Citation Nr: 20032913 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 16-00 525 DATE: May 12, 2020 ORDER Entitlement to service connection for traumatic brain injury (TBI) is denied. Entitlement to service connection for migraines is granted. FINDINGS OF FACT 1. The Veteran did not have traumatic brain injury (TBI). 2. Resolving all doubt in favor of the appellant, the Veteran’s migraine disability was related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for traumatic brain injury (TBI) have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for migraines have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1972 to July 1976. He died in October 2014. The appellant is the Veteran’s widow. The Veteran’s surviving spouse requested to be a substitute claimant for the claims that remained pending at the time of his death for the purpose of seeing the claims to completion. The Regional Office (RO) notified the appellant in November 2015 that she was approved as a valid substitute claimant for the Veteran as to the claims on appeal. See 5121A; 38 C.F.R. § 3.1010. The appellant requested a videoconference hearing before a Veterans Law Judge in her December 2015 substantive appeal (VA Form 9). However, in correspondence dated February 2020, the Veteran, through her representative, requested that her hearing request be withdrawn. As such, her hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e), 38 C.F.R. § 20.704 (e). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for traumatic brain injury (TBI). The appellant asserts that the Veteran had a TBI related to his active service. She specifically asserts that the Veteran’s service records support he suffered a head injury while in service which in turn supports that he had a traumatic brain injury. Service treatment records include a July 1976 service discharge medical report in which the Veteran endorsed he had a head injury. The Veteran further endorsed that in November 1972 he was hospitalized for a concussion received while playing football. A September 1974 and September 1975 treatment record reflects the Veterans reports of head trauma caused while playing football. Service treatment records contain no diagnosis or treatment for a TBI. Post-service treatment records similarly note only the Veteran’s reported history of head injury without diagnosis of a traumatic brain injury. A private May 2019 disability questionnaire specifically addressed the Veteran’s service treatment records which noted a concussion; however, the private examiner stated “there is no record of any chronic residuals of this concussion other than the chronic headache syndrome described…”. Additionally, the private examiner did not formally diagnose any TBI or find that a TBI had been diagnosed. The Board acknowledges that the Veteran was not been afforded a VA examination with respect to his claim for service connection for a TBI. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A VA medical opinion under the standards of McLendon is not warranted regarding the Veteran’s claim for service connection for TBI as there is simply no evidence of an indication of a current disability or persistent or recurrent symptoms of disability. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that TBI was manifested during service or a current diagnosis of a TBI has been demonstrated. As there is no diagnosis of a TBI, the Board concludes that the basic service connection criteria have not been met, and the only evidence in favor of such a relationship consists of the appellant’s assertions. Although the appellant has asserted that the Veteran had a TBI which was causally related to service, she is a lay person and does not have the requisite medical training or credentials to be able to diagnose a TBI. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). TBI is a disorder diagnosed primarily on symptoms, clinical findings and physiological testing. Thus, while the appellant and the Veteran are both competent to relate symptoms that the Veteran might have experienced at any time, neither is competent to diagnose a TBI because such a diagnosis requires specific medical knowledge and training. For these reasons, the appellant’s opinion that the Veteran had a TBI is of no probative value. Because TBI is not demonstrated in this case, the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for migraines. The appellant also asserts that Veteran’s migraines were related to his active service. The Veteran’s July 1976 service discharge medical report records his endorsement of frequent headaches. A February 1976 service examination noted the Veteran was in good health except for occasional headaches which were possibly vascular or migraine. Service treatment records consistently note the Veteran’s complaints of headaches throughout service. Post-service treatment records consistently reflect complaints and treatment of headaches as well as headache symptom management with prescription medication. The appellant submitted a private May 2019 disability questionnaire which diagnosed the Veteran with migraine and tension headaches. The private examiner also opined that the Veteran’s current migraine disability was related to his active service. As rationale, he stated the Veteran’s current migraine disability was a continuation and progression of the mixed headaches noted in his service treatment records. He further opined that for most individuals, headache symptoms do not require medical or pharmaceutical intervention; however, the Veteran’s need for this therapy throughout his active service and post-service reflected a connection between the in-service headaches and his diagnosed condition. The examiner alternatively opined that any head trauma documented in service treatment records and reported by the Veteran would likely cause his current headache symptoms. (Continued on next page) The Board finds that the May 2019 private opinion is probative as it is premised on a review of the Veteran’s post-service medical records, service treatment records, and supported by adequate rationale. Further, there is no contrary medical opinion of record. Therefore, the preponderance of the evidence as to whether the Veteran’s migraine disability was incurred in service weighs in favor of the Veteran. Accordingly, resolving reasonable doubt in the Veteran’s favor, service connection for migraines is warranted. 38 C.F.R. §§ 3.102, 3.303. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.