Citation Nr: 18153971 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-42 555 DATE: November 28, 2018 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to service connection for a neuropsychological disability is denied. Entitlement to service connection for a dental disability for VA compensation purposes, to include as secondary to service-connected seizure disability is denied. FINDINGS OF FACT 1. There is no objective medical evidence that the Veteran has a TBI or neuropsychological disability. 2. The Veteran does not have a dental disability for which service connection for compensation purposes may be granted. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for service connection for a neuropsychological disability have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for a dental disability have not been met. 38 U.S.C. §§ 1110, 1712 (2012); 38 C.F.R. §§ 3.303, 3.381, 4.150 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Coast Guard from June 1968 to May 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Service Connection – TBI and Neuropsychological Disability The Veteran has contended that he has a TBI and neuropsychological disability that are related to his active service, to include his service-connected seizure disability. Specifically, he asserted that his seizure disability was due to a head injury that he incurred while he was offloading supplies from a boat during “rolling seas” and onto a “massive” lifting crane. He stated that he was hit in the head by the crane’s “weighted” hook and ball and the impact “nearly knocked [him] overboard.” He has requested that VA provide an MRI to reveal the scar tissue associated with the claimed disabilities. Service treatment records (STRs) are silent for any in-service complaints of, treatment for, or diagnosis of a TBI or neuropsychological disability. However, STRs support that the Veteran was hospitalized for a seizure disability in October 1968. He reported that he was “hit on the head” four days prior. He recalled that he was not knocked unconscious, but that he had a headache for a short time. In a February 1969 rebuttal statement, the Veteran contended that he was wearing an old plastic helmet when he was hit in the head and not a steel helmet, as documented in the October 1968 hospital report. The February 1969 rebuttal described the Veteran in a small boat surrounded by rough seas when lighthouse personnel lost control of a crane’s block and tackle and it struck the Veteran while he was bouncing upwards in the boat. The statement alleged that the “hit on the head” was the major contributing factor for the Veteran’s seizure disability. In December 2014, the Veteran was afforded a VA TBI examination. Since service, the Veteran reported that he had been acting as if he did not have a filter and had no patience. He stated that there were times when he would unintentionally say “Get the f… out of the way” instead of “excuse me.” He explained that his “brain starts clicking, eyes get weird, and his mouth starts rapidly moving up and down” when he was around too many people. Those symptoms signaled to him that he was going to have a seizure so he would leave. The examiner concluded that the Veteran did not have and never had a TBI or any residuals of a TBI, to include any subjective symptoms or any mental, physical, or neurological conditions. Additionally, the examiner opined that it was less likely as not that the Veteran had a diagnosis of a TBI that was incurred in or caused by service. The examiner stated that the STRs indicated that witnesses observed the Veteran have an epileptic seizure with no head injury prior to the event. The examiner noted that the Veteran was reading a book when they witnessed the Veteran seize up. He explained that the Veteran’s AOC experienced at the time was consistent with altered consciousness during a seizure episode and headaches could have also been attributed to a post-ictal state. He added that the Veteran had difficulty breathing while he was reading, which was consistent with the event. He concluded that the Veteran’s service history and injury was inconsistent with a head injury resulting in a TBI. The Veteran underwent neuropsychological testing in June 2015. A VA clinical neuropsychologist found no cognitive impairment. The December 2014 VA examiner provided a VA addendum medical opinion in March 2016. The examiner opined that the Veteran did not have a TBI that was at least as likely as not proximately due to or the result of epilepsy medication (Phenobarbital). He stated that based on the December 2014 VA examination findings, the Veteran did not have a confirmed diagnosis of a TBI that could be related to complaints of an in-service head injury in October 1968. He added that neuropsychological testing in June 2015 noted a “classification of no cognitive impairment NCI is most appropriate at this time.” Further, he stated that there was no direct association between Phenobarbital and the occurrence of symptoms suggestive of a TBI and/or diagnosis of a TBI. He explained that Phenobarbital was a medication commonly used for control of seizures. In June 2016, the Veteran was afforded a VA psychiatric examination. The examiner concluded that the Veteran did not have and had never been diagnosed with a mental disorder. Further, the examiner stated that she was unable to render a medical opinion regarding the relationship of the Veteran’s seizure disability to current memory problems. She explained that the Veteran did not reveal any significant impairment on measures given in the current interview that supported a diagnosis of a neuropsychological condition or a neurocognitive disorder. She determined that the Veteran required a follow-up evaluation with a neurologist to clarify the relationship between his diagnosed seizure disability and his reported memory and behavioral problems. The United States Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Here, competent medical evidence indicates that the Veteran does not have the disabilities for which service connection is sought. The Board acknowledges the Veteran’s lay statements in which he has asserted that the VA examinations were inadequate because the VA examiner did not provide an MRI to reveal scar tissue damage. Certainly, the Veteran can attest to factual matters of which he has first-hand knowledge, such as his being hit in the head by a crane’s block and tackle, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran is not competent to determine that he has brain tissue damage from his head injury, as this particular inquiry is within the province of trained medical professionals; it goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the question of whether an MRI is required is a medical determination, and, therefore, it was more appropriately left to the examiner’s discretion. In addition, the Board finds that the examiners have considered all procurable and assembled data. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As such, the VA examinations and medical opinions of record are adequate and, thus, the Veteran’s lay assertion does not trigger VA’s duty to assist to provide a new examination. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a TBI and neuropsychological disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Dental Disability The Veteran has contended that he has a dental disability that is secondarily-related to his service-connected seizure disability. Specifically, he asserted that he was prescribed Dilantin to treat his seizure disability for several years and that his teeth have begun to disintegrate. He stated that there is evidence that Dilantin results in bone and tooth loss, and gum disease. Under current legal authority, compensation benefits are only available for certain types of dental and oral conditions. 38 C.F.R. § 4.150. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. STRs are silent for any dental disability subject to compensation. There is no evidence of dental trauma nor has the Veteran suggested that he has sustained a combat wound or other in-service dental trauma. In June 2016, the Veteran was afforded a VA examination. The examiner determined that the Veteran’s loss of teeth was associated with periodontal disease. He noted that the Veteran lost his teeth after normal extraction. Additionally, the examiner found that the Veteran did not have swollen gums, which would be evident in someone taking Dilantin. He opined that the Veteran’s dental disability was less likely than not proximately due to or the result of the Veteran’s service-connected seizure disability. He explained that Dilantin caused gingival hyperplasia, or growth of the gums, and went away once the medication was discontinued. He noted that the Veteran reported discontinuing Dilantin in 1974 and that his gum symptoms started in 2000. He added that broken or damaged teeth were not a known side effect of Dilantin. He concluded that it was unlikely that the epilepsy medication caused the Veteran’s periodontal disease. In sum, the Veteran seeks service connection for a dental disability that cannot be considered for compensation purposes, instead the disability can only be considered service-connected for the purpose of establishing eligibility for dental treatment. Thus, the claim for service connection for compensation purposes, must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a dental disability for compensation purposes is not warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel