Citation Nr: 21004569 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-28 738 DATE: January 27, 2021 ORDER Entitlement to service connection for traumatic brain injury (TBI) is denied. FINDINGS OF FACT The most probative competent evidence of record reflects that the Veteran does not have a current diagnosis of TBI. CONCLUSIONS OF LAW The criteria for entitlement to service connection for TBI have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to December 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). The June 2020 rating decision granted entitlement to service connection for left ear sensorineural hearing loss and tinnitus. That action represents a total grant of the benefit sought on appeal with respect to the issue. Therefore, the issue is not before the Board at this time. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for traumatic brain injury (TBI) The Veteran claims that he sustained a TBI when he was wounded twice in Vietnam. He stated that he was unconscious for “some minutes” both times. He states that on October 29, 1969 he stepped on a booby trap and on November 15, 1969 a rocket-propelled grenade fell close to where he was standing. See August 2010 statement. The Veteran has received awards including the Combat Infantry Badge, the Air Medal, and two Purple Hearts for his service in the Republic of Vietnam. The Veteran’s service treatment records include an entry that the Veteran reported having a headache for four days. On examination his temperature was 100 degrees. See January 1969 treatment record. Approximately six months later, the Veteran was also treated for headaches and chills. Two days later he reported he was feeling well. See July 1969 treatment record. An April 1970 service treatment record notes that he was elbowed in the eye while playing basketball and the eye swelled shut. An X-ray was negative for fracture. Also, the Veteran’s separation examination noted that the Veteran reported that he was in good health and denied having “frequent or severe headaches.” In a February 2019 primary care telephonic clinic treatment note, the examiner stated that a CT scan would be requested for a dementia work up. In July 2019, the Veteran had a CT scan. The report noted, “no evidence of acute intracranial hemorrhage or midline shift. Persistent diffuse cerebral volume loss. There are also persistent findings of small vessel disease.” In September 2019, the Veteran underwent a VA examination for an evaluation of residuals of TBI. The examiner noted that the medical evidence is silent for a traumatic brain injury, specifically the Veteran’s post deployment examination is silent for head trauma. The examiner also noted that there are no records supporting sequela of traumatic brain injury like headaches or tinnitus in the Veteran’s service treatment records. The Board notes, that the Veteran suffered from headaches on two occasions prior to when he contends, he reported he sustained a TBI, but there were no reports of headaches after he contends, he sustained a TBI. The September 2019 examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As to the rationale, the examiner stated that there is no evidence to support a TBI. In addition, there is “no sequela like headaches, neurobehavioral effects, motor or visual special deficits.” The examiner also noted that the Veteran was able to complete a master’s degree and was able to work for many years. Finally, the examiner stated, “given the above explanation there is no reason to think and also given the post deployment examination that was silent for head injury that the Veteran suffered a traumatic brain injury during the active service.” The evidence on record indicates that the Veteran has not endorsed any alteration in mental state at the time of the injury, any neurological deficits, nor any intracranial lesions. The Veteran’s service treatment records, including his self-reporting at his separation examination, do not contain any complaints or findings related to a TBI. The evidence on record does not indicate that the Veteran has ever been diagnosed with a TBI. The Board has considered the Veteran’s contention that he incurred a TBI as a result of injuries sustained when he stepped on a booby trap, and when a rocket-propelled grenade fell close to where he was standing. Service incurrence is presumed pursuant to 38 U.S.C. § 1154(b). Section 1154(b), however, only provides a means by which combat veterans may establish the second element of service connection, an in-service event or injury. It does not eliminate the need for evidence of a current disability or a medical nexus. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Accordingly, even when the combat presumption applies, a “veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Shedden, 381 F.3d at 1167; see also Boyer v. West, 11 Vet. App. 477, 478-79 (1998) (specifically addressing section 1154(b) and the need for nexus evidence where in-service exposure to acoustic trauma was otherwise established by the record). In this case, the most probative evidence of record, the September 2019 VA examination, which was conducted for the express purpose of determining whether the Veteran had a TBI as a result of his in-service injury, indicates that the Veteran does not currently have a TBI as a result of the in-service injury. There is no other probative evidence of record indicating that the Veteran currently has a TBI or the residuals of one. The Board has considered the Veteran’s contentions to the effect that he has a TBI as a result of injuries sustained when he stepped on a booby trap and when a rocket-propelled grenade fell close to where he was standing, but finds that the determination of whether the Veteran suffers from residuals of a TBI is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of whether the Veteran suffers from the residuals of a TBI is a medical question requiring medical training, expertise, and experience. The Board finds that the medical opinion provided in the September 2019 examination outweighs the Veteran’s lay opinion. The Board also notes that the Veteran is in receipt of separate ratings for his hearing loss and tinnitus. Thus, VA has considered alternate diagnoses for the symptoms which are a part of the underlying claim. See 38 C.F.R. § 4.124a, Diagnostic Code 8045; Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). As such, the Board finds the preponderance of the evidence does not support a diagnosis of a current disability with respect to the Veteran’s claim for service connection for residuals of a TBI. Therefore, the Board finds that service connection is not warranted for this claim. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.