Citation Nr: A20008181 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 191030-42330 DATE: May 11, 2020 ORDER Service connection for traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had residuals of a TBI at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 26, 2019, rating decision, which was based upon an April 2019 request for Higher Level Review of an April 1, 2019, RAMP (Rapid Appeals Modernization Program) rating decision after the Veteran had selected the Supplemental Claim lane. In appealing to the Board, the Veteran selected the Direct Review lane. See VA Form 10182. That being the case, the Board may consider only the evidence of record at the time of the April 1, 2019, rating decision. Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Veteran served on active duty from August 1984 to January 1993. 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). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. Entitlement to service connection for TBI. The Veteran seeks service connection for TBI. Specifically, in a June 2016 statement, he contended that secondary to TBI he had neck pain, head will not fully rotate, right shoulder pain, left shoulder pain, costochondral joints right sternum, rib pain, back pain, sleep apnea, depression, anxiety, and memory loss. The Board notes that the Regional Office made the following favorable findings: statements in support of claim from Dr. C.N.B., received June 2016 and November 2017, which discussed the Veteran’s symptoms of TBI and multiple sclerosis. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. § 3.303(a), (d); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). It is not in dispute that the Veteran experiences the symptoms that he has attributed in his claim to TBI. It is not in dispute that he had an in-service head injury. It is not in dispute that symptoms of multiple sclerosis manifested during service for which he is service-connected. Indeed, the Veteran is service-connected for multiple sclerosis with obstructive sleep apnea, evaluated as 50 percent disabling; unspecified anxiety disorder associated with multiple sclerosis, evaluated as 30 percent disabling; lumbosacral strain (claimed as back pain secondary to TBI and multiple sclerosis), evaluated as 20 percent disabling; neurogenic bladder associated with multiple sclerosis, evaluated as 20 percent disabling; left upper extremity weakness secondary to multiple sclerosis, evaluated as 20 percent disabling; right upper extremity weakness secondary to multiple sclerosis, evaluated as 20 percent disabling; cervical strain (claimed as neck pain secondary to TBI and head will not turn), evaluated as 10 percent disabling; left eyelid droop, evaluated as 10 percent disabling; neurogenic bowel movement associated with multiple sclerosis, evaluated as 10 percent disabling; right lower extremity weakness secondary to multiple sclerosis, evaluated as 10 percent disabling; left lower extremity weakness secondary to multiple sclerosis, evaluated as 10 percent disabling; posttraumatic headaches (claimed as TBI), evaluated as noncompensable; and erectile dysfunction associated with multiple sclerosis, evaluated as noncompensable. The Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(k) and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran’s service treatment records show that in March 1992 he was involved in a motor vehicle accident during which his forehead hit the windshield. He reported losing consciousness and being woken up by a paramedic. It was medically questioned whether he lost consciousness because he was asleep in the passenger seat and unrestrained at the time of the accident. Without the emergency room record, it was presumed by his command that he lost consciousness for more than five minutes but less than an hour. The Veteran’s service and post-service treatment records are silent for a diagnosis of TBI. In a February 2016 memorandum, Dr. C.N.B., a neuro-radiologist, provided a private medical opinion based upon a review of the Veteran’s claims file. It was noted that the Veteran had an in-service motor vehicle accident and that he had had headaches and dizziness ever since. It was stated: “He has psychological imbalances, which are likely due to combinations of his service time MS and or service time TBI.” Dr. C.N.B. correlated the Veteran’s symptoms with the disability rating criteria under Diagnostic Code 8045 (residuals of TBI). It was stated that the Veteran “had serious TBI in service.” It was opined “to at least the 90% level of probability” that the Veteran’s “current TBI illnesses” were all secondary to his in-service injury. Among the reasons provided, it was stated that “[h]is records do not support another more plausible etiology for his TBI or other risk factors (in or out of service) to explain his problems other than his service time experiences with injuries.” In January 2017, the Veteran was afforded an in-person VA examination for TBI, performed by Dr. G.W.Z, a psychiatrist, during which it was indicated that the Veteran did not have a diagnosis of TBI. The Veteran reported the details of the 1992 in-service accident. He reported that, “to date, the condition has not been formally diagnosed.” He reported his symptoms as: headache, poor short-term memory, stuttering, slurring, depression, and anxiety. It was noted that he had been diagnosed with multiple sclerosis in 2008 and with sleep apnea in March 2016. It was noted that with CPAP he was sleeping better. The examiner indicated these as three or more subjective symptoms for TBI. It was indicated that the Veteran had been exposed to one blast in 1991, which was not severe enough to knock him down or cause injury. The examiner recorded that there was a complaint of mild memory loss; judgment was normal; social interaction was routinely appropriate; he was always oriented to person, time, place, and situation; motor activity was normal; and visual spatial orientation was mildly impaired. It was indicated that there were one or more neurobehavioral effects that did not interfere with workplace or social interaction. It was indicated that comprehension or expression, or both, of either spoken or written language was only occasionally impaired. It was noted he could communicate complex ideas. Consciousness was recorded as normal. It was noted that a 2016 MRI revealed “white matter lesions.” The examiner stated: “His symptoms including cognitive declines are better explained by his multiple sclerosis.” It was explained that the timeline of decline in memory and development of other symptoms was consistent with the remitting and relapsing course of his multiple sclerosis. It was concluded that, for TBI, there was no diagnosis because there was no pathology upon which to render a diagnosis. For these reasons, the examiner opined that a TBI was less likely than not incurred in or caused by the in-service motor vehicle accident. It was restated that the Veteran’s symptoms were better explained by his diagnosed multiple sclerosis. In February 2017, Dr. E.R.P., a VA neurologist/DMA-TBI certified, provided a medical opinion based solely upon a medical records review. It was opined that the condition claimed was at least as likely as not incurred in or caused by the in-service event. It was explained: “Veteran sustained head injury in service during MVA when his head hit the windshield. He was evaluated and treated. He developed headaches as well as other symptoms after this injury. Impossible to separate the current symptoms of memory difficulties, visual spatial orientation, subjective, neurobehavioral effects and communication as caused by TBI or MS. Both conditions can equally cause these symptoms.” In a November 2017 memorandum in support of the Veteran’s increased ratings claims, Dr. C.N.B. stated that the Veteran had both a TBI and multiple sclerosis. It was stated: “Often, it is impossible to sort out the difference between TBI and MS symptoms.” In a February 2019 appellate brief, the Veteran’s attorney contended that both the January 2017 VA medical opinion and Dr. C.N.B.’s opinion found a positive nexus to service such that service connection for TBI was warranted. It was stated that “the examiner noted earlier that [the Veteran] reported that he participated in combat activity and also acknowledged [the Veteran] was exposed to a blast in service which was severe enough to cause injury.” It was contended that this contradicted the opinion that the Veteran did not have pathology upon which to diagnose a TBI. It was concluded: “Not only does the contradictory statement demonstrate that the examiner’s conclusion is based upon an inaccurate statement of the facts but also establishes a nexus between his claimed condition and service.” As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). This involves weighing conflicting medical opinions, and the Board may place greater weight on one physician’s opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board notes that the Veteran, while entirely competent to report his symptoms, is not competent to proffer an opinion as to diagnoses or the etiologies of his disabilities. Such opinions pertaining to TBI and multiple sclerosis require specific medical training and are beyond the competency of a lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contentions in these regards to be of no probative value. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Consequently, the statements offered by the Veteran in support of his claims are not competent evidence to support any specific diagnosis or etiology of a disability, and the Board gives more probative weight to the competent medical evidence. The medical evidence is consistent that the Veteran experiences a cohort of symptoms that could be attributed to either TBI or multiple sclerosis. The January 2017 VA examiner concluded that the Veteran’s symptoms were more representative of multiple sclerosis than TBI. The Veteran acknowledged during the VA examination that TBI had never been diagnosed. The Board notes that there are no medical records from treatment providers who diagnosed TBI. The Board finds the January 2017 VA medical examiner’s opinion to be the most probative as to whether the Veteran has a current diagnosis of TBI as there was an in-person examination along with claims file review. In the November 2017 memorandum, Dr. C.N.B. stated that the Veteran had both TBI and multiple sclerosis without explaining a rationale for the diagnosis of a TBI other than the fact that the Veteran had had an in-service head injury. Competency of evidence differs from credibility and weight. “The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.” Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Layno, 6 Vet. App. at 469; Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating, “Although interest may affect the credibility of testimony, it does not affect competency to testify.”). Evidence is credible when it is internally consistent and consistent with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see, e.g., Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, “[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.” Caluza, 7 Vet. App. at 511. As there is no evidence that Dr. C.N.B. had a treatment relationship with the Veteran, the Board presumes that Dr. C.N.B. was a paid expert witness who, at best, concluded that the Veteran’s symptoms of multiple sclerosis also supported a diagnosis of TBI. In other words, this was a diagnosis based upon speculation in the context of bias. Cf. Jones v. Shinseki, 23 Vet. App. 382 (2010). Hence, the Board assigns little probative value to Dr. C.N.B.’s opinions. Similarly, the Board assigns little probative weight to Dr. E.R.P.’s February 2017 medical opinion because it is equally speculative. It was stated that it was impossible to separate out the Veteran’s current symptoms of multiple sclerosis from a TBI. While the development of headaches after the accident were specified as supportive of TBI, Dr. E.R.P. vaguely relied upon “as well as other symptoms after this injury” to find there was a current TBI. This does not inform the Board as to a medical basis supporting a current diagnosis of TBI. Turning to the Veteran’s attorney’s February 2019 contentions, the Board finds them to be based upon an inaccurate statement as to the content of the January 2017 VA examination report and to be illogical. Contrary to the contention, the report of the January 2017 VA examination shows that the noted 1991 blast to which the Veteran was exposed was not severe enough to knock him down or cause injury. Furthermore, the Veteran has not contended that it was that incident that caused his claimed TBI. Hence, there is no incompleteness or inaccuracy in the facts used by the examiner to form the medical opinion. The Board finds no logic to the contention that the VA examiner’s opinion established a nexus between the Veteran’s claimed TBI and service. The Board notes that when a claim is made, the Veteran seeks service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this case, as to the TBI claim, the Veteran sought service connection for the symptoms of neck pain, head will not fully rotate, right shoulder pain, left shoulder pain, costochondral joints right sternum, rib pain, back pain, sleep apnea, depression, anxiety, and memory loss. As stated in the beginning, the Veteran has been compensated for the symptoms of disability he claimed as related to a TBI as symptoms of his service-connected multiple sclerosis. As there is a prohibition against pyramiding, the Veteran may be compensated only once for the symptoms of a given disability. See 38 C.F.R. § 4.14. Hence, even if the Veteran had a clear diagnosis of TBI based upon something more than speculative after-the-fact records review in addition to his diagnosed multiple sclerosis, he would not be compensated twice for the same symptoms. Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current diagnosis of TBI; rather, based upon the same symptomatology, he has a current disability of multiple sclerosis, which is service connected. To find that the Veteran has a current diagnosis of TBI would be speculation, and the law prohibits that service connection may be based upon resort to speculation. 38 C.F.R. § 3.102; see Obert v. Brown, 5 Vet. App. 30, 33 (1993). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1996) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, although the second Shedden element is met, the first and third elements are not, and the claim for service connection for TBI fails. (Continued on next page.) Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.