Citation Nr: 18148827 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-00 521 DATE: November 8, 2018 ORDER Entitlement to service connection for residuals of a traumatic brain injury is granted. FINDINGS OF FACT 1. Neither a history of a traumatic brain injury nor residuals thereof were noted on enlistment examination in October 1976 and the presumption of soundness has not been rebutted by clear and unmistakable evidence. 2. The evidence is at least in equipoise as to whether the Veteran currently has residuals of an in-service traumatic brain injury. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, residuals of a traumatic brain injury were incurred during active service. 38 U.S.C. §§ 1111, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1976 to October 1979. In May 2018, the Board remanded the appeal for additional development. The case has since returned to the Board. Entitlement to service connection for residuals of a traumatic brain injury Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). There is a two-pronged test for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable (obvious or manifest) evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon a “thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.” 38 C.F.R. § 3.304(b)(1). The United States Court of Appeals for Veterans Claims (Court) has held that the presumption of soundness upon entry into service may not be rebutted without “contemporaneous clinical evidence or recorded history” in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The United States Court of Appeals for the Federal Circuit explained the Miller decision finding that “[n]othing in the court’s opinion suggests that without such evidence the presumption can never be rebutted,” emphasizing that any such determination must consider “how strong the other rebutting evidence might be.” Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). Service treatment records show that on examination for enlistment in October 1976, the Veteran’s head and neurologic system were reported as normal on clinical evaluation. On the associated report of medical history, he denied having had any head injuries. In February 1979, the Veteran was seen with a left parietal laceration after slipping on the ice approximately four hours prior. He reported loss of consciousness for a few minutes and was complaining of headache. When evaluated by the flight surgeon, the Veteran reported he was unconscious for one hour, but also stated that he walked back to the barracks after the fall and went to bed. He was brought to the emergency room after blood was found on his head. Objectively there was a two-centimeter jagged laceration in the left parietal region of the scalp. There were no bony or neurologic abnormalities noted on examination. The assessment was a two-centimeter laceration. No further treatment related to this injury is shown during service. Subsequent records suggest the Veteran had a preservice traumatic brain injury. For example, a December 2009 treatment summary indicates that at age 13, the Veteran was hit in the head with a bat by a mentally ill man and spent 2-3 days in the hospital. His left eye was “dislocated from the socket” requiring a surgical repair. The appellant stated that after this accident he felt more confused, less focused, and had anxiety. An October 2010 magnetic resonance imaging (MRI) scan revealed atrophy and right frontal gliosis, in other words, scarring, and dilatation of the anterior horn of the right lateral ventricle which was consistent with an old brain injury in that location. An October 2011 VA psychiatry note includes a diagnosis of mood and cognitive disorder due to frontal traumatic brain injury (status post childhood injury). Past brain imaging studies from 2005 revealed findings that may have been sequelae from a traumatic head injury, age 10, with possible contributions from later injuries as well. An October 2011 VA neurology consult notes a history of the Veteran being hit by a bat at age 14, possibly losing consciousness, and possibly requiring an overnight hospital stay. A September 2014 Report of General Information documents the Veteran’s report that he was knocked out when he was 13, and knocked out again when he was hit in the head in service. On VA examination in July 2018, the Veteran reported that at age 14 he was accidentally struck by a bat by another player over the left eye and did not think he had loss of consciousness. He denied being admitted to the hospital as well as any changes in memory, behavior, or school performance after this incident. Given the foregoing, the Board must consider whether the Veteran had a traumatic brain injury or residuals thereof prior to his entrance on active duty. As a neurologic disorder, to include residuals of a traumatic brain injury, was not noted on the October 1976 enlistment examination, the presumption of soundness applies and the burden shifts to VA to rebut the presumption. Wagner. On review, the presumption of soundness has not been rebutted. The “clear and unmistakable” standard is a high one. The record contains no medical evidence contemporaneous to the alleged preservice incident and there is no indication of this injury until reported to medical professionals many years following service. The details concerning the severity and any subsequent residuals of this alleged preservice incident are inconsistent, and in the August 2018 addendum, a VA neurologist stated “it is unclear if and when a [traumatic brain injury] occurred prior to the incident of 2/3/1979, i.e. I do not know if the veteran had a pre-existing [traumatic brain injury] based on the available evidence.” Considering the examiner’s statement, as well as the Veteran’s affirmative denial of a prior head injury at enlistment, the record cannot be said to clearly and unmistakably show a preexisting traumatic brain injury or residuals thereof. Having determined that a traumatic brain injury did not preexist service, the Board must consider whether it had its onset during service or is otherwise related to service. Post-service records show subsequent brain injuries. For example, in approximately September 2015, the Veteran was hit in the head with a kayak paddle and suffered an occipital skull fracture. At some point after this, the Veteran had septic emboli to the brain in the setting of endocarditis. Following a VA examination in July 2018, the examiner stated that the Veteran had sustained multiple insults to brain function, including a traumatic brain injury, decades of alcohol and polysubstance abuse, and a septic emboli to the brain. The examiner stated he could not identify traumatic brain residuals without resort to speculation, although it was at least as likely as not that current cognitive impairments were a result of a combination of all the insults to the brain listed. The July 2018 examiner further stated that the available information was not detailed enough for him to determine whether traumatic brain injuries occurred in childhood, in 1979, or at other times, other than at least one traumatic brain injury occurred at some point in his lifetime as the brain MRI shows a lesion that is most consistent with brain trauma but the date of that lesion cannot be determined and could have occurred at any time in his life. In an August 2018 addendum, the examiner stated that records regarding the February 1979 incident show the Veteran reports minutes of loss of consciousness to the nurse and an hour of loss of consciousness to the doctor, but if there was any loss of consciousness due to a blow to the head, a diagnosis of traumatic brain injury could be made. The examiner noted though that given the lack of documentation, it was a matter of speculation whether or not this incident caused a traumatic brain injury or resulted in permanent residual symptoms. On review, the evidence of record shows that the Veteran suffered a left parietal scalp laceration during service and while the information is somewhat inconsistent, contemporaneous records note a loss of consciousness. The VA medical opinion also indicates that current cognitive impairments were at least as likely as not a combination of all the insults to the brain listed. Thus, there are arguably some residuals related to the in-service head injury. Resolving reasonable doubt in the Veteran’s favor, service connection for a traumatic brain injury is warranted. The Board notes that even if there was clear and unmistakable evidence of a preexisting traumatic brain injury, the record does not contain clear and unmistakable evidence that it was not aggravated during service. In this regard, in the August 2018 addendum, the examiner stated that there was no clear and unmistakable evidence that a preexisting traumatic brain injury was or was not aggravated by service. In deciding this claim, the Board reiterates that it is granting service connection for the residuals of the in-service traumatic brain injury only. The rating to be assigned, which must reflect the impact of the subsequent nonservice connected brain injuries is a question not decided here. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel