Citation Nr: 18149630 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 16-49 009 DATE: November 14, 2018 ORDER Service connection for traumatic brain injury (TBI) residuals is granted. FINDINGS OF FACT 1. The Veteran is currently diagnosed with residuals of a TBI. 2. The Veteran clearly and unmistakably sustained a TBI in a motor vehicle accident prior to service. 3. It is not clear and unmistakable that any residuals related to the preexisting TBI did not worsen in severity during service. 4. During service the Veteran was awarded the Purple Heart for injuries related to a mortar attack while deployed in Iraq, to include a scalp laceration injury. 5. The Veteran’s currently diagnosed TBI residuals are due to the in service mortar attack related head injury. CONCLUSIONS OF LAW 1. The Veteran clearly and unmistakably sustained a TBI prior to service. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. It is not clear and unmistakable that any residuals of the preexisting TBI were not worsened during service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (2017). 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for TBI residuals have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from June 2004 to May 2007. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakoda. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision grants service connection for TBI residuals, no further discussion of VA’s duties to notify and assist is necessary. Service Connection for TBI Residuals Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. In explaining the meaning of an increase in disability, the Court has held that “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). A veteran need not produce any evidence of aggravation in order to prevail under the no-aggravation prong of the presumption of soundness; rather, the burden is on VA to establish by clear and unmistakable evidence that it was not aggravated or that any increase in severity was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). “The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding “that the record contains insufficient evidence of aggravation.” Id. Preexistence of TBI At the outset, the Board notes that the Veteran is currently diagnosed with TBI residuals. A “second level” TBI examination from a VA Medical Center (VAMC) in January 2015. During the examination, the Veteran reported having a number of neurological symptoms, including dizziness, loss of balance, poor coordination, headaches, and mental deficits, among other relevant symptoms. At the conclusion of the TBI examination, the VAMC staff neurologist opined that the Veteran’s symptoms were due to both the Veteran’s already service connected posttraumatic stress disorder (PTSD) and the “deployment related TBI.” Further, the Board notes that, at the May 2004 service entrance examination, no preexisting TBI residuals were “noted”; therefore, the presumption of soundness attaches and requires clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service to rebut the presumption of soundness. Having reviewed all the evidence of record, both lay and medical, the Board finds that the evidence reflects that it is clear and unmistakable that the Veteran sustained a TBI prior to service. In a March 2014 statement in support of claim, the Veteran conveyed having sustained a TBI in a motor vehicle accident at the age of 11 or 12. Additionally, VA subsequently received the October 1993 treatment records showing that the Veteran sustained a head injury in a motor vehicle accident prior to entry into service. While the evidence of record reflects that the Veteran clearly and unmistakably sustained a TBI prior to service, the evidence does not clearly and unmistakably show that any preexisting residuals of the TBI were not worsened in severity during service. As discussed above, per the report from a January 2015 second level VAMC TBI examination, a VAMC neurologist found that the Veteran has TBI residuals directly related to an in service TBI. This medical evidence is of sufficient probative value to prevent a finding that there is clear and unmistakable evidence that any preexisting TBI residuals were not aggravated during active service; therefore, the presumption of soundness at service entrance is not rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Service Connection for TBI Residuals When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner at 1096. At the outset, the Board notes that the Veteran is currently diagnosed with residuals of a TBI. As noted above, in January 2015, a VAMC neurologist conducted a second level TBI examination. During the examination the Veteran advanced having a number of neurological symptoms, including dizziness, loss of balance, poor coordination, headaches, and mental deficits, some of which the VAMC neurologist opined were due to a deployment related TBI. Next, the Board finds that during service the Veteran sustained a TBI during a mortar attack. The report from a September 2006 personnel action reflects that the Veteran was awarded the Purple Heart for injuries sustained in a mortar attack while the deployed to Iraq. Per the personnel report, the Veteran was only nine meters from the point of impact, and was struck in the head/scalp with shrapnel. Having reviewed all the evidence of record, lay and medical, the Board finds that the currently diagnosed TBI residuals are due to the in service mortar attack related head injury. The Board notes that the Veteran received a VA TBI examination in November 2014; however, at the conclusion of the examination the VA examiner rendered a negative aggravation opinion. As the instant matter has been converted to one for direct service connection, the opinion on the question of aggravation is of no probative value. In the March 2014 statement in support of claim, the Veteran advanced having a severe headache immediately following the mortar explosion, and that the Veteran continues to experience severe headaches. At the November 2014 VA TBI examination, the Veteran conveyed having worsening symptoms similar to those associated with a TBI, including headaches, concentration and memory problems, and irritability. As discussed above, in January 2015 the Veteran received a second level TBI examination from a VAMC neurologist. Per the examination report, the Veteran disclosed having other TBIs outside of service to the VAMC neurologist. After discussing the Veteran’s various TBI’s and conducting an examination, the VAMC neurologist opined that the symptoms diagnosed on examination were due to a combination of the Veteran’s already service connected PTSD and the deployment related TBI. In other words, the VA examiner found that the Veteran had neurological symptoms that were due to the in service TBI, and which were separate and distinct from the PTSD symptoms. (Continued on the next page)   The Veteran is currently diagnosed with TBI residuals, which a VAMC neurologist has specifically attributed to an in service mortar attack that resulted in a head injury to the Veteran. Absent any evidence to the contrary, the Board finds the currently diagnosed TBI residuals are related to active service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel