Citation Nr: 21002613 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-49 958A DATE: January 14, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s claimed TBI condition began during active service or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for traumatic brain injury have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Marine Corps from September 2006 to August 2011, to include service in Southwest Asia. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the claim for additional development including a VA opinion. See Remand BVA or CAVC received January 2019. The Veteran was afforded a new VA opinion in December 2019. Then in October 2020, the Veteran had a VA examination and opinion. See C&P Exam received December 2020 and October 2020. The Board also notes that a development letter was sent to the Veteran and VA records were obtained. See Subsequent Development Letter dated September 2019; CAPRI received October 2020. After a supplemental statement of the case (SSOC), the claim was returned to the Board. No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Board notes that no information was sent by the Veteran in response to the development letter dated in September 2019. The Veteran has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As to the remand, the Board finds that the foregoing reflects substantial compliance with the January 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will adjudicate the claim currently on appeal. The Veteran contends that he is entitled to service connection for a TBI. The Veteran alleges that the TBI occurred during his deployment in Iraq in 2009 and that the service treatment records have been lost. See Form 9. However, as outlined below, the preponderance of the evidence of record demonstrates that the claim of entitlement to service connection for TBI is not warranted. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, 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 evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence 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 VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. First, the Board considered whether any evidence supported that the Veteran had a TBI that began in service. In particular, the Veteran completed a post deployment form in April 2010 and did not report any TBI during deployment. See STR received March 2015. The Veteran did not report getting physically hurt during his deployment. He reported no fall or other event. The post deployment form included a TBI risk assessment. The assessment found no evidence of risk based on responses to the questions in the report. Id. Additionally, the Report of Medical History from separation did not discuss any symptoms related to a TBI. The Veteran did report symptoms related to his knee. See STR-Dental received April 2014; STR Medical received April 2014. In April 2012, after service, the Veteran had a mental health consultation. At that time, the Veteran reported that he had a violent concussion in June 2009, during deployment, but he denied loss of consciousness. He reported that it took him a week to get back on his feet. See CAPRI received May 2015. The Veteran reported poor sleep, easy frustration, flashbacks, numbness, and mild anxiety. Id. A mental status examination was performed. The Veteran was diagnosed with post-traumatic stress disorder (PTSD). The Veteran was also noted status post a concussion by history only. Id. In June 2012, the Veteran had a positive TBI screening. The Veteran was not yet diagnosed with a TBI. The screening suggested that the Veteran needed further consultation. See CAPRI received May 2015. The Veteran was referred for additional screening, for a probable TBI with mild long-term memory loss. Id. Afterward, the Veteran had a negative brain magnetic resonance imaging (MRI). Then in March 2013 the Veteran had a second TBI evaluation/consultation. He reported that he had only one episode of hitting his head during service. He was uncertain whether he lost consciousness. The Veteran was referred for some other testing; however, it does not appear that the Veteran was diagnosed with a current TBI. See CAPRI received May 2015. The March 2013 appointed stated that no follow-up was required with the TBI case manager afterwards. Id. Then in October 2020, a VA examiner completed a TBI Disability Benefits Questionnaire (DBQ). The doctor performed an in-person examination of the Veteran. The doctor found no evidence of a diagnosis of a TBI. See C&P Exam received October 2020. The Board recognizes that the Veteran might sincerely believe that he had a TBI during service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the medical expertise required to provide a competent opinion concerning the etiology of the disability at issue. Even if the Veteran had a singular traumatic event to his head while deployed, that does not mean he had a TBI. The diagnosis of a TBI is based on specific medical factors, which would require medical knowledge to determine. So, a TBI in service is not shown by any competent evidence of record. Next, the Board considered direct service-connection, but the evidence does not support that the Veteran has a current disability, or that the current disability is casually related to the event, injury, or disease during service. As to current disability, the record suggests, as discussed above, that the Veteran has no current diagnosis for a TBI. The Veteran has reported some symptoms associated with a TBI. However, the Veteran has also been diagnosed with and treated for PTSD. The Veteran had a VA examination in October 2020, and the VA examiner performed a full TBI DBQ examination. See C&P Exam received October 2020. The examination results were generally within normal limits. The examiner did not diagnose the Veteran with a TBI. Id. The Veteran reported that he was diagnosed with a TBI by VA treatment providers. However, as discussed above, the Veteran had a negative brain MRI. He had two TBI evaluations/consultations; however, it does not appear that the Veteran was diagnosed with a TBI. See CAPRI received May 2015. In October 2020, the Veteran had a TBI VA examination; however, the examiner did not diagnose the Veteran with a TBI. The examiner opined that the 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. See C&P Exam received October 2020. The examiner explained that the Veteran discussed being attacked by another Marine in 2009. The examiner stated that the Veteran’s records contained minimal notes to discuss the event and or to support the TBI. The examiner also pointed out that the Veteran’s history of anxiety or PTSD would explain his symptoms of sleep problems, irritability, concentration difficulties, and hypervigilance. Id. The Board notes that the Veteran is service connected for PTSD at 30 percent since August 24, 2011. The Veteran is also service connected for migraine headaches at zero percent from August 24, 2011 to September 17, 2014, and then at 50 percent since September 17, 2014. While having service connection for PTSD or for migraine headaches does not preclude the Veteran from also having a current disability related to a TBI, the medical examiner in this claim has found that the symptoms being complained about are more likely related to conditions already under consideration as service connected. See C&P Exam received October 2020. Upon review of the entire record, the Board finds that service connection for a TBI is not warranted as the preponderance of the competent, credible, and probative evidence weighs against the Veteran’s service connection claim. The Board acknowledges the Veteran’s lay statements of record about his active service experience. While the Veteran is competent to describe his experiences, the Board does not find that the Veteran competent to say that his experiences resulted in a diagnosable TBI. Also weighing against the Veteran’s claim is that the October 2020 VA examination did not find that the Veteran had a current disability of a TBI. The VA records show that the Veteran had positive screening for a TBI, as well as a follow-up consultation, which resulted in the Veteran being discharged from the TBI clinic with no formal diagnosis being made. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). (CONTINUED ON NEXT PAGE) The benefit of the doubt doctrine is not applicable as the preponderance of the evidence of record is against the Veteran’s claim for service connection. 38 U.S.C. § 5107. As such, the Veteran’s claim for service connection for a traumatic brain injury is denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.