Citation Nr: 19136334 Decision Date: 05/10/19 Archive Date: 05/10/19 DOCKET NO. 15-10 558 DATE: May 10, 2019 ORDER Entitlement to service connection for traumatic brain injury (TBI) is granted. Entitlement to service connection for a mood disorder is granted. FINDINGS OF FACT 1. The Veteran’s currently diagnosed TBI is related to active service. 2. The Veteran’s currently diagnosed mood disorder is etiologically related to the newly service-connected TBI. CONCLUSIONS OF LAW 1. The currently diagnosed TBI was incurred as a result of active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (2018). 2. The currently diagnosed mood disorder was caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to February 1982. The Veteran testified before the undersigned at an August 2018 Video Conference hearing. The hearing transcript is of record. Service Connection 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C. 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Section 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2018); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), (citing Gilbert, 1 Vet. App. At 54). 1. Entitlement to service connection for traumatic brain injury (TBI) Service treatment records show a history of a head injury in August 1978 during military service, with reported concussion and blacking out for 10-15 minutes, with subsequent reported photo sensitivity to light, headaches and tinnitus. The Veteran specifically reported that he fell through a hatch 20-30 feet into the boiler room, landing on his back and hitting his head. Service treatment records actually note no loss of consciousness, but the Veteran reports being unconscious for an unknown period of time. An August 2011 VA examiner diagnosed the Veteran with a mild TBI with residual posttraumatic headaches, which he opined was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. In rendering his opinion, the examiner explained that the service treatment records document a head injury with residuals of headaches status post a fall during the Veteran’s military service, and the head injury meets the TBI criteria. Another VA opinion was submitted in February 2012. The examiner noted the duration and extend of altered consciousness following the Veteran’s in-service head injury in August 1978 was not documented and only reported by the Veteran, however, upon initial medical evaluation, which appeared to be within the first hour following the event, no alteration of consciousness remained. The examiner concluded that loss of consciousness was likely less than 30 minutes and definitely within the day of injury, alteration of consciousness and posttraumatic amnesia resolved, and no structural brain injury resulted. The examiner concluded that this description of events best fit the classification of mild TBI or concussion. He concluded further that the normal course of recovery should be complete after 33 years, and cognitive changes which are realized after 33 years cannot be linked to the in-service event without resorting to mere speculation. However, the examiner did not indicate whether there was additional evidence that would enable the necessary opinion to be provided. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Board finds that due to the indefinite nature of the examiner's opinion, it is inadequate and does not contain enough information upon which to base a decision. The medical evidence shows a current diagnosis of a TBI. As noted above, the Veteran sustained head trauma in service. Furthermore, both the August 2011 and February 2012 VA examiners concluded that the Veteran’s symptoms meet the criteria for TBI. The Board also notes that the Veteran has reported in statements, during VA examination and during his Board hearing, that he had symptoms of TBI during active military service, and that he has had continuing problems with symptoms of TBI since that time. These statements provide competent and credible evidence of TBI during active duty and a continuity of symptoms since. They are also buttressed by the August 2011 VA examiner opinion. There is evidence against the claim, inasmuch as the February 2012 VA examiner opined that the Veteran’s TBI residuals are not related to his in-service head injury. However, for the reasons noted above, the Board finds both the February 2012 examiner’s opinion inadequate for evaluation purposes. Thus, resolving reasonable doubt in the Veteran’s favor, service connection for TBI is warranted. 38 U.S.C. § 5107 (b) (2012). 2. Entitlement to service connection for depressive disorder, due to TBI The Veteran contends that his currently diagnosed mood disorder developed as a result of his TBI, which the Board is granting service connection for in this decision. The August 2011 VA examiner opined that the Veteran’s mood disorder was mainly related to his brain injury in the Navy. As noted above, in order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). (Continued on the next page)   The medical evidence of record shows that the Veteran has a currently diagnosed mood disorder, which he has reported is related to his TBI, which the Board is granting service connection for in this decision. Furthermore, a VA examiner has opined that his mood disorder is related to his newly service-connected TBI, which the Board is granting service connection for in this decision TBI. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's current mood disorder was caused or aggravated by his TBI, which the Board is granting service connection for in this decision. Thus, the Board finds that service connection for a mood disorder, on a secondary basis, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.310. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Yankey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.