Citation Nr: 19153752 Decision Date: 07/11/19 Archive Date: 07/11/19 DOCKET NO. 16-57 508 DATE: July 11, 2019 ORDER Entitlement to service connection for traumatic brain injury (TBI), also claimed as multiple concussions is denied. FINDING OF FACT The evidence is insufficient to show that the Veteran has a TBI or residuals of multiple concussions during the appeal period. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of TBI, also claimed as multiple concussions, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 2003 to March 2009. He is in receipt of the Combat Infantryman Badge and several other medals and awards. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). For certain chronic disorders, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, as did the Veteran in this appeal, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Section 1154(b) of the United States Code establishes an event and injury during service does not end the matter. The provision does not mean that a grant of service connection is presumed for veterans who were injured in combat. Section 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disability causally to the current disorder. Caluza v. Brown, 7 Vet. App. 498, 507 (1995); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). 1. Entitlement to service connection for traumatic brain injury (TBI), also claimed as multiple concussions The threshold consideration for any service connection claim is the existence of a current disability. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Thus, the initial question for the Board is whether the Veteran has a current disability of TBI or residuals from multiple concussions. Based on the competent medical evidence discussed below, no current disability is shown, and service connection is therefore not warranted. Service treatment records and post-service VA treatment records are highly persuasive in this regard. The Veteran was seen in September 2007 for left knee pain, June 2008 for a left calf mass with insidious onset, July 2008 for right elbow pain, and August 2008 for left shoulder and neck pain. These incidents show a propensity to seek medical assistance for injuries, yet there is no record of treatment for or symptoms associated with multiple concussions or a TBI (e.g. headaches, dizziness, etc.) Periodic health assessments completed for the Army Reserves in November 2009, February 2012, and January 2013 all show the Veteran denied frequent headaches. A January 2013 periodic health assessment found the Veteran physically fit for retention and able to deploy to an austere environment within the next six months. There was no indication he had residuals of multiple concussions or any issues associated with a TBI. The Veteran was afforded a VA TBI examination in September 2016. He described several events in service where he was reportedly exposed to multiple explosions/blasts. However, the examiner concluded the Veteran does not have a TBI or any residuals of a TBI. The examiner reviewed the Veteran’s medical history, including his reported history of sustaining two blasts while deployed in 2005. The examiner noted that although the Veteran’s descriptions of his blast events and injuries were consistent with a TBI event, upon examination, he did not have any objective evidence to meet the criteria for a diagnosis of TBI. The medical records provided also did not support or note any treatment, complaints of, or a diagnosis of TBI. The Veteran asserts that his TBI incidents were not documented in service because he did not have the luxury to utilize a hospital or aid station. He was a 40-minute Blackhawk ride from the nearest hospital or aid station and relied on line medics to patch him up quickly, which is why his TBI incidents from IED explosions are not of record. He also indicated he received treatment from a hospital at Fort Gordon and did not know why those are not in his records. See August 2015 notice of disagreement (NOD). In addition, the Veteran has reported that the examining official told him he had a TBI at the conclusion of the examination. See November 2016 VA Form 9. While the Veteran believes he has a current diagnosis of TBI, or residuals from multiple concussions, he is not competent to provide a such diagnosis. The issue is medically complex, as it requires specialized medical knowledge to identify such a condition, which is part of internal physical and neuropsychological process. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent VA opinion. The Board is sympathetic to the Veteran’s claim and grateful for his combat service. Although he is competent and credible to report incidents such as IED explosions, a current medical diagnosis of TBI is necessary to grant service connection. Based on the cumulative evidence, the Board concludes that the Veteran does not have a current diagnosis of a TBI, or residuals of multiple concussions, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The preponderance of the evidence is against the claim and the benefit of the doubt standard of proof does not apply. 38 U.S.C. § 5107(b). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Barrett 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.