Citation Nr: 18152359 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-44 254 DATE: November 21, 2018 ORDER Entitlement to service connection for a traumatic brain injury is granted. REMANDED Entitlement to service connection for a cervical spine condition is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in relative equipoise that the Veteran has a currently diagnosed traumatic brain injury that was caused by or incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a traumatic brain injury have been satisfied. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 2005 to August 2009, to include service in Iraq from March 2007 to October 2007. This case comes on appeal of a September 2014 rating decision. The Board notes that on his VA Form 9 the Veteran limited his appeal to the issues addressed below. Entitlement to service connection for a traumatic brain injury (TBI) Service connection will 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, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). VA treatment records document that the Veteran underwent an initial TBI screening in July 2013. The screening at that time was negative. However, in October 2015, the Veteran underwent a secondary TBI screening that was significantly more intensive than the initial July 2013 screening. At the October 2015 screening, the Veteran described at least three occasions during his service as a motor vehicle operator in Iraq in which he fell from a truck, hitting his head. Although the Veteran was not in combat himself, he drove trucks in support of combat operations and reported being in convoys that were exposed to improvised explosive devices (IEDs). The Veteran recalled one occasion in which he fell from a truck, hitting his head on the ground, after which other people told him he had lost consciousness for several seconds. Since service in Iraq, the Veteran reported experiencing dizziness, loss of balance, poor coordination, severe headaches, noise sensitivity, severe forgetfulness, slowed thinking, and poor concentration. These symptoms were also observed by the Veteran’s spouse and brother, who each noted in written correspondence that the Veteran’s cognitive function had notably diminished after service. At the October 2015 evaluation, the Veteran’s doctor reported that the injury history and course of clinical symptoms were consistent with a diagnosis of TBI sustained during deployment and concluded, “The Veteran has had a mild TBI (mTBI) during his deployment to Iraq.” The Board notes that the Veteran’s service treatment records do not specifically document the in-service events the Veteran has described. The Veteran is competent to describe events as he experienced them however, and although there are some inconsistencies in the Veteran’s reporting of events over the years, the Board finds that this is understandable given the nature of these events and the Veteran’s service. The Board specifically notes that on the Veteran’s post-deployment health evaluation in September 2007, the Veteran endorsed developing dizziness and light headaches during deployment, with headaches continuing to bother him upon his return. The Veteran also reported difficulty remembering things post-deployment. On his examination on separation from service, the Veteran reported that he had memory loss frequently throughout the day. In light of the foregoing, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence is at least in relative equipoise that the Veteran has a diagnosed TBI that was caused by or incurred in service. After extensive evaluation, a VA medical doctor diagnosed TBI related to injuries sustained during deployment to Iraq, based on the same symptoms that were documented in his service treatment records. Indeed, although the in-service injuries are not documented, the Veteran’s TBI symptoms were shown to have begun at the time the Veteran claims to have incurred injuries to his head, and those same symptoms continued to the time of the TBI evaluation. As this places the evidence in equipoise, the Board will resolve all doubt in the Veteran’s favor and grant the benefit sought on appeal. REMANDED ISSUE Entitlement to service connection for a cervical spine condition is remanded. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has a diagnosed cervical spine disability. An August 2014 MRI identified mild disc bulging involving the C5/6 and C6/7 vertebrae with thecal sac indentation. Furthermore, an August 2016 treatment note shows a diagnosis of cervical disc disorder with myelopathy. The Veteran has attributed his current cervical spine disability to his service, which required constant wear of up to approximately 100 pounds of gear, to include a flak jacket and Kevlar helmet. The Veteran claims that this put chronic strain on his neck that manifested in the current disability. To date, the Veteran has not been afforded a VA examination for his cervical spine disability. As the record does not contain sufficient information to decide the claim, the claim must be remanded to provide the Veteran with a VA examination. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the cervical spine, to include all conditions involving muscle spasms and nerve conditions that may be related to a cervical spine disability. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the cervical spine, to specifically include any neurological conditions. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. 2. Once the above development is completed, as well as any other development deemed necessary thereafter, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel