Citation Nr: 21006392 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 20-14 195 DATE: February 4, 2021 ORDER Service connection for residuals of traumatic brain injury is granted. FINDING OF FACT The Veteran’s residuals of traumatic brain injury resulted from the blast of an improvised explosive device (IED) in Afghanistan in August 2009. CONCLUSION OF LAW Residuals of traumatic brain injury were incurred in wartime service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 2002 to April 2017, including combat service in Afghanistan, and his decorations include the Bronze Star and Purple Heart Medal and Combat Action Medal. He timely appealed this matter from a July 2017 rating decision. In December 2020, the Veteran testified before the undersigned at a virtual hearing; a transcript of that hearing is associated with the claims folder. Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as brain hemorrhage and brain thrombosis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. In this case, the Veteran was presumed sound at service entry. Clinical evaluation of the Veteran’s head, face, neck, and scalp at entry in January 2002 was normal; no disability was recorded. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board notes that a presumption of soundness may be rebutted by clear and unmistakable evidence. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s residuals of traumatic brain injury were both pre-existing and not aggravated by active service. 38 U.S.C. § 1111. Here, at entry in January 2002, the Veteran reported that he wrecked his truck and was sent to the Emergency Room because he had a head injury. No current problems were reported. The examiner noted a motor vehicle accident in 1996 with head injury and no loss of consciousness, and with full recovery. In December 2020, the Veteran testified that he had a car crash in high school at age 17 and wrecked his truck. He testified that he cut his head on a piece of glass, and that there was a laceration on his forehead. He testified that he was completely aware and had never lost consciousness, and there was no concussion. In this regard, without any medical documentation, the overall evidence does not rise to the level of clear and unmistakable; and the presumption of soundness is not rebutted. The Board concludes that the Veteran did not have residuals of traumatic brain injury prior to active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service treatment records show that the Veteran suffered loss of consciousness and retrograde amnesia from an IED blast in Afghanistan in August 2009. The blast occurred when the Veteran was riding in the rear gunner position, and his vehicle ran over an IED. The Veteran was blown 40 feet into the air and landed on his head; he wore a helmet. Three other military personnel died in the blast. The Veteran was treated in active service for recurring headaches. At times he complained of insomnia, ringing in both ears, lightheadedness, memory lapses, and high irritability. A separation health assessment completed in February 2017 revealed normal head, face, neck, and scalp; and normal psychiatric system. A February 2017 VA contract examination report shows a diagnosis of traumatic brain injury and date of diagnosis as August 2009. The examiner reviewed the Veteran’s medical history and indicated that the Veteran has no symptoms related to the 2009 IED explosion. In an August 2017 opinion, the examiner opined that residuals of traumatic brain injury, which clearly and unmistakably existed prior to service, were not aggravated beyond their natural progression by an in-service injury, event, or illness. In support of the opinion, the examiner reasoned at all examinations show no residuals of traumatic brain injury. As noted above, the Veteran was presumed sound at service entry. No residuals of traumatic brain injury were recorded at entry. The presumption of soundness is not rebutted. In this regard, the August 2017 opinion is not probative. In March 2020, the Veteran reported that he continued to have symptoms of headaches and memory loss and short temper. Another examiner in May 2020 opined that the Veteran’s headache condition was caused by the in-service injury, and not aggravated by it. In this case, service connection already has been awarded both for headaches and for tinnitus. In December 2020, the Veteran testified that he had symptoms in additional to headaches as residuals of traumatic brain injury. He described incidents of memory loss, insomnia, executive functioning problems, and short fuse. Here, the Veteran has described recurring symptoms as residuals of traumatic brain injury, following his discharge from active service. Where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Further, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012); 38 C.F.R. § 3.304(d). Moreover, the Veteran’s descriptions of recurring symptoms as residuals of traumatic brain injury are consistent with reports of insomnia and lightheadedness and memory lapses noted in service, which the Board finds credible and persuasive. Here, the evidence is in favor of finding that residuals of traumatic brain injury are related to the IED blast in active service. The May 2020 VA opinion, in which the examiner associated the Veteran’s headaches with the IED blast in active service, further corroborates the Veteran’s lay statements of ongoing symptomatology. His statements are consistent with the circumstances of his combat service, and are not expressly contradicted by the record. When considering the competent and credible lay statements, and the post-service medical evidence substantiating the Veteran’s claim; and resolving all reasonable doubt in his favor, the Board finds that residuals of traumatic brain injury are related to the in-service IED blast in Afghanistan in August 2009. See 38 C.F.R. § 3.102. Hence, service connection is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.