Citation Nr: 21011536 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-67 004 DATE: March 2, 2021 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran incurred a TBI in active service and has current residuals thereof. CONCLUSION OF LAW The criteria for entitlement to service connection for the residuals of TBI have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1983 to July 1985 with time in the reserves before and after his active duty period. The Veteran testified at an October 2020 Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI) The Veteran asserts that he suffered a TBI while in service and currently experiences residual symptoms as a result. Specifically, he has testified about an in-service bicycle accident and an in-service assault, both of which resulted in head trauma. After a review of the evidence of record, the Board finds that the Veteran’s claim should be granted. At the outset, the Board notes that it indisputable that the Veteran had in-service injuries which resulted in head trauma. First of which is the Veteran’s injury during a bicycle ride, treatment for which is documented in a July 2, 1983 emergency care and treatment note in the Veteran’s service treatment records. The document notes that the Veteran hit a parked car while riding his bicycle and was thrown to the ground, the Veteran’s immediate complaint is of shoulder pain (for which he is currently service connected). X-rays were ordered, but it appears never completed. The Veteran’s testimony indicates that he doesn’t remember the accident itself, only that he woke up in the middle of the street being treated by EMT personnel. He also indicated that his head was wrapped, and he was told to ice it to keep the swelling down. He also indicated that needed help ambulating following the injury, and that he has experienced headaches ever since. The second in-service injury documented is the Veteran’s assault for which he has another emergency care and treatment note in his service treatment records. He was treated for his injuries, including documented trauma to the back of his head, in September 1983. The Veteran’s records indicate that he was referred to his Company Commander for his disposition in January 1985, and that he was treated by a behavioral health specialist in March 1985. The Veteran’s records, post-September 1983 show that he was involved in another fight, had unexcused absences, and failed to show up to scheduled appointments, such issues were not shown prior to 1983. The Veteran did not endorse any such symptoms on an examination conducted just prior to his separation. The Veteran’s post-service medical records do not show treatment for the claimed residuals until 2015, which is the earliest year that such records are available in the Veteran’s case file. The Veteran’s medical records include his frequent complaints of headaches. The Veteran was afforded a VA examination in November 2014 to address the nature and etiology of his claimed TBI residuals. At the examination, the Veteran reported his 1983 bicycle accident and indicated a loss of consciousness for 30 minutes. The examiner did not endorse any typical symptoms associated with a TBI or TBI residuals. The examiner noted that neuropsychological testing showed inconsistent and implausible results with unusual error patterns inconsistent with memory testing. The examiner observed that the Veteran’s testing was inconsistent with his functional independence including his work at a full-time job. The examiner casts doubt on the Veteran’s claim noting excellent results in one area of testing, but inconsistent results in another, and concluded that the results should be interpreted with caution and finding that the Veteran was unlikely experiencing residual TBI symptoms. It is not apparent that the examiner considered the Veteran’s lay statements regarding the symptoms he and others have attested to have observed since his twin 1983 injuries. Moreover, the examiner did not completely rule out that the Veteran’s professed symptoms were a result of TBI residuals, only finding that it was unlikely and not less likely than not. Additionally, they did not discuss how the Veteran’s results were inconsistent with those of a “typical” person suffering from TBI residuals. Consequently, the Board accords no probative value to the opinion. In contrast are the statements submitted by the Veteran, his wife of 37 years, and a colleague from the military. His wife indicated that she observed a drastic personality shift following his in-service injuries noting that he would become angry over seemingly insignificant things and suffered from depression. She also noted that he began to suffer from headaches that would occasionally debilitate him. His wife also noted symptoms related to memory, citing times when he would forget important events or even where their house is located. His military colleague noted working with the Veteran for several years at the Army Core of Engineers, who observed the Veteran to be a bright and hard-working individual but that he was held back due to anti-social behavior and frequent outbursts. He also endorsed problems of memory, specifically noting times when the Veteran would forget his work schedule. Finally, it was noted that the Veteran suffered from issues related to poor decision making. The Board finds that the above discussed lay statements establish the nexus element. Specifically, the statements provided a history of the in-service injuries (along with their documentation in the Veteran’s service treatment records), and he and his Wife stated that the residual symptoms were noticed shortly thereafter. As noted above, the Veteran’s claimed residual symptoms are disabilities capable of lay observation, which includes as to the date of onset. As the Veteran and his wife stated that he experienced these symptoms during his active service and has continued to experience such conditions since that time, and the Board has no reason to doubt his credibility, the nexus criterion is satisfied. In sum, and resolving all doubt in the Veteran’s favor, the Board finds that his current residual symptoms had their onset during his active duty service. Therefore, service connection for tinnitus is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel