Citation Nr: 21001630 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-15 591 DATE: January 11, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a TBI at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a TBI disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1990 to March 1991 and from August 1997 to March 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Entitlement to service connection for a TBI The Veteran contends that he is entitled to service connection for TBI because the claimed disability is the result of active service. More specifically, the Veteran asserts that he sustained a TBI in a November 1997 motor vehicle accident that occurred during while serving in Bosnia. Medical records show that the Veteran is currently being treated for headaches, which he associates with the claimed TBI. Service connection may be established for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. The first requirement for any service connection claim is evidence of the presence of the claimed disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board has previously concluded that it is more likely than not that the Veteran was in a car accident while serving in Bosnia. In a September 2009 medical treatment record, an attending physician indicated that the Veteran had a “mtbi” with short term memory impairment and post concussive headaches. The Board notes that finding was not made by a physiatrist, psychiatrist, neurologist, or neurosurgeon, and therefore it is found to be of little probative value. At a March 2013 VA examination, the examiner found that the cause and effect between the head injury that the Veteran sustained during service in Bosnia in November 1997 and current neurological complaints of headaches, dizziness, tinnitus, and short-term memory impairment could not be established based on current research articles. The examiner explained that the Veteran’s current symptoms may most likely be associated with post-traumatic stress disorder (PTSD). The Board notes that the Veteran is service-connected for PTSD. In a December 2019 VA examination, the examiner found that the Veteran did not have a diagnosis of a TBI. The Veteran reported the November 1967 motor vehicle accident and that several years later he was diagnosed with a nasal fracture and deviated septum. The Veteran reported multiple symptoms including neck pain, congestion, headaches, visual complaints, sensitivity to light, dental pain, memory deficits, tinnitus, sleep apnea and irritability. The examiner noted that none of the Veteran’s residual conditions are attributable to a TBI. The examiner highlighted that although the Veteran reports a history of facial trauma and head injury in 1997, contemporaneous documentation does not support a history of TBI. There is no documentation of medical notes in 1997 which support a history of TBI. There was no clear history of loss of consciousness in 1997. The examiner noted the March 2001 medical assessment was without documentation consistent with head injury or memory and cognitive deficits. Based on the information, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In an September 2020 addendum opinion, the examiner was asked to reconcile the December 2019 finding of no TBI, and a September 2009 finding of “mtbi.” The examiner found that there is no documentation of TBI diagnosis or treatment for approximately ten years following the motor vehicle accident in service. “The Northport VA treatment records were reviewed, and although a report dated 9/8/09 suggests an organic basis for the veteran’s complaints, overall documentation does not clearly support an association between the veteran’s reported symptoms and the reported incident in 1997.” The Veteran may report symptoms that he has. However, while the Veteran believes he has a current diagnosis of TBI, he is not competent to provide a diagnosis as that requires medical training. The issue is medically complex, as it requires specialized medical education and the ability to interpret diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board finds that the Veteran’s statements as to etiology of current symptoms are not competent. The Board assigns more probative weight to the competent medical evidence. The Board finds that the September 2009 finding of “mtbi” by a treatment provide who is not on the qualified specialists to examine TBI is less persuasive than the subsequent VA examinations which found no current residuals of any TBI or that a diagnosis of TBI was warranted. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran has any current TBI or residuals of TBI. Therefore, in the absence of the claimed disability, the claim for service connection must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.