Citation Nr: 21061689 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-00 851 DATE: October 5, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a TBI, due to an event, injury, or disease in service. 2. The Veteran is not service connected for any conditions. 3. The Veteran is not precluded from securing or following a substantially gainful occupation as a result of a service connected condition. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI are not met. 38 U.S.C. §§ 1110, 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to July 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office. In May 2019 a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a November 2019 decision, the Board denied, amongst other issues, the Veteran's application to reopen the claim for service connection for TBI. In August 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial and remanded the above referenced issues to the Board pursuant to a joint motion for partial remand (JMPR). The November 2019 decision also remanded the issues of entitlement to service connection for a low back disability and for a TDIU. In March 2021, the Board denied service connection for a low back disability. 1. Entitlement to service connection for a traumatic brain injury (TBI) The Veteran has asserted he suffers from a TBI as a result of his time in service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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 veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After having considered all of the evidence of record, the Board concludes that the preponderance of the evidence is against finding that the Veteran suffers from TBI related to his military service. The Veteran's service treatment records (STRs) are negative for any TBI-related complaints or diagnoses. In an October 2002 statement from Dr. A. L., it was noted the Veteran suffered from left nerve palsy, likely secondary to boxing, resulting in double vision. In April 2001, the Veteran sought care for memory problems. He reported these symptoms started in 1992. At an April 2013 VAMC visit, the Veteran relayed his belief that he has memory difficulties related to his history of boxing during service and subsequent head injuries. The Veteran underwent a TBI examination in August 2016. He was noted to have a history of a TBI and left trochlear nerve palsy. He had corrective eye surgery for diplopia in 2002, resulting in resolution of his diplopia. The examiner stated it is at least as likely as not that the Veteran sustained a mild TBI during service, which was followed by memory difficulties lasting approximately one week with resolution after this period time. He sustained a left 4th cranial nerve palsy due to one of his head injuries during his boxing career, but this resolved in 2002. The examiner opined that due to a lack of sufficient medical documentation, it was not possible to state with certainty that a head injury during service resulted in left 4th cranial nerve palsy. In an addendum, the examiner opined it is less likely than not that the Veteran's memory complaints are due to a TBI during service. The rationale was that neuropsychiatric testing from April 2001 did not provide any conclusive evidence of cognitive impairment due to the Veteran's boxing career. In May 2021, the Veteran underwent an examination. The Veteran reported a head injury from boxing. He reported migraine and memory difficulty since separation from service. There were no complaints of impairment of memory, attention, concentration, or executive function. His judgment was normal, social interaction routinely appropriate, and he was always oriented to person, time, place, and situation. His motor activity and visual/spatial orientation were normal. There were no neurobehavioral effects. He was able to communicate by spoken and written langue and to comprehend spoken and written language. He had normal consciousness. He was not diagnosed with a TBI. The examiner noted the Veteran's STRs are void for TBI complaints or diagnoses. The Veteran boxed before, during, and after service. The statement from Dr. L. noted the Veteran suffered from left nerve palsy, likely secondary to boxing. The examiner concluded it is less likely than not that a condition was incurred in or caused by a claimed in-service injury, event, or illness. The examiner explained the right eye movement repair from 2002 is isolated and separate, and does not make a case for TBI. Although the Veteran believes he suffers from TBI due to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body/interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board affords more probative weight to the VA examiners' opinions. The record indicates he was noted as having a likely TBI during service that then resolved. He is not currently diagnosed with a TBI. As for the eye, he was treated, and the 2021 examiner indicated his eye condition is not related to service. In so concluding, the examiners provided a detailed rationaleincluding consideration of the medical evidence and lay reports. The examiners' opinions are probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. There are no competent opinions to the contrary and in support of the Veteran's claim. The most probative evidence of record does not show that the Veteran suffers from a TBI directly due to service. Therefore, the claim must be denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran asserted that he is unable to obtain employment as a result of impairments related to service. TDIU is assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. The Veteran is not in receipt of service connection for any disabilities. As such, the Veteran does not meet the percentage requirements for TDIU. 38 C.F.R. § 4.16(a). A TDIU may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section § 4.16(a). Again, he is not in receipt of service connection benefits for any disability and referral for extraschedular consideration is not warranted. A TDIU is denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.