Citation Nr: 21007064 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 19-19 583 DATE: February 8, 2021 ORDER Entitlement to service connection for TBI is granted. Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for vertigo (claimed as dizziness) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's TBI was incurred during his military service. 2. The evidence is at least evenly balanced as to whether the Veteran's migraine headaches are related to an in-service injury. 3. The evidence is at least evenly balanced as to whether the Veteran's vertigo is related to an in-service injury. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for TBI are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for vertigo are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1993 to August 2002 and from August 2002 to July 2013. This matter comes before the Board of Veteran Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Although there were prior denials of service connection for TBI in 2014 and 2015, additional evidence was received within a year of those denials which required readjudication of the claim and rendered those denials non-final and the claim pending. Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014) (to comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim). The Veteran filed a January 2017 notice of disagreement (NOD) as to his TBI, headaches, and dizziness. In May 2019 the RO issued a statement of the case (SOC) and in July 2019 the Veteran timely filed a substantive appeal to the Board (via VA Form 9). In January 2021, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). TBI, migraine headaches, and vertigo A March 2016 VA treatment note indicates that the Veteran has been diagnosed with TBI, migraine headaches and vertigo. Although the Veteran initially filed a claim of entitlement to service connection for dizziness, based upon the evidence of record, the Board has characterized the Veteran's claim to include vertigo. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). A December 2019 VA examiner also diagnosed the Veteran with chronic tension headaches. Thus, a current disability has been demonstrated. An October 2013 service treatment record (STR) indicates that an FA18 fixed wing aircraft mistakenly dropped two bombs about 50 to 75 yards from the Veteran while he was stationed on a gun line. A March 2016 VA treatment note indicates that while being treated for his TBI the Veteran reported that, as a result of these explosions, he experienced dizziness and headaches since service. The Veteran’s statements regarding his dizziness and headache symptoms are competent and credible, particularly in light of the confirmed in-service explosions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan, 451 F.3d at 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current TBI, migraine headaches and vertigo and his in-service injury. A March 2016 VA treatment note indicates that the Veteran was diagnosed with TBI, migraine headaches and vertigo. As the physician diagnosed the Veteran’s based on his in-service injury, these diagnoses serve as an implicit nexus opinion based on the context of the evidence of record. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Therefore, this opinion weighs positively in the Veteran’s favor and is assigned significant probative value. A January 2021 VA examiner opined that the Veteran’s TBI and headaches are at least likely as not incurred in or caused by the claimed in-service explosion. The VA examiner explained that his STRs document the event in service and TBI is known to cause headaches later in life. The VA examiner determined that a pattern of chronicity has been established. As the VA examiner provided a thorough rationale based on an accurate characterization of the evidence of record, his opinion is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The May 2019 VA examiner opined that the Veteran’s TBI is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there is no diagnosis of TBI as he has no symptoms or signs suggestive of TBI. As the Veteran has been diagnosed with TBI and exhibited residual symptoms such as dizziness and headaches, the May 2019 VA examiner’s opinion is of no probative value as it was based on an inaccurate premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). An August 2020 VA examiner opined that the Veteran’s dizziness/vertigo is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there was no objective evidence on examination to render a diagnosis for dizziness/vertigo. As the Veteran has been diagnosed with vertigo, the August 2020 VA examiner’s opinion is of no probative value as it was based on an inaccurate premise. Reonal, 5 Vet. App. at 461. Given the Veteran’s credible lay statements, the in-service injury and the positive nexus opinions, the evidence is at least evenly balanced as to whether the Veteran's TBI, migraine headaches, and vertigo are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for TBI, migraine headaches and vertigo is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.