Citation Nr: 21008498 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-53 609 DATE: February 17, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s claimed TBI had its initial onset in service or is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2002 to May 2005. The Veteran attended a hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans’ Appeals (Board) in January 2020 for an examination and medical opinion regarding the Veteran’s claimed TBI disability. The Veteran refused to go to his examination because of travel distance, COVID-19 concerns, and being on probation. In correspondence from January 2021, the Veteran’s representative stated that the Veteran was not concerned with his TBI claim because the Board previously granted his claim for total disability rating based on individual unemployability (TDIU). The Board notes the duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Board. App. 190 (1991). In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See, Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a TBI The Veteran contends that he is entitled to service connection for a TBI. Service connection may be granted for 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). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA treatment records from March 2016 note a TBI consult. The Veteran reported a bicycle event as an early teenager with a loss of consciousness estimated at five to ten minutes. The Veteran further reported two in-service injuries, specifically a football injury where he lost consciousness for a few seconds and falling off the back of a train flat bed where he was dizzy and confused for approximately one minute. The Veteran had a diagnosis of a mild TBI/concussion due to his three reported lifetime events. The Veteran’s physician opined that his cognitive concerns at this time are unlikely due to these concussive events. The Veteran’s physician stated that most heal fully after such events and the Veteran did not report ongoing issues due to the latter two events. Additionally, the Veteran’s physician stated that she cannot state for sure that he had ongoing issues due to the childhood event, but she noted that the Veteran has had vocational success since the reported injury. The Veteran’s physician opined that it is more likely than not that the Veteran does not have any residual cognitive issues due to the concussive event. The Veteran’s physician further opined that the Veteran’s cognitive concerns are likely due to his current ongoing mental health symptoms. At the October 2019 Board hearing, the Veteran testified that he had a concussion during service when he fell back and hit his head. Furthermore, he testified that he was unconscious and that he puked and slept it off. Additionally, the Veteran testified that after the injury his equilibrium was off, he lost his appetite, and his functionality was not “up to par”. Additionally, a witness at the Veteran’s hearing testified that she “can tell he has it”. She further testified that the Veteran is frequently forgetful and that his symptoms are like her sister’s symptoms, who has a TBI. The Board finds that entitlement to service connection for a TBI is not warranted. The Board finds the March 2016 TBI consult to be probative. The March 2016 physician provided a detailed opinion based on the pertinent evidence of record. While the Veteran believes that his claimed TBI is related to his active military service, specifically his claimed football injury and from falling off the back of a flat bed, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, and of significant probative value, the March 2016 negative opinion was rendered by medical professional with specialized training. The March 2016 medical opinion outweighs the lay reports from the Veteran. Based on the foregoing, the Board finds that service connection for a TBI disability is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the finding that there is a causal relationship between the Veteran’s current claimed TBI condition and his active military service. As such, service connection for a TBI disability is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.