Citation Nr: 21068065 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-18 778 DATE: November 9, 2021 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2003 to October 2007, including deployment to Iraq from December 2003 to July 2004. This appeal to the Board of Veterans' Appeals (Board) is from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), reopening but continuing to deny this claim for service connection for residuals of a TBI including headaches. In August 2019, during the pendency of this appeal, the Veteran, his grandmother, and his aunt testified in support of this claim during a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In October 2019, the Board, in relevant part, likewise reopened this claim but then also denied it on its underlying merits. The Veteran appealed that denial to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In April 2021, the Court issued a Memorandum Decision vacating the Board's denial of this claim and remanding it back to the Board for further proceedings consistent with the Memorandum Decision. To comply with the Memorandum Decision, the Board, in turn, is remanding this claim back to the RO (AOJ). Entitlement to service connection for residuals of a TBI The Veteran contends that he sustained a TBI while deployed to Iraq and that he has residual symptoms, including headaches, which continue to adversely affect his employment and quality of life. Since there is suggestion of potentially relevant injuries in service, and the Veteran's assertion of continuing symptoms since, the Board is obtaining a medical opinion concerning the likelihood the Veteran has residuals of a TBI owing to his service. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006); 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4). In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not to be credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). In cases involving combat, VA is prohibited from drawing a negative inference from silence in the service treatment records (STRs). Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning evidence weighing against a party, must not be equated with the absence of evidence). Combat engagement with the enemy requires participation in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, not just service in a general "combat area" or "combat zone". See VAOPGCPREC 12-99 (October 18, 1999). Further, 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) do not entitle a combat Veteran to service connection; instead, they create the so-called "combat presumption" that relaxes the evidentiary requirements for determining what happened in service. Wade v. West, 11 Vet. App. 302, 305 (1998) ("a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). In other words, in this circumstance, a Veteran must still generally establish the claim by competent medical or other (lay if acceptable) evidence tending to show a current disability and a correlation between that disability and the combat event in service. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In turn, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). Here, there is an August 2013 TBI diagnosis and treatment for headaches through May 2019 attributed to the TBI, establishing a current disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran consistently has maintained that he sustained two TBIs during his service, one while riding in a military vehicle and another in combat conditions during a mortar attack in Iraq. Military records show he was a 19D Cavalry scout and he reports assignment to 1st Squadron, 1st Calvary, while deployed. Treatment records reflect a finger injury and gastroenteritis at Camp Slayer, Baghdad, in January 2004, and a periodic health assessment in Baghdad in March 2004. His June 2004 post-deployment health assessment stated that he was seen in sick call 3 times during deployment and experienced headaches while deployed, but not after. He reported post-deployment dizziness, fainting, and difficulty remembering. He also reported combat, discharging his weapon, seeing coalition and civilian casualties, and experiencing nightmares. None of the health assessment questions specifically addressed TBI or head injuries. During his August 2013 TBI clinic evaluation, the Veteran reported a mortar attack one night and that, while running, he ran into a pole resulting in a laceration between his eyes. He said he lost consciousness and received stitches. He also recalled being put on quarters for an unknown amount of time but was still able to do his job. As well, in another incident, he reported striking his head on the inside of a truck while on patrol at night. He was bleeding and taken for wound care. Notably, in relaying his narrative regarding his injuries and military service, the Veteran also has repeatedly stated that he was awarded a Combat Action Badge (CAB), signifying performance in active engagement, i.e., combat with enemy forces. His military personnel records do not show any such award bestowed on him based on his service. Likewise, his enlisted record brief (ERB) does not reflect any combat assignment or action during his service. None of his STRs specifically references a head injury or treatment. Consequently, there is conflict that was addressed, but not fully resolved, in the Board's prior October 2019 decision (as mentioned, since vacated by the Court) regarding whether the Veteran engaged in combat in Iraq. There is no disputing he was deployed to Iraq. Treatment records from Camp Slayer, and the March 2004 health assessment, are all completed by providers and military officers not the Veteran himself apparently serving in, and bear official stamps from, Camp Slayer and 1st Squadron, 1st Calvary, in Baghdad, Iraq. Also, his June 2004 post-deployment assessment was completed by a provider who indicated the dates, times, and locations of the Veteran's deployment, regardless of the source of symptom statements. As such, there are multiple, concurrent documents generated by uninterested parties supporting the Veteran's credible lay statements that he was in Iraq, recognized as part of the Southwest Asia theater of operations between December 2003 and June 2004. As alluded, participation in combat is a determination that is to be made on a case-by-case basis, and it requires that a Veteran have "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." See Sizemore v. Principi, 18 Vet. App. 264 (2004). A VA General Counsel Precedential Opinion holds that credible lay statements can also establish combat status. VAOGCPREC 12-99, at para. 11 (Oct. 18, 1999). Also, as alluded, combat may be defined as an encounter with a military foe or instrumentality of that foe, such as mortar attacks on a military installation. Here, there is lay evidence consistent with the circumstances of the Veteran's active duty supporting a finding that he engaged in combat during his military service in Iraq. Id. He has repeatedly maintained, to providers and to VA, that his current headaches began in service, after engaging in combat in Iraq. So, the record reflects a current disability, credible evidence of an in-service injury, and a suggestion there may be a relationship between the two. VA has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty includes obtaining a medical examination or opinion if needed to make a decision on the claim. 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). The Veteran has not been afforded a VA compensation examination for a medical nexus opinion addressing his claimed TBI. Therefore, the Board finds that a VA examination and medical nexus opinion are needed prior to re-adjudicating this claim. McLendon, 20 Vet. App. at 79; 38 C.F.R. § 3.159(c)(4). Accordingly, this claim is REMANDED for the following action: Schedule the Veteran for a VA examination for his claimed TBI, including residuals. The examiner must review the claims file, including a complete copy of this remand and the CAVC's Memorandum Decision. For the purposes of this examination, the examiner should consider the Veteran's narrative regarding his injuries in service to be credible, regardless of supporting documentation, or lack thereof, in his military records. If the examiner finds the Veteran's statements not credible for other reasons, the examiner should express why; however, lack of military records affirmatively reflecting combat engagement will not be considered sufficient. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment of his earning capacity, then the examiner should for all intents and purposes consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is it at least as likely as not the Veteran has residuals including headaches, owing to a TBI sustained during his military service, especially because of his claimed injuries during his deployment to Iraq? Provide rationale for the opinion, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.