Citation Nr: 21011371 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-26 256 DATE: March 1, 2021 ORDER Service connection for a traumatic brain injury (TBI) is denied. FINDING OF FACT 1. A TBI was not "noted" at service entrance. 2. The evidence does not show, clearly and unmistakably, that a TBI both preexisted service and was not aggravated by service. 3. A TBI is not related to an in-service injury or event. CONCLUSION OF LAW The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1153, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to June 1973. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2013 rating decision which, in pertinent part, denied entitlement to service connection for a traumatic brain injury. In February 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In March 2018, March 2020, and September 2020, the Board remanded the matter for further development, to include obtaining outstanding VA and private treatment records and a VA examination and medical opinions, the most recent being to attempt to obtain medical records. The requested development has been performed and the matter is ready for appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304 (b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran contends that service connection is warranted for a traumatic brain injury (TBI). Specifically, he contends that during basic training, he was hit in the head with a pugil stick and knocked unconscious. See February 2017 hearing transcript. He states that due to the TBI, he had headaches and memory loss. On his September 1971 entrance examination, the Veteran reported experiencing frequent or severe headaches and dizziness or fainting spells. The examiner noted that the Veteran had occasional mild headaches and that he fainted once as a child. In August 1972, the Veteran reported with complaints of throbbing pain on the right side of his head in the temporal region, with right hand and arm numbness. The clinician noted that the Veteran possibly had a history of this in civilian life and prescribed the Veteran caffergot tabs to take until the headaches stopped. In December 1972, the Veteran reported with complaints of a headache and numbness of his hand and face. The Veteran reported that he hit his head, but did not lose consciousness, and he was diagnosed with rule out migraine syndrome. In June 1973, the Veteran reported to his friends that he felt spacey and fell to the floor, striking his head. His friends reported witnessing what appeared to be a major motor seizure and tonic clonic contractions of his extremities. It was noted that the Veteran had been shooting up drugs and had needle marks, which looked old. The Veteran was diagnosed with toxic psychosis secondary to amphetamines and rule out seizure disorder. In an undated separation examination, the Veteran’s head and neurologic system were reported as normal upon objective examination. The Veteran was afforded a VA examination in October 2013. The Veteran reported having passed out several times as a child and having headaches for which he received morphine treatment. The Veteran noted being hit in the head with a pugil stick during basic training, as well as having a grenade go off near his head. The examiner noted that the Veteran’s service treatment records only reflected one documented account of him hitting his head, when he fell out of a chair and hit his head in 1973, but that it was unclear from the record whether this was due to drug use or from a seizure. After interviewing the Veteran and reviewing the claims file, the examiner found that the Veteran had a mild TBI. The examiner found that there was no true documentation in the Veteran’s service treatment records of a TBI and that the Veteran had a pre-existing history of syncope or TBI with loss of consciousness as a child. Thus, the examiner opined that it could not be endorsed that the Veteran suffered a TBI in service without resorting to mere conjecture. The examiner further opined that the Veteran’s migraine headaches were less likely than not attributable to an in-service TBI, as they pre-existed his military service. In its March 2018 remand, the Board found the October 2013 examiner’s opinion was inadequate, as it was based on an inaccurate premise. The examiner noted that the Veteran’s service treatment records contained only one instance of the Veteran hitting his head, in 1973. However, the Veteran’s service treatment records also reflected that the Veteran reported hitting his head in 1972. As it was not clear whether the examiner considered the 1972 record in rendering the opinion, the Board found that a remand was warranted for an addendum opinion. In addition, the examiner found that the Veteran had a pre-existing history of syncope or TBI with loss of consciousness as a child. However, the examiner did not opine as to whether any pre-existing TBI was aggravated by the Veteran’s in-service head injuries. Upon remand, the examiner was to provide an opinion as to whether any pre-existing TBI was aggravated by the Veteran’s service, to include the documented reports of the Veteran hitting his head in 1972 and 1973. The examiner was also requested to opine whether it was at least as likely as not (50 percent or greater possibility) that the Veteran’s traumatic brain injury was sustained during active service or was related to any incident of service, to include any head injuries. If the examiner determined that the Veteran’s traumatic brain injury pre-existed service, the examiner was asked to provide an opinion as to whether the Veteran’s traumatic brain injury was aggravated by (i.e., permanently worsened beyond the natural progression) by active service, to include any injuries to the head. If the examiner found that the traumatic brain injury was aggravated by active service, then he or she was to quantify the degree of aggravation, if possible. The examiner was asked to comment on the Veteran’s lay statements concerning any head injuries, as well as the 1972 and 1973 reported hits to his head documented in the Veteran’s service treatment records. The requested opinion was obtained in November 2019. Following a review of the file, the examiner opined that it was not at least as likely as not that the Veteran sustained a traumatic brain injury during the service. He noted that June 1973 STRs documented treatment for episode of LOC which was likely a seizure in setting of methamphetamine intoxication. He reportedly fell out of a chair and bumped his head, then had what was most likely a generalized tonic-clonic seizure with post-ictal confusion. He was noted to have had a bruise over left side of the forehead, which presumably was incurred as a result of impact on the floor. The examiner observed that a June 7, 1973 admission note mentioned that the Veteran "felt spacey" then fell to the floor, which might indicate that he had altered consciousness due to focal onset of seizure activity before secondary generalization. He stated that the Veteran's combativeness and inability to follow commands was most likely due to post-ictal state following his seizure and methamphetamine intoxication and less than likely due to concussion. His seizure was most likely caused by methamphetamine intoxication. The examiner noted that in his experience, a ground level fall from a chair was less than likely to generate sufficient force as to cause a TBI. Furthermore, his treatment records did not diagnose concussion and no concussion or TBI residuals were mentioned on separation examination. There was no workup documented such as brain imaging, labs, or EEG. The examiner also noted that a December 13, 1972 STR documented that the Veteran was seen for migraine headache. It was noted that he struck his head on this day but was not rendered unconscious. There was no mention of amnesia or confusion and physical examination was "negative," with no mention of outward signs of head trauma or neurological exam abnormalities. The examiner stated that this information did not support that the Veteran sustained a TBI due to this incident. He indicated that while the Veteran's lay statements concerning head injuries in the service were noted, these events were not documented in the STRs. The examiner further observed that the Veteran reported that in 1971, in basic training, he was in hand to hand combat training and was struck in the head by a pugil stick. He reportedly had LOC but was wearing a helmet at the time. There was no medical evaluation and his sergeant released him to full duty immediately. Subsequent STRs made no mention of increased headaches or other concussive symptoms. He also denied head injury on separation examination in 1973. The examiner stated that the description of the grenade blast with intervening wall was less than likely consistent with TBI, as there was no loss/alteration of consciousness and Veteran was able to relate all details before/after the grenade blast (no amnesia). This event was also not documented in STRs. The examiner stated that specifically considering his migraine headache history, there was no support for aggravation during the service due to TBI or other cause. His migraine headaches noted on entrance examination - which were self-reported to have started during childhood - clearly and unmistakably were present before the service. It was less than likely that his migraine headaches were aggravated during the service. He reported only 1-2 migraines per year during 2013 VA examination, which was a very low frequency and argued strongly against permanent aggravation during the service. Additionally, during a 2015 VA neurology consultation, the Veteran made no mention of his migraines worsening during service, specifically as a result of any in-service TBI. At that time, it was documented the Veteran reported his "migraines were occurring Q1-2 months when younger but had increased over past few years," implying that his migraine frequency was stable until a few years before 2015, decades after leaving the service (which is not consistent with post-traumatic aggravation of migraines, which would be expected to occur no more than a few weeks after an index TBI). Furthermore, the migraine frequency of 1-2X/year reported in 2013 was significantly lower than the Q1-2 month migraine frequency he had reported having as a child, and suggested that his migraines ultimately became less frequent after the service. His entrance examination documented a history of fainting spells but did not mention pre-service concussion resulting from fainting or due to other cause. The examiner noted that during the 2015 VA neurology consultation, the Veteran reported that as a child, he was strangled by a clothesline accidentally while running, and may have had brief LOC, but there was no mention of LOC being caused by actual head trauma (strangulation causing transient hypoxia is a more likely explanation). The 2015 Neurology consult was silent regarding history of head trauma and no diagnosis of TBI was noted. The examiner indicated that it was actually unclear how the VA examiner arrived at his diagnosis "MILD TBI (grade 2-3 concussion)" in 2013. In particular, he admitted there was no true documentation (of TBI) in STR. He reported that the Veteran had pre-existing history of syncope "vs TBI w/ LOC as a child", but the November 2019 examiner indicated that the Veteran's description of his childhood episodes, and that noted on entrance examination, were clearly consistent with syncope and made no mention of associated head injuries that could have cause associated TBI. Further, he noted that he 2013 VA examiner stated, "TBI occurring in the military cannot be endorsed w/o resorting to mere conjecture". Therefore, the basis for his diagnosis of mild TBI was unclear and his opinion, a diagnosis of TBI either before or during the service was not supported. Therefore, the weight of medical evidence, particularly the lack of documentation of the reported pugil stick injury or subsequent documentation of treatment for concussive symptoms indicated that it was less than likely that the Veteran sustained a TBI during the service. Specifically, STRs from 1972 and 1973 documented head injuries that were less than likely associated with TBIs based on documented description of these incidents and circumstances surrounding them. He stated that the Veteran’s cognitive and memory complaints were most likely due to his history of substance abuse. There was no evidence of aggravation of migraines during the service. As to the question of whether the Veteran's traumatic brain injury pre-existed service, with the examiner being asked to provide an opinion as to whether the Veteran's traumatic brain injury was aggravated by (i.e., permanently worsened beyond the natural progression) by active service, to include any injuries to the head, with the examiner quantifying the degree of aggravation, if possible, the examiner stated that the weight of medical evidence demonstrated that it was less than likely that the Veteran sustained a TBI prior to the service or during the service. Therefore, there was no basis for aggravation. After reviewing all of the evidence of record, the Board finds that the weight of the evidence demonstrates that a TBI did not clearly and unmistakably preexist service and was not aggravated in service. The Board does note that on his September 1971 entrance examination, the Veteran reported experiencing frequent or severe headaches and dizziness or fainting spells. The examiner noted that the Veteran had occasional mild headaches and that he fainted once as a child. However, the November 2019 VA examiner, following a comprehensive review of the record, opined that the weight of medical evidence demonstrated that it was less than likely that the Veteran sustained a TBI prior to the service or during service. Therefore, there was no basis for aggravation. As noted above, he stated that it was actually unclear how the diagnosis of mild TBI was rendered in 2013. He noted that the examiner admitted there was no true documentation (of TBI) in STR. He further observed that the prior examiner indicated that the Veteran had a pre-existing history of syncope vs TBI w/ LOC as a child; however, the November 2019 examiner noted that the Veteran's description of his childhood episodes, those noted on entrance examination, were clearly consistent with syncope and made no mention of associated head injuries that could have cause associated TBI. He also observed that the prior VA examiner stated, "TBI occurring in the military cannot be endorsed w/o resorting to mere conjecture"; therefore, the basis for his diagnosis of mild TBI was unclear and his opinion, a diagnosis of TBI either before or during the service was not supported. As to a TBI and its relationship, if any, to the Veteran’s period of service, the November 2019 VA examiner opined that it was not at least as likely as not that the Veteran sustained a traumatic brain injury during the service. He cited to the inservice episodes noted in the record, including the 1972 and 1973 incidents, indicating that the December 1972 STR, which documented that the Veteran was seen for migraine headache, with it being noted that he struck his head but was not rendered unconscious, with no mention of amnesia or confusion and physical examination being negative, with no mention of outward signs of head trauma or neurological exam abnormalities did not support that he sustained a TBI due to this incident. As to the June 1973 incident, which documented treatment for episode of LOC, this was likely a seizure in setting of methamphetamine intoxication and a ground level fall from a chair was less than likely to generate sufficient force as to cause a TBI. Furthermore, the examiner noted that the treatment records did not diagnose concussion and no concussion or TBI residuals were mentioned on separation examination. When rendering the above opinions, the examiner cited to numerous records on file and to the incidents which the Veteran indicated served as the basis for a TBI, including those not documented in the record. Although the Veteran has expressed his belief that he currently has residuals of a TBI as a result of injuries sustained in service, the question of causation of a complex medical condition, such as a TBI, extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). It has not been shown that he has the requisite training to diagnose TBI or its residuals or the cause of either. (Continued on the next page)   As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the Veteran's claim of entitlement to service connection for TBI is denied. 38 C.F.R. § 3.303 (2019). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.