Citation Nr: 20007795 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-03 643 DATE: January 30, 2020 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is granted. FINDING OF FACT The Veteran’s residuals of TBI are related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a traumatic brain injury (TBI) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Air Force from July 2005 to September 2014 with subsequent Air Force Reserve service. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In December 2019, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2019). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with his claim decided herein are moot. 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 (2012); 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). In addition, service connection for certain chronic diseases, including residuals of TBI, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2019); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that he had a mild traumatic brain injury in service. During the December 2019 Board hearing, the Veteran explained he hit his head in service and began experiencing symptoms in service that have continued since that time. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An October 2016 polytrauma VA treatment record indicated the Veteran experienced a TBI during service. The VA treatment provider noted residuals including headaches, visual symptoms, and psychiatric symptoms. A September 2017 VA neuropsychological examination found that the testing results showed cognitive weaknesses and impairments suggesting residuals of a TBI. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). During the December 2019 Board hearing, the Veteran explained he had two possible TBIs while deployed to Afghanistan. In the first incident, the Veteran stated he knocked himself unconscious under a vehicle. The second incident, he got too close to a mortar explosion. The Veteran noted he did not seek medical attention. In a December 2016 buddy statement, a fellow service member stated that he witnessed the Veteran’s injury. The fellow service member noted the load team chief called the Veteran, but he was initially unresponsive. The load team chief gave the Veteran some water because he assumed he passed out from dehydration. The service member noted the Veteran reported to his superiors that he hit his head hard but was not directed to seek any medical attention. During the December 2019 Board hearing, the Veteran confirmed he did not seek medical attention. He stated he had symptoms of headaches and memory problems during service. The Veteran noted he began VA mental health treatment shortly after service and his mental health treatment providers recommended a TBI evaluation. The Veteran’s service treatment records (STRs) included a July 2006 post deployment questionnaire. The Veteran reported he experienced dizziness, lightheadedness, tinnitus, and headaches during deployment. Additionally, the Veteran noted he was taking Ambien during his deployment. A June 2008 STR indicated the Veteran reported several symptoms consistent with depression which began following deployment. A July 2008 STR showed the Veteran reported dizziness. In an August 2008 STR the Veteran reported impaired concentration and the treatment provider noted they observed impaired concentration. In October 2013 an STR showed the Veteran received a CT head scan for atypical headaches. A November 2013 STR showed a provisional diagnosis of headaches. The Board affords significant weight to the Veteran’s statements and the December 2016 buddy statement regarding the Veteran’s in-service injury. First, the Veteran and fellow service member are competent to report as to factual matters of which he or she has first-hand knowledge, to include events witnessed and experienced during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Second, the Board finds the Veteran’s statements credible as they are consistent with the circumstances of his service. See 38 U.S.C. § 1154 (2012); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Lastly, the Veteran’s STRs clearly document persistent symptoms following his first deployment. Accordingly, the second element of service connection is met. Third, the Board finds that the evidence of record supports a finding that the residuals of TBI are related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). During the October 2016 polytrauma VA treatment the Veteran’s treatment provider diagnosed residuals of TBI. The treatment provider opined that based on the history of injury, and course of clinical symptoms, the Veteran did sustain a TBI during his OEF deployment. The VA treatment provider explained that in their clinical judgment, the current clinical symptom presentation is most consistent with a combination of OEF deployment related TBI and a behavioral health condition. The Board affords significant probative weight to the VA treatment opinion. First, the VA treatment provider is the Attending Physician for the polytrauma unit and thus has substantial expertise. Second, the VA treatment provider fully considered the Veteran’s statements regarding the nature of his deployment. Third, the VA treatment provider noted the Veteran’s past medical history in-service and immediately following service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). There are no contrary medical opinions of record and thus the probative medical evidence of record demonstrates TBI residuals due to active service. Accordingly, service connection is granted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, Associate 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.