Citation Nr: 20044701 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 18-13 180 DATE: July 6, 2020 ORDER Entitlement to service connection for traumatic brain injury or postconcussion syndrome is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of residuals of a TBI, and his headaches and psychiatric impairment are already service-connected. CONCLUSION OF LAW The criteria for entitlement to service connection for traumatic brain injury or postconcussion syndrome have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1998 to May 2001 and from February 2003 to July 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran appealed a reduction from 20 percent to 10 percent disability rating for his service-connected fibromyalgia. He perfected that appeal, and, in an October 2018 rating decision, the RO granted a 40 percent rating effective March 2017. As a result of this decision, any reduction in rating was replaced with an increase. As the October 2018 decision informed the Veteran, this grant was the maximum benefit available under the diagnostic code and fully resolved his appeal. Therefore, this issue is no longer before the Board. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104(d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81(Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149(2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Generally, 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 Veteran contends that he has a traumatic brain injury (TBI) as a result of the fall he suffered during service. He asserts that he has “problems remembering and focusing,” and “a stabbing pain on the left side of [his] brain.” See March 2018 Form 9; see also August 2017 notice of disagreement. The Veteran’s service records establish that the Veteran did indeed suffer a concussion while in service. They show that on February 18, 2004, the Veteran fell off a fuel truck, and he was unconscious for up to 15 minutes. When the Veteran woke up, he was confused at first, but was lucid and complained of some scalp, neck and shoulder pain on his right side. See February 18, 2004 service treatment records. The Veteran was diagnosed with a “cerebral concussion” and spent two days at the hospital, where a CT scan and cervical scan were normal, and no neurological deficits were recorded. Id. Additionally, the Veteran’s two-week follow-up appointment record shows he was assessed with “post-concussion headaches and cervical strain” after he self-reported having head and neck pain, but some “headache free periods in the mornings.” See February 26, 2004 service treatment records. In May 2004, the Veteran sought treatment for increased headaches. He reported “throbbing pain in the front and right side of his head,” stating that he felt dizzy and nauseous at times. The physician found all the Veteran’s cognitive, motor, cerebellar, and pathological reflexes were within normal limits/intact, and issued no new diagnosis or medication. See May 3, 2004 service treatment record. The Veteran’s service treatment records do not indicate that he underwent a medical examination prior to his February 2006 discharge from service. However, in his August 2005 Retention Exam, the Veteran self-reported he had headaches from the fall. See August 2005 Report of Medical History. Further, in October 2006, the Veteran completed an annual medical certificate which also reported constant headaches since the fall in Kuwait; however, just four months prior, in June 2006, he had completed the same medical certificate signing off that he had no medical concerns. See October 2006 Annual Medical Certificate; see also June 2006 Annual Medical Certificate. In 2009, the Veteran had a VA neurology consult for recurring headaches. During the consult, the Veteran reported that “his headaches ‘come and go’ (Once every other week).” That his pain “lasted an hour or two,” and that “he does not have to leave work because of the headaches.” See December 2009 VA Neurology consult. The Veteran further reported he treated his headaches with over the counter Motrin. The Veteran’s MRI brain scan was generally within normal limits (WNL). The neurologist found all cognitive, motor, cerebellar, and pathological reflexes within normal limits/intact as well. Id. In June 2010, the Veteran reported to a physician that his headaches had started while he was serving in Bosnia since September 1999. See June 2010 Compensation and Pension Exam. During this exam, he stated that his headaches started back then and had gotten worse. He mentioned the concussion in 2004 but stated “the headaches were always there.” The Veteran claimed they have gotten worse since 2007, “feel like a stabbing pain on the top of his head or sometimes it involves the left eye and left side of his face.” He reported he gets these headaches “[a]bout once every other week,” and they are “so bad that he has to take either naproxen or ibuprofen.” However, he has never had to leave work due to his headaches. Id. The Board considered the Veteran’s assertion that he has experienced chronic headaches and other residual symptomatology since the February 2004 in-service fall. However, the Veteran is already service-connected for headaches as part of his constellation of symptoms due to fibromyalgia. In his VA Form 9, he asserted he began experiencing depression immediately after the fall, as well as memory loss. However, he is service-connected for PTSD/depressive disorder, and VA’s rating criteria for psychiatric conditions includes memory impairment. Therefore, the symptoms/conditions the Veteran asserts are linked to the TBI are already service-connected and compensated. The question at hand, then, is whether he has any other symptoms due to the in-service TBI. In May 2017, the Veteran underwent an initial evaluation at the VA to determine if the Veteran had any diagnosable residuals of a TBI, and if so, whether it was connected to his fall in service. Among the relevant evidence, the examiner notated the detailed history of the accident, as mentioned supra; a January 2009 diagnosis of obstructive sleep apnea (OSA), and another MRI of the frontal lobes in August 2009 that was generally WNL. The examiner also administered a cognitive exam (MoCA) on which the Veteran scored a 24/30. The examiner explained WNL results for this cognitive exam are greater than 25; however, he found these results to be inconsistent with the “adequate functioning of a police officer for the last 10 years.” The exam reflected no TBI residual diagnosis. Therefore, the examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He explained that there was “minimal evidence of any subsequent dysfunction of consequence inconsistent with job performance the last ten years.” See May 2017 Compensation & Pension Exam. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The May 2017 examiner’s opinion is probative because it is based on an accurate medical history, was well-reasoned and articulated, and was based upon the examiner’s medical knowledge and expertise. The examiner considered the 2009 VA records/evaluations, which resulted in diagnosis of postconcussion syndrome, but found there was minimal evidence the Veteran’s had any dysfunction of consequence to conclude he has residuals of a TBI. It is possible that in 2009 he had such symptoms, but they had resolved or stabilized by 2017, since the VA examiner did rely on current testing and current functioning. However, the 2009 records would not be sufficient to establish a current disability, since this claim was filed in 2017. The Board recognizes that the Veteran believes he suffered a serious concussion which resulted in a TBI. Although lay persons are competent to provide opinions on some medical issues, the Veteran is not competent to diagnose himself with a TBI. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Because a TBI is not diagnosed by unique and readily identifiable features, a TBI does not have a simple identification that a layperson is competent to make. While he certainly had a concussion during service, the question is whether he has any residual disability from that injury, and a qualified medical opinion is required to link the Veteran’s symptoms or disability to that injury. The Veteran does not possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the statements of the Veteran do not constitute competent medical evidence. Consequently, the Board gives more probative weight to the competent medical evidence. Therefore, the medical evidence and the negative nexus opinion outweigh the Veteran's statements that he has residuals of a TBI, and the preponderance of the evidence is against the claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mireya Martinez 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.