were clearly consistent with PTSD symptomology. The Board notes that a separate rating would not be allowed for such symptoms, as it would be pyramiding. 38 C.F.R. § 4.14. As such, element one under Shedden is not met. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board has considered the Veteran and his representative’s statements regarding the etiology of the Veteran’s residuals, TBI. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the Veteran’s residuals, TBI and service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, the preponderance of the evidence is against the claim for service connection for residuals, TBI. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel