Citation Nr: 18153091 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-45 286 DATE: November 27, 2018 ORDER Service connection for a traumatic brain injury (TBI) is denied. Service connection for neuropathy of the left upper extremity is denied. Service connection for neuropathy of the right upper extremity is denied. Service connection for neuropathy of the left lower extremity is denied. Service connection for neuropathy of the right lower extremity is denied. A compensable rating for migraine headaches is denied. FINDINGS OF FACTS 1. The weight of the evidence is against finding that the Veteran has TBI or residuals of TBI. 2. The weight of the evidence is against finding that the Veteran has a current diagnosis of neuropathy of the upper extremities. 3. The weight of the evidence is against finding that the Veteran has a current diagnosis of neuropathy of the lower extremities. 4. The record shows that the Veteran’s service-connected migraines are manifested by, at worst, complaints of headaches, pain in both temples and occasional prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5013, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection of peripheral neuropathy of the upper extremities are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection of peripheral neuropathy of the lower extremities are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for an initial compensable rating for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service from February 1989 to April 1994. This matter is on appeal from an October 2015 rating decision. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Residuals of TBI The Veteran contends that he suffered a traumatic brain injury while in service. Service treatment records show that the Veteran was seen in April 1993 after hitting his head on an overhead rafter. He denied any loss of consciousness, blurred vision, nausea and vomiting. He was diagnosed with a contusion. The Veteran was seen in medical bay again in March 1994 after an assault, that resulted in swelling around the right eye. However, the Veteran denied losing consciousness or having any altered mental status. At a July 2015 neurologic examination, the Veteran was alert, and provided an excellent history through speech and language. After review of the Veteran’s file, the VA physician concluded that while the Veteran currently suffers from headaches, he did not sustain a traumatic brain injury by his account of one single event. It was also noted that the Veteran would not be scheduled for a follow up at the neurology clinic. At his August 2015 VA examination, the Veteran indicated that while stationed at Fort Bliss in January 2014, he was struck in the head with a metal crutch while breaking up a fight. He indicated that he filed a legal report of the incident a couple days later and was evaluated by the clinic. Upon examination, the examiner found no objective evidence of a traumatic brain injury. His head was normal. He scored 30/30 in a mini mental state testing. He was alert and oriented. He could spell “WOLRD” forwards and backwards. He followed the conversation and interview without any difficulties. He could read, follow commands, and recall 3 out of 3 items at 1 and 5 minutes. He could draw and copy the figure provided. Finally, he communicated well by spoken and written language. In support of his claim, the Veteran submitted a February 2016 statement indicating that he heavily relies on his smart phone to keep track of things in his life because of memory problems. He reported losing his ability to concentrate and is ability to socially interact with people. However, the Board notes that the Veteran is service connected for PTSD and memory loss is one of the symptoms commensurate with the Veteran’s rating. In reviewing the record, the Board finds that the Veteran is competent to report his symptoms and in-service injury. However, the Board finds that the preponderance of the evidence is against the Veteran’s claim for residuals of TBI. The Board notes that the medical evidence is more probative and more credible than the lay opinions of record. Particularly, the August 2015 VA examiner noted the Veteran’s reported symptoms but found no subjective symptoms of any mental, physical or neurological conditions or residuals attributable to TBI or any residuals of TBI. VA treatment records reported no impairments consistent with TBI. While treatment records note that the Veteran was seen at the TBI clinic, there is no indication that the Veteran had a TBI in service or any current residuals. Thus, the more probative evidence of record indicates the Veteran does not have TBI or any current residuals of TBI. As such, the Board finds that service connection for residuals of TBI is not warranted. For these reasons, the claim is denied. 2. Right and Left Upper Extremity The Veteran contends that he developed neuropathy of the left and right upper extremities as a result of his service. In his November 2014 statement, the Veteran asserted that he experienced numbness, tingling, and weakness during and after service. It is his belief that he developed peripheral neuropathy as a result of his exposure to jet fuel. At a July 2015 neurology consult, a neurologic examination yielded normal results. His peripheral pulses were intact, with no edema or trophic changes. There was no pronator drift. There was normal tone in the arms and legs. No tremors were detected. He retained full strength throughout his arms. He had rapid, fine finger movements, which performed well bilaterally. There was no dystaxia or dysmetria on finger-nose-finger testing. At his August 2015 VA examination, the Veteran told the examiner that he experienced numbness and tingling in both hands and feet since the mid-1990s. He did not recall seeking medical attention for it earlier. He described his symptoms such as numbness like pins and needles in both hands and feet. Upon examination, the examiner found that the Veteran did not have any symptoms attributable to any peripheral nerve conditions. A muscle strength test showed normal strength in elbow flexion, elbow extension, wrist flexion, wrist extension, grip, and pinch. He demonstrated normal reflexes in his biceps, triceps, and brachioradialis. A sensory examination showed normal results in his shoulder area, inner/outer forearm, and hand/fingers. In sum, the VA examiner did not find a diagnosis of peripheral neuropathy of the upper extremities was warranted. The record in this case is lacking any competent evidence to establish the presence of a neurological condition of the upper extremities. While the Veteran has stated that he has experienced numbness, tingling, and weakness in his arms, his medical records show no objective evidence of a diagnosis. While the Board has considered the assertions of the Veteran, this evidence does not provide a basis for allowance of the claim, as lay evidence is competent only when a condition can be identified by a lay person. See 38 C.F.R. §§ 3.159 (a). Lay evidence may be competent to establish a medical diagnosis, causation, or etiology when a lay person is (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F3d 1313 (Fed. Cir. 2009). In this case, the Veteran is not competent to diagnose neuropathy, as the Veteran appears not to have the medical training or qualification to make such a medical diagnosis. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, the claims file contains insufficient evidence to establish the presence of a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 49, 53-56 (1990). A medical examination was provided to investigate the Veteran’s contentions, but the reported symptomatology was not found sufficient to warrant the diagnosis of a disability. 3. Peripheral Neuropathy of Right and Left Lower Extremities In his November 2014 statement, the Veteran asserted that he experienced numbness, tingling, and weakness during and after service. It is his belief that he developed peripheral neuropathy as a result of his exposure to jet fuel. At a July 2015 neurology consult, a neurologic examination found normal results. His gait was narrow-based with normal tandem, heel and toe walking. His reflex scores were normal and symmetric throughout. At his August 2015 VA examination, the Veteran told the examiner that he experienced numbness and tingling in both hands and feet since the mid-1990s. He did not recall seeking medical attention for it earlier. He described his symptoms such as numbness like pins and needles in both hands and feet. Upon examination, the examiner found that the Veteran did not have any symptoms attributable to any peripheral nerve conditions. A muscle strength test showed normal strength in his arms and legs. He scored 5/5 in his knee extension, ankle plantar flexion, and ankle dorsiflexion. He demonstrated normal reflexes in his knees and ankles. A sensory examination showed normal results in his upper anterior thighs, knees, lower leg and ankle, feet and toes. His gait was normal and he demonstrated no radicular issues. The Board finds that other than the Veteran’s own statements, the record does not contain any competent objective evidence that indicates a current diagnosis of neuropathy of the lower extremities. While the Veteran is competent to report symptoms, he is not competent to provide a diagnosis, as he lacks medical knowledge and experience. Barr, 21 Vet. App. 303. Thus, the Board places greater probative weight to the August 2015 VA examination report, as well as VA treatment records. Accordingly, in the absence of a current peripheral neuropathy disability of the lower extremities, service connection cannot be awarded. In the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a current disability, entitlement to service connection is not warranted. See Brammer, 3 Vet. App. 223 at 225. Increased Ratings By way of history, the Veteran was granted service connection for migraines by a November 2015 rating decision, at a noncompensable rating, effective November 28, 2013. The Veteran contends that he is entitled to compensable rating for his migraines. Diagnostic Code 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable (0 percent disabling). Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100. In his November 2014 statement, the Veteran indicated that since his in-service head injury, he has experienced headaches, dizziness, concentration problems, and become easily distracted. At his August 2015 VA examination, the Veteran stated that he was evaluated after the in-service assault incident in 1994. He was evaluated by his private medical provider, Dr. Birk, at the Community Memorial Hospital Oconto, Wisconsin. He reported to having headaches 2 to 3 times a week, that started at the side of the head, and radiated around the entire head. He reported experiencing pain, nausea, vomiting, sensitivity to light and sound, lasting 1 to 2 hours. He stated that he uses Excedrin and ear plugs to help with pain. While acknowledging the Veteran’s complaints, the VA examiner found that the Veteran did not have characteristic prostrating attacks of migraine headaches. The Veteran contends that his service-connected migraines are more disabling than currently evaluated. The record evidence does not support his assertions. It shows instead that, although he continues to complain of migraine headaches, they are manifested by, at worst, less frequent attacks of migraine pain. The Board notes that the Veteran also reported at his August 2015 VA examination that his migraines do not affect his ability to work. While the Veteran does report headaches and the use of medication to treat them, there is no indication that the Veteran experiences migraines with at least characteristic prostrating attacks averaging one in 2 months over the past several months, as required under a 10 percent rating. Thus, the Board finds that the criteria for an initial compensable rating for migraines have not been met. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel