Citation Nr: 21073380 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 11-23 920A DATE: December 8, 2021 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is granted subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, he has been shown to have residuals of a TBI, such as memory problems, dizziness, loss of balance/coordination, clumsiness, vision problems, and severe fatigue, that are related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a TBI are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from August 1997 to February 1998, from July 1999 to April 2000 and from June 2004 to July 2005. The matter was previously before the Board of Veterans' Appeals (Board) in August 2016, where the Board remanded the appeal for RO review of newly obtained pertinent evidence. The matter was again remanded in May 2018 and June 2021 for further development including affording the Veteran a new VA examination. The matter has returned to the Board for an appellate review. In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans' Law Judge. A copy of the transcript has been reviewed and is associated with the file. Entitlement to service connection for residuals of traumatic brain injury (TBI) The Veteran contends that he has current residuals of a traumatic brain injury as a result of an in-service motor vehicle accident (MVA) in Iraq. The Veteran also asserts that his TBI and residuals are the result of several mortar attacks landing in close proximity to him, while working at FOB Speicher. See January 2010 Correspondence. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that the Veteran has a current diagnosis of a TBI, thus satisfying the first element of service connection. A 2009 VA treatment report noted a positive screening for TBI. A November 2011 Polytrauma Clinic Discharge Note indicated that the Veteran has been diagnosed with a mild TBI. The September 2021 VA examiner noted a diagnosis of TBI without cognitive residuals during a VA neuropsychological examination. A March 2012 psychologist found the Veteran to have a cognitive disorder attributed to an organic brain disorder (TBI). With regard to an in-service event, the Veteran's service treatment records (STRs) document that he sustained an injury in a MVA while deployed in Iraq. The evidence shows the Veteran had multiple head, neck, and back traumas in service and STRs show treatment associated with such trauma. Moreover, the Board notes that the Veteran is competent to report exposure to an external force and is competent to report each of the clinical signs, indicative of a TBI. Based on the foregoing, the Board finds that the Veteran suffered a TBI event during service. As such, the second element of service-connection is met. See Shedden, 381 F.3d at 1166-67. The remaining question is whether the Veteran has current residuals of a TBI that are related to the in-service TBI event. In an August 2009 Polytrauma Note, the Veteran complained of memory loss, irritability, balance problems, dizziness and headaches that have continued since his MVA in 2005. A TBI screening was positive. The Veteran also had a consult for a 2nd level TBI screen. The Veteran stated that he has been told that he was acting differently. He reported symptoms of moderate dizziness, clumsiness, vision problems, concentration issues, slowed thinking, severe fatigue, anxiety, depression, and headaches. The assessment included findings consistent with TBI, and current symptoms most consistent with combination of TBI and behavioral health conditions. See CAPRI. In March 2010, the Veteran was referred for neuropsychological testing to assess the extent of his memory problems and his TBI-related behavioral disruptions. The psychologist noted that the STRs showed only subjective complaints of in-service head injury but no documented diagnosis of TBI. On evaluation, the diagnostic impression was major depressive disorder and no evidence of cognitive deficits related to TBI. See March 2010 VA Examination. In a June 2011 VA TBI examination, the Veteran reported memory issues, headaches, dizziness/vertigo, balance/coordination problems and sensitivity to heat since his return from Iraq. The examiner opined that the currently diagnosed TBI is less likely related to the Veteran's in-service MVA accident. The examiner's rationale was that although there is documented trauma to the head after the MVA in January 2005, there is no documentation of having a TBI diagnosis until the August 2009 Polytrauma Clinic screening for TBI. The examiner explained that there are no medical records available to review between 2005 and 2009; and that the Veteran had a neuropsychology testing in May 2010 which showed a diagnosis of major depressive disorder but no evidence of cognitive deficits secondary to TBI. See June 2011 C&P Examination. A November 2011 VA treatment note from Dr W., revealed that the Veteran has been struggling since his 2005 discharge from the Military; that he has lost jobs due to poor memory; and that he has chronic debilitating headaches most likely secondary to TBI. See Medical Treatment Record - Government Facility. A March 2012 Social Security Administration (SSA) Disability Consult with Dr. S. P. indicated that the Veteran is slow to respond to questions and seems to have slow processing of information. A summary of the psych evaluation shows a pattern of uneven cognitive development. The examiner noted that he believes the Veteran would have problems persisting to tasks at a reasonable pace and recalling other than simple information. The diagnosis was cognitive disorder, primarily impacting working memory and processing speed. See Medical Treatment Records-Furnished by SSA. A May 2014 VA TBI examiner noted that the results of neuropsychology testing show average functioning, and that any fluctuations in test scores were what one would expect in a person of average cognitive capacity who has normal fluctuations. The examiner noted that the Veteran's speed of information process is somewhat slower than one would expect, which may be attributable to depression as there was no indications of residual cognitive loss secondary to an organic etiology. See May 2014 C&P Examination. In a January 2016 medical addendum opinion, the examiner opined that the Veteran at most sustained a mild TBI during his in-service MVA in January 2005 as STRs show back/neck pain and radiating headaches and evaluation for blurred vision. The examiner noted that in-service testing showed no findings of residual neurocognitive disorder. Therefore, the Veteran sustained a mild TBI that has since improved/resolved without residual cognitive deficits; that headaches are the only residual symptoms likely related to his injury; and that other symptoms are attributable to the Veteran's mental health diagnosis. See CAPRI. At a June 2019 TBI VA examination, the Veteran reported that his memory has not improved since the in-service MVA; that he experiences headaches four (4) times a week, that lights/noise bother him; and that he is nauseated at times. The examiner noted that the Veteran had an acute TBI which resolved with residual post-traumatic headaches. See June 2019 C&P Examination. The Veteran was afforded a neuropsychological testing and evaluation in September 2021. The examiner reasoned that the Veteran did not meet the criteria for a diagnosis of a cognitive disorder or any other residual of traumatic brain injury, with the exception of the already service connected headaches. The examiner explained that although the Veteran suffered a head injury during service, the only residual is the service connected headaches. Agreeing with prior evaluations in 2010 and 2014, the examiner concluded that there is no cognitive disorder attributed to a TBI and that any memory issues were solely attributable to the service-connected depression. See August 2021 C&P Examination. On review of the pertinent record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran has residuals of TBI that is related to the in-service MVA event. The Board does acknowledge that there is conflicting evidence as to whether the Veteran has current residuals of a TBI. In a March 2010 VA examination report, the examiner acknowledged that the Veteran reported having symptoms such as attention or concentration deficits on examination; however, he concluded that the Veteran's symptoms were not residuals of a TBI because there was no diagnosis of TBI after the in-service MVA. The March 2012 Social Security Administration (SSA) examiner indicated a diagnosis of cognitive disorder, primarily impacting working memory and processing speed. The June 2014 examiner noted that the service-connected headaches could possibly be related to another etiology which he could not opine to, without resort to speculation. In addition, the September 2021 VA examiner, like the June 2014 VA examiner, noted that there were no cognitive deficits and largely attributed the Veteran's memory issues to his already service-connected depression and headaches. However, the examiners did not specifically address the etiology of the Veteran's other symptoms related to TBI such as blurred vision, loss of balance, fatigue, dizziness, and other behavioral/emotional issues. The Board notes that the Veteran is competent to report observable symptoms and events, including the onset of his symptoms of dizziness, blurred vision, memory, and concentration problems. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds no reason to doubt the credibility of his statements regarding such residuals. The Board also notes that the March 2010 VA examiner concluded that the Veteran did not have an active TBI or residuals of a TBI. In so finding, the examiner stated that the Veteran's symptoms were subjective. However, the Board finds that the Diagnostic Code for TBI specifically indicates that subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board acknowledges that the Veteran is currently service-connected for headaches and major depressive disorder. The rule against pyramiding provides that the evaluation of the same disability or the same manifestations under various diagnoses is prohibited. See 38 C.F.R. § 4.14. However, the rule does not preclude a claimant from being service-connected for disabilities with overlapping symptoms. The issue of whether to service connect a disability is separate from the determination of how to rate a service-connected disability. Moreover, as discussed above, the March 2012 SSA examiner likened the Veteran's memory and processing speed issues as a cognitive disorder. Based on the foregoing and resolving any doubt in favor of the Veteran, the Board finds that the Veteran has current residuals of a TBI, such as dizziness, loss of balance, loss of memory, fatigue, blurred vision, and concentration impairment that are etiologically related to his in-service TBI event. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim for service connection for residuals of a TBI is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.