Citation Nr: 21008053 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-36 206 DATE: February 11, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) (also claimed as loss of hand/eye coordination, memory problems) is denied. FINDING OF FACT The medical evidence does not demonstrate a current diagnosis of TBI. CONCLUSION OF LAW The criteria for entitlement to service connection for a traumatic brain injury (TBI) (also claimed as loss of hand/eye coordination, memory problems) have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Army from April 2003 to August 2008. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. A November 2019 Board decision reopened the previously denied claim, and remanded the underlying claim on the merits for adjudication. It is now returned to the Board. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  These duties have been satisfied in this case.  Appropriate notice was provided in September 2015.  The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file.  No other relevant records have been identified and are outstanding.  Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in the November 2019 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that he sustained a TBI related to his military service, and has current residuals from that injury, including vision problems, loss of hand/eye coordination, and memory loss. Specifically, the Veteran reported that he was exposed to an IED while deployed in a convoy on his way from Baghdad Palace to the airport, around Christmas 2003, and that he was exposed to a blast from a rocket attack in 2007. Service treatment records (STRs) are silent for any diagnosis or treatment for a TBI. On April 2008 separation examination, the Veteran had a normal clinical evaluation. The Veteran marked “no” for a head injury, memory loss, or amnesia. Vision was slightly impaired, but the Veteran stated he had worn glasses since age 14. No IED explosion was referred to. Service personnel records reveal a June 2008 memorandum proposing separation under Army Regulation 635-200, for pattern of misconduct. The proposal documented that the Veteran had been counseled numerous times for malingering and for making false statements. One endorser referenced his repeated “schemes,” one of which resulted in his “ejection” from a base in Qatar by the base commander, an Air Force Colonel. The Veteran then “denied/downplayed” the incident to his unit. This involved his reports, following surgery for a cyst, that he was thinking of “raping females.” He later stated he was exaggerating this and other mental health symptoms in order to be sent home The Board notes the Veteran has reported he was sent home for PTSD problems, when in fact it stemmed directly from his pattern of behavior designed to exit the Army, as per the personnel records. His psychiatric evaluation at the time specified that no diagnosis was warranted. Post service treatment records document the Veteran’s report that his TBI disability started in April 2008. A December 2009 neuropsychological evaluation report indicated that the Veteran was not diagnosed with a TBI based on the objective testing showing unreliable results; they showed a “100 percent probability of malingering.” Diagnosis of depressive disorder, personality disorder, and insomnia were indicated “by history,” in other words solely based on the Veteran’s reports. A November 2011 VA posttraumatic stress disorder (PTSD) VA examination documented that the Veteran was not diagnosed with a TBI, citing the December 2009 evaluation. An October 2015 VA mental disorder examination also noted that the Veteran was not diagnosed with a TBI. In December 2011, a VA psychologist reported that the “most prominent aspect of the Veteran’s clinical picture is his noncredible self-report.” In various statements Dr. DM, a VA doctor, stated she was treating the Veteran for TBI, anxiety, and mood disorder. In a May 2016 letter, Dr. DM wrote that the Veteran was under her care at the TBI/Polytrauma Clinic at the Minneapolis VA. She indicated that the Veteran was working with multiple treatment team members on his recovery. In May 2019, Dr. DM wrote that the Veteran was under her care for persisting effects of a blast-related TBI which he sustained while serving in Iraq. The Board notes the Veteran sought treatment with Dr. DM after his prior VA doctor, Dr. MH, “did not support his disability claim” as he wished. He specified she would only diagnose anxiety and mood disorder, and did not help him in seeking relief from child support (due to unemployment) in court. Dr. DM did so, In July 2017, the Veteran testified that he first experienced an IED attack when traveling back from having dinner with the President. He indicated while traveling back an IED went off near his truck. He indicated that his truck was 50 to 100 meters from the explosion. He testified that around 2007/2008 he was hit with indirect fire. He stated that he was maybe 100 meters away from where the rockets detonated. He stated that since then, over time his memory had become a problem. He also noticed that over time that his head and eye coordination was giving him a problem. In December 2019, the Veteran was afforded a VA examination. The Veteran was not diagnosed with a TBI or any residuals of a TBI. The Veteran reported that he was the driver of a 2 and half ton truck when an IED detonated 50 meters to the right of his vehicle. He indicated that he lost consciousness from the blast but never stopped driving and was able to drive back to his base without incident. In 2007, the Veteran reported the he was outside smoking when 4 rockets landed and detonated 50 meters away from him. He indicated that there was no loss of consciousness, but he was dazed for 10 to 15 minutes. The examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran reported in 2003 an IED detonated 50 meters to the right of a vehicle he was in. The Veteran lost consciousness from the blast but never stopped driving and was able to return to the base without incident. In 2007, the Veteran out smoking a cigarette when 4 rockets landed and detonated 50 meters away from him. He noted that that the Veteran indicated that he did not lose consciousness but was dazed for 10 to 15 minutes. He noted that the December 2009 neuropsychological evaluation showed that the Veteran failed 3 of 3 dedicated tests of symptom validity and 2 embedded indicators of effort and met the criteria for malingered neurocognitive dysfunction. The February 2017 MRI of the brain showed bihemispheric punctate foci of T2 signal abnormality of doubtful clinical significance and pansinusitis but was otherwise normal. A June 2018 optometry evaluation showed right and left monocular diplopia and there was functional vision loss versus malingering suspected. The Veteran’s claims of a TBI and his reports of medical history from April 09, 2009 were inconsistent. The examiner noted that the optometry examination and neuropsychological testing were compatible with malingering. The Veteran’s claims of cognitive impairment years after his blast exposures was inconsistent with the natural course of TBI. Therefore, he concluded it was less likely than not that Veteran sustained a TBI as a consequence of military service. The Board notes that VA treatment records indicate a possible diagnosis of TBI and that many of the assessments indicate the Veteran’s self-reported history of TBI. However, the December 2009 neuropsychological evaluation indicated that the Veteran was not diagnosed with a TBI based on certainty the Veteran was malingering. Other doctors have also stated that the Veteran is not credible, as well. Some have stated so explicitly. Others have indicated such by reporting the reasons the Veteran sought a change in providers at VA in 2015; he sought someone who would believe his falsities and assist (albeit unintentionally) in his deceptions. The Army even discharged him for serious his lack of credibility, noting a pattern of malingering and false statements. Finally, the undersigned observes that the Veteran’s demeanor and behavior at his hearing did not appear credible, and he uttered proven falsehoods, such as when stating he was a Cavalry Scout kicking down doors, in communications, an armorer, and in supply. Records show the Veteran was in motor transport for his entire service. He appeared to have fine recall and communication skills, except when endorsing problems with such. He stated he had wanted to stay in service, and would still be in the Army if possible, in direct contradiction of his statements in service and those of the endorsers of his separation. In short, the Veteran lacks all credibility. The only evidence of the occurrence of any of the explosions, attacks, and traumas the Veteran reports are just that, his reports. The Board was required to accept his statements for purposes of reopening because they were conceivably consistent with service, Justus v. Princip, 3 Vet. App. 510 (1992), but is not so bound in the adjudication on the merits. The Veteran did not sustain a TBI in service. The Board is supported in this finding by the December 2019 VA examiner’s opinion finding no TBI based on the objective presentation of symptoms being inconsistent with such. The opinion is entitled to great weight because it is based on the prior evidence of record and objective cognitive testing. In contrast, the repeated and unsupported assertions of Dr. DM on the Veteran’s behalf and based solely, apparently, on his self-reported history, are given no probative weight. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110 (2012); see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The claim is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.