Citation Nr: 21011718 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-04 244 DATE: March 2, 2021 ORDER Service connection for residuals of a traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that a TBI and/or residuals thereof were incurred in or caused by an event or injury during service. CONCLUSION OF LAW The criteria for service connection for residuals of a TBI are not 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 November 2004 to April 2005, August 2006 to October 2007, and from January 2008 to May 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for development in July 2019 and the appeal has been returned to the Board for review. There has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board continues to recognize the American Legion as the Veteran’s current representative. In February 2019, the American Legion submitted an appellate brief. The Board provided The American Legion an additional opportunity to submit an appellate brief and in a letter received in November 2020. The American Legion declined, indicating that the appointment of The American Legion is in violation of the Board’s Rule of Practice, as no good cause has been shown for the Veteran’s previous change of representation. The Board waives the requirement that good cause be shown for the Veteran’s change of representation, as the Veteran has reasonably relied on The American Legion’s representation. The Board additionally notes that a representative of The American Legion executed the VA form 21-22 received in August 2018, indicating The American Legion as the authorized representative. As the Veteran’s current representative, The American Legion was provided with a recent opportunity to submit another appellate brief, thus VA has satisfied the duty to assist in this matter. In January 2011, after following proper procedures, the RO issued a Formal Finding on the Partial Unavailability of Service Records, determining that the Veteran’s U.S. Army active duty treatment records from June 2, 2004 to May 14, 2009, which includes all three of the Veteran’s period of active service beginning in November 2004 were unavailable for review. The Veteran was in the Army National Guard for six years beginning in January 2003 with the three periods of federal service noted above and in the Veteran’s 3 DD 214 forms of record. In cases where service records are unavailable, VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This does not mean that there is a heightened benefit-of-the-doubt rule or a heightened duty to assist. Rather, it means that VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing a claim, and to explain its decision when a veteran’s service records are not available. See Ussery v. Brown, 8 Vet. App. 64 (1995). The legal standard for proving a claim for service connection is not lowered. Instead, VA has a heightened obligation to evaluate and discuss in its decision all the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Herein, the Board finds that the Veteran was exposed to many improvised explosive device (IED) explosions in service and was diagnosed with a mild TBI following in-service exposure to an IED explosion and underwent inpatient treatment. Thus, the Veteran is not prejudiced by the partial unavailability of his service treatment records, as the Board acknowledges his in-service exposure to IED explosions and his in-service treatment for mild TBI diagnosis. The Board has nevertheless explained its findings and considered the benefit-of-the-doubt rule using the heightened obligation standard. The AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. The Veteran did not identify any private treatment records for his TBI. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection for TBI The Veteran contends that he is entitled to service connection for TBI. Specifically, the Veteran, through his representative, asserts that he is entitled to service connection for memory problems associated with TBI which were noted by the examiner in the November 2010 VA examination for psychiatric disabilities. The Board finds that there is no competent or credible medical evidence of a current TBI disability or residuals thereof within the appeal period, including the referenced TBI in the November 2010 psychiatric disabilities examination report. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1153; 38C.F.R. §§3.303, 3.304, 3.306. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s DD Forms 214 confirm that he was awarded a CAB. This is prima facie evidence of his combat service, meaning conclusive evidence he participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. §1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir.2004)). The question for the Board is whether the Veteran has a current TBI disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds that, based on the competent and credible medical evidence of record, that the Veteran does not have a current TBI disability or residuals thereof during the appeal period. The Veteran had a VA examination for TBI in October 2010. The examiner reviewed the Veteran’s records and conducted an in-person examination of the Veteran. The Veteran reported that that he was exposed to multiple improvised explosive device (IED) explosions during his periods of active service. He stated that none of these caused any loss of consciousness or posttraumatic amnesia. On a few occasions following IED explosion exposure, he felt dazed, but was always able to continue with his duties. He sometimes had had headaches for a few days afterward. The examiner found that while the Veteran currently had sleep, memory, attention, concentration, executive functioning, visual spatial ability and decision-making problems, he did not feel that the Veteran had a current TBI diagnosis. In an April 2011 addendum opinion, the VA examiner reiterated that although the Veteran states that he has difficulty with memory, attention, concentration, executive function, visual spatial problems, trouble with judgment, anxiety and restlessness, these are not related to a TBI. The Veteran had a VA examination for TBI in August 2014. The examiner reviewed the Veteran’s records and conducted an in-person examination. The examiner noted that the Veteran had had as many as 100 multiple blast exposures without loss of consciousness or memory loss. The examiner made a specific finding that the Veteran made no complaints of impairment of memory, attention, concentration or executive functions. The Veteran’s judgment was normal, his social interaction was found to be routinely appropriate, he was always oriented to person, time, place and situation, his motor activity, visual spatial orientation and consciousness were normal and he had no subjective symptoms or neurobehavioral effects and he was able to communicate by spoken and written language and to comprehend spoken and written language. The examiner found that the Veteran did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI, such as migraine headaches or Meniere’s disease. There were no other pertinent physical findings, scars, complications, conditions, signs and/or symptoms of a TBI. The Veteran had a VA examination for a TBI in January 2020. The examiner, a neurologist, reviewed the Veteran’s records and examined the Veteran. The examiner noted that the Veteran was exposed to multiple IED explosions during service and that he noted a very brief time gap, probably seconds when he became aware he was driving the one man vehicle he was in. The examiner noted that he reviewed the Veteran’s service treatment records from the particular incident the Veteran described, and he had a perfect Military Acute Concussion Evaluation (MACE) score and was noted to have not lost consciousness or to have had amnesia. The Veteran reported currently having fluctuating short- and long-term memory problems that he felt were worsening over time. The examiner assessed the facets of TBI-related cognitive impairment and subjective symptoms of TBI and found that there was a complaint of mild memory loss, attention, concentration or executive functions, but without objective evidence on testing. He noted that the Veteran complains of impairment of memory, attention, concentration or executive functions and summarized the complaint as problems that are intermittent and seem to be getting worse. The examiner found mildly impaired judgment and that the Veteran stated that at times he does not seem to want to make a decision. The examiner found that the Veteran’s social interaction is frequently inappropriate, in that he is very blunt in social interactions. The examiner found that the Veteran had one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them, namely that he has irritability, moodiness, verbal aggression, and lack of empathy that interferes with social interactions, and that he is currently unemployed. The examiner found that the Veteran’s orientation, motor activity, visual spatial orientation, communication and consciousness were normal, and he found no additional subjective symptoms. The examiner noted that the Veteran had no other pertinent physical findings, complications, conditions, signs or symptoms and that the Veteran scored a 30/30 on the mental status examination and that there were no other significant diagnostic test findings and/or results. The examiner then opined that although the Veteran was exposed to multiple IED explosions in service, none of these caused amnesia or loss of consciousness and therefore cannot be classified as residuals of a TBI. The examiner further stated that the Veteran’s cognitive and behavioral symptoms are more likely than not related to his mental health diagnosis. The Veteran, through his representative, states that the Veteran is entitled to service connection for residuals of a TBI because, according to the November 2010 VA examiner, the Veteran has memory problems associated with his TBI. The Veteran had a VA examination in November 2010 which was conducted for the purpose of determining whether the Veteran had any psychiatric disabilities. The examiner interviewed the Veteran, who informed him that he experienced some closed head injuries as a result of IED explosions and that upon his return to the United States, he was temporarily treated at Fort Jackson, South Carolina at a treatment facility that was an Army treatment program for returning soldiers with PTSD and other physical and mental health problems. The examiner then stated that the Veteran’s memory was intact, but he did have some occasional problems with word finding which seemed to be related to his TBI, the trauma he suffered related to IEDs. In evaluating the competency, credibility and probative weight of the November 2010 examiner’s statement that the Veteran had occasional word finding problems which seemed to be related to his TBI, the trauma he suffered related to IED’s, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current diagnosis of TBI or residuals thereof. There is no indication that the examiner performed a physical examination or any diagnostic tests to confirm the presence of a TBI, as the purpose of the examination was not to evaluate the Veteran for TBI. Instead, the statement appears to be based on the Veteran’s self-reported medical history. Consequently, the Board gives more probative weight to the October, November 2011, November 2015 and January 2020 VA examiners’ findings and opinions that the Veteran does not have residuals of a TBI. While the Veteran may believe that he has a current residuals of a TBI, and states that his memory problems have worsened and are caused by his in-service head injury and/or TBI, the Veteran is not competent to competent to diagnose TBI or residuals thereof. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 at 1377 (2007). TBI is a complex medical disability and the Veteran has not been shown to have the medical training to competently identify or report a contemporaneous medical diagnosis of TBI, nor has there been any competent and credible diagnosis of TBI by a medical professional. Although the probative evidence of record shows that the Veteran sustained an in-service head injury diagnosed in service as a mild TBI and the Veteran underwent in-service, inpatient treatment for such, there is no competent, credible, probative evidence that he currently has residuals thereof. (Continued on the next page)   Once again, the Veteran has had multiple VA examination for TBI. The Board finds the examination reports to be competent, credible and highly probative evidence regarding the issue of whether the Veteran currently has residuals or a TBI or residuals of an in-service head injury. Thus, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Service connection for TBI must therefore be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, 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.