Citation Nr: A21020514 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 190523-19968 DATE: December 27, 2021 ORDER Service connection for traumatic brain injury (TBI) is denied. FINDING OF FACT The probative evidence of record does not show that the Veteran sustained a TBI in service or that he currently has residuals of a TBI. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a TBI have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from October 1987 to March 1997 including service in Southwest Asia. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted VA Form 10182 in May 2019 and chose the hearing option. As such, the Board may only consider evidence that was before the RO in March 2019, hearing testimony, and additional evidence submitted within 90 days of the Veteran's September 2020 hearing. In September 2020 the Veteran testified before a Veteran's Law Judge (VLJ). A copy of the transcript is of record. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38U.S.C. §§§1110, 1131. To establish a right to compensation for a present disability, a Veteran 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" -the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167. Entitlement to service connection for residuals of a traumatic brain injury (TBI) The Veteran contends that he has residual disabilities from a TBI due to his Naval service. The Veteran has been awarded service connection for posttraumatic stress disorder (PTSD), headaches, residuals of a fracture of the right mandible, and bilateral hearing loss. The Veteran's service treatment records (STRs) including a March 1995 physical examination do not contain evidence of any complaint, treatment or diagnosis of a TBI. The mandibular fracture was incurred in November 1993 while playing basketball. During a February 1997 discharge examination, the Veteran reported occasional headaches, reduced hearing acuity, and fractured jaw, but specifically denied any head injury. The Veteran's post-service medical treatment records likewise does not contain any evidence of a diagnosis of a TBI, nor residuals thereof. To the contrary, in January 2013, a Gulf War General Medical Examination Disability Questionnaire was provided for the Veteran. Headaches were found, but the VA examiner specifically did not find that the Veteran sustained a TBI in service. See November 2021 CAPRI, p. 232. The Veteran submitted a claim of service connection in March 2019. No medical or lay evidence was submitted in conjunction with the claim, and the RO denied the claim in March 2019. In May 2019, the Veteran submitted VA Form 10182, in which he requested a hearing before the Board. A hearing was provided in September 2020. The Veteran testified that he did not have "a specific diagnosis of traumatic brain injury" but believed that he suffered from one in service. The Veteran testified that he was never knocked unconscious, but that he believed that he suffered a TBI due shooting an M2 50 Cal machine gun in service and from "the blast from the guns." The Veteran pointed to headaches and dizziness as evidence of residuals of a TBI. When asked if he had evidence of a diagnosis, the Veteran stated that he would provide one from his private physician. See September 2020 Hearing Transcript. The Veteran is service connected for headaches, residuals of a fractured jaw, hearing loss, tinnitus and posttraumatic stress disorder. The Veteran did submit the letter from Dr. A.S.P. dated in July 2020 and can be considered. Dr. A.S.P. noted that the Veteran experienced acoustic trauma that resulted in hearing loss and tinnitus. The physician also noted that the Veteran gets frequent dizziness and imbalance although not clearly associating the two symptoms with any trauma except possibly in the context of the report of loud noise. The symptoms pertain to a time after the March 2019 rating decision and cannot be considered as indications of a disability prior to that decision but will be considered as affirming noise exposure. The Board recognizes the Veteran's lay testimony of record. The Board has conceded noise exposure, as the Veteran is currently serviced connected for bilateral hearing loss, and concedes that the Veteran suffers from headaches, as he is currently service connected for headaches. Regarding dizziness, the Veteran is competent to testify as to such observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, lay assertions do not constitute a competent clinical diagnosis of a traumatic brain injury in service, or residuals thereafter. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As a result, these lay assertions cannot constitute competent medical evidence in support of the claim. To the contrary, the medical evidence of record is silent as towards any complaint, treatment or diagnosis of a TBI in service, or residuals thereafter, with the January 2013 VA examiner specifically finding that the Veteran was not diagnosed with a TBI. The existence of a disability at the time of the March 2019 rating decision is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110; see also Brammer, 3 Vet. App. at 225. In this case, there is no medical evidence showing that the disability in question was diagnosed at any time during the pendency of the claim. The Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.