Citation Nr: 21014443 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-04 039A DATE: March 12, 2021 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the credible evidence is against both a finding that the Veteran sustained a TBI during service and that the Veteran has residuals of a TBI. CONCLUSION OF LAW The criteria for entitlement to service connection for TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1997 to May 2007. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was appealed to the Board in November 2018, and a remand was issued sending it back to the RO for further proceedings including a VA examination. A VA examination was conducted in October 2019, and a supplemental statement of the case was issued in July 2020. The Board is satisfied there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matter now returns to the Board for further proceedings. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Entitlement to service connection for residuals of a TBI The Veteran contends that he experienced a TBI in service and he has residuals. Specifically, the Veteran reported that during his deployment to Iraq in 2005, he was exposed to a blast explosion from a mortar round. He has reported experiencing dizziness, headaches, poor concentration, memory loss, seizures, and anxiety in association with these injuries. See October 2019 VA examination report. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for residuals of a TBI. The reasons follow. As to evidence of current disability, the preponderance of the evidence is against a finding of a current disability of residuals of a traumatic brain injury. The October 2019 VA neurologist stated that he could not establish a diagnosis of TBI. The neurologist explained that, despite the Veteran’s contentions that he had a history of seizures, there was no EEG report that established a seizure diagnosis in the record. In fact, the examiner noted that diagnostic imaging of the head and brain throughout the record showed normal findings including a June 2014 CT scan, January 2015 EEG, and 2020 MRI. Indeed, the Veteran denied a history of seizures in February 2013 and January 2016. Additionally, VA treatment records in December 2012 and February 2013 noted no seizures. Though the Veteran’s wife believed he had a seizure in January 2015, the EEG performed at that time was normal, and the Veteran denied a history of seizures in January 2016. The October 2019 VA neurologist also pointed to the Veteran’s Mini-Mental State Examination score of 29/30 as evidence against current residuals from a TBI. The VA neurologist further noted that while there was evidence of treatment for headaches in the record, there was nothing to suggest the headaches were linked to a TBI, and offered that headaches could have been caused by the Veteran’s ear, nose, and throat issues. The October 2019 VA neurologist also recognized that the Veteran had denied a head injury, dizziness, headaches, and memory complaints in a 2007 Report of Medical History, which are facts that the Board finds are accurate and will address such facts below. The October 2019 VA neurologist’s findings are given great probative weight as they are based on a thorough review of the record, and the VA examiner provided a rationale for his opinions. This is evidence against the Veteran having residuals of a TBI. A January 2013 VA neurologist also concluded after a thorough evaluation of the Veteran that it was not likely that the Veteran had a TBI. He explained that the initial incident reported by the Veteran was relatively mild and that he was “back to normal” within five to 10 minutes and did not seek medical attention. The neurologist added that most of the Veteran’s current physical symptoms came on one to two years after the alleged incident and had progressively worsened, which did not fit the temporal profile for a TBI. While the examiner found that the Veteran sustained a head injury in service because he believed the Veteran’s account of a head injury, which the Board finds did not happen, which it will explain in detail below, this opinion is still probative, as the examiner, even accepting the allegation of a head injury, did not find that the Veteran had a current disability related to the alleged head injury. The examiner explained that the Veteran’s symptom picture did not fit the temporal profile of a TBI. The Board finds this opinion probative as to whether the Veteran has a current disability related to a TBI, as the examiner provided a rationale for the conclusion that the Veteran’s symptom picture did not correspond with a TBI. This is additional evidence against a finding that the Veteran has a current disability related to a TBI. The Board notes there is some evidence in the file suggesting a finding of a current disability of residuals of a TBI. However, this evidence is outweighed by other evidence in the record, including the January 2013 and October 2019 opinions provided by neurologists. The Veteran had a positive TBI screen in September 2008, but it was followed up by a negative TBI screen one day later. The Veteran also screened positive for TBI in November 2014 and March 2016. May 2014, November 2014, and December 2014 VA treatment records showed the Veteran was being treated for migraines. Most notably, during an August 2014 TBI second level evaluation, the Veteran’s treating doctor stated the Veteran’s injury history and course of clinical symptoms were consistent with a diagnosis of TBI sustained during his deployment. The Veteran underwent a TBI/Polytrauma Individualized Rehabilitation/Reintegration Plan of care that ended in December 2014. However, these findings were based entirely on the Veteran’s own reporting of symptoms, and these reports are not consistent with either clinical findings in the medical record or the Veteran’s own statements documented in service treatment records. As noted above, diagnostic imaging and testing of the Veteran’s head and brain throughout the record showed negative findings. Additionally, statements made by the Veteran about the alleged TBI incident prior to filing his TBI claim told a different story. For example, in May 2008, the Veteran reported he did not sustain any “physical wounds” during the 2005 mortar attack, which would indicate he did not sustain a head injury at that time. Instead, he reported that the blast caused immediate onset of hearing loss and tinnitus. In a detailed September 2008 statement about the 2005 mortar attack, the Veteran did not mention sustaining a head injury or loss of consciousness. In fact, he claimed that after the blast, he “immediately noticed a Marine down and rushed over to him” and attempted to calm him and stop the bleeding from the injury the fellow servicemember had sustained. In a September 2008 VA treatment record, a TBI screening shows that in response to, “Has the veteran already been diagnosed as having TBI during [] deployment,” the examiner responded, “No.” The examiner added that the Veteran denied “experiencing any TBI-related events during deployment.” This is consistent with service treatment records (STRs), including the April 2007 Report of Medical History that the Veteran completed near service discharge, which will be described in more detail below. The combination of the normal diagnostic imaging findings, the Veteran’s own statements that he did not sustain a TBI or head injury while still in service, and the findings and opinions of the January 2013 and October 2019 VA neurologists weigh against the positive TBI screens, reports of seizures, and migraine headaches in the record, which, again, are based on the Veteran’s self-reporting. The Board finds that the preponderance of the evidence is against a current disability involving residuals of a TBI. Even if the Board conceded some evidence of a current disability, the Board finds as fact that there was no disease or injury during service involving a TBI. The Veteran contended he was exposed to a blast explosion from a mortar round in service in 2005. The Board observes that an October 2008 Memorandum reflects that the Veteran served in Iraq and that Camp Blue Diamond, where he was stationed, was subject to mortar attacks from 2003 to 2005. However, the Veteran’s STRs do not document complaints, symptoms, diagnosis, or treatment for TBI. The STRs explicitly mentioned no evidence of head injury in April 2006, January 2007, April 2007, and May 2007. In an April 2007 Report of Medical History, the Veteran specifically denied a history of dizziness or fainting spells, frequent or severe headaches, head injury, memory loss, amnesia, paralysis, seizures, convulsions, epilepsy, period of unconsciousness or concussion, and other neurological problems. He reported a positive history of other medical symptoms, such as chronic cough, sinusitis, hay fever, hearing loss (consistent with May 2008 statement), kidney stones, etc., which means he read through the symptoms and checked “yes” those that he had experienced and “no” to those he had not experienced, which included the head injury, a period of unconsciousness or concussion, and headaches. In this document, the Veteran certified the truth of such facts. The Board accords these in-service reports of his medical history high probative value, as statements made contemporaneously with the time period in question tend to be highly reliable. These facts show that the Veteran did not experience a TBI in service. There is some evidence in the STRs that the Veteran reported and was treated for headaches. However, the STRs show evidence of headaches and treatment for headaches in 1998, which was about seven years prior to the alleged TBI. Further, a January 2013 VA neurologist stated it is less likely than not that the Veteran had a TBI, as the initial incident was relatively minor, and the Veteran had described himself as being “back to normal” in five to 10 minutes and did not seek medical attention. The January 2013 VA neurologist noted the Veteran’s symptoms did not fit the temporal profile of a TBI, as the physical symptoms he was experiencing at that time came on one to two years prior to the 2012 examination and have progressively worsened. Accordingly, the preponderance of the evidence is against a finding of complaints or symptoms related to TBI during service, and the in-service disease or injury element is not met. The Board is mindful of 38 U.S.C. § 1154(b), whereunder the in-service element of a service-connection claim may be relaxed in the case of a Veteran who has asserted service connection for injuries incurred in combat. Thereunder, VA shall accept satisfactory lay or other evidence as sufficient proof of such injuries in service, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b). The Veteran’s DD Form 214 documents his military occupation specialties (MOSs) of electronic maintenance technician and ground radio intermediate repairer. The Veteran is not in receipt of an award or decoration indicative of combat. For example, the Veteran is in receipt of the Rifle Sharpshooter Badge, Pistol Sharpshooter Badge, Marine Corps Good Conduct Medal, Iraq Campaign Medal, Sea Service Deployment Ribbon, Global War on Terrorism Service Medal, Global War of Terrorism Expeditionary Medal, Nave Meritorious Unit Commendation, Navy Unit Commendation, Navy Presidential Unit Citation, and the National Defense Service Medal, Certificate of Appreciation, none of which evidence the Veteran having engaged in combat with the enemy. The Veteran contended he is a combat Veteran in a February 2021 brief from the Veteran’s representative. The Veteran reported in a November 2008 VA examination that he was deployed in a combat zone for two tours in 2003 and 2006 that lasted 6-9 months each. His DD Form 214 shows he received combat training. He reported to a January 2013 VA examiner that he was involved in multiple combat situations involving high levels of threat and was under fire from the enemy on multiple occasions during his two tours in Kuwait and Iraq. However, there is a difference between engaging in combat and serving in a general “combat area” or “combat zone.” See VAOPGCPREC 12-99. A finding that the Veteran engaged in combat with the enemy requires evidence that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general “combat area” or “combat zone,” but did not themselves engage in combat with the enemy. Id. Here, the Veteran’s DD Form 214 and the service personnel records do not document that the Veteran engaged in combat with the enemy. Thus, while he may have served in a combat zone, the preponderance of the evidence is against a finding that the Veteran engaged in combat while serving in Iraq. The preponderance of the evidence is also against a nexus between a current disability and service. For example, the Veteran denied dizziness or fainting spells, frequent or severe headaches, head injury, memory loss, amnesia, paralysis, seizures, confusions, epilepsy, period of unconsciousness or concussion, or other neurological problems in April 2007 STRs. Additionally, the Veteran did not report onset of seizures until January 2015, which was about eight years following service discharge, and tends to establish that a TBI did not have its onset in service. In an October 2019 VA examination report, the neurologist opined that that the Veteran’s claimed residuals of TBI was less likely than not related to or otherwise incurred in service, explaining that the Veteran’s service records did not support a finding of TBI. A January 2013 VA neurologist noted it is less likely than not that the Veteran had a TBI, as the initial incident was relatively minor, and he did not seek medical attention. The January 2013 VA examiner noted the Veteran’s symptoms did not fit the temporal profile of a TBI as the physical symptoms he reported came on one to two years after the alleged incident and had progressively worsened. These opinions establish either that the Veteran does not have residuals of a TBI or that the symptoms he was experiencing are not related to service. To reiterate, the Board finds as fact that the Veteran did not sustain a TBI and/or head injury in service, as he specifically denied such fact in the April 2007 Report of Medical History, which the Board finds is highly probative as to what the Veteran experienced or did not experience during service. The Board has considered the Veteran’s contentions of a TBI in service with subsequent residuals and finds them to be not credible. The Veteran’s contentions are contradicted by his own statements elsewhere in the record and objective medical findings. For example, in a detailed September 2008 letter describing the mortar attack, the Veteran did not mention that he sustained a head injury or was unconscious, but did state he “immediately…rushed over” to help calm and care for an injured fellow servicemember. See September 10, 2008 Correspondence. This does not support a TBI with a loss of consciousness. This report is consistent with a version of the events he relayed to a VA examiner in May 2008. It is also consistent with a September 2008 treatment record that noted the Veteran denied experiencing a TBI in service and the April 2007 Report of Medical History that the Veteran completed near the end of his period of active duty and after the 2005 mortar attack. After the Veteran filed his claim for service connection for residuals of TBI, his story changed. For example, in February 2013 and April 2013 treatment records, it shows he reported he became unconscious. In a May 2013 telling of the events, the Veteran told a VA examiner he was dazed when he woke up and did not know what was going on. In a February 2015 version of the incident, the Veteran stated he was unconscious for under 10 minutes and was carried to a safe area and slapped in the face until he regained consciousness. These versions of the story are plainly inconsistent with September 2008 version of the events where he stated he “immediately…rushed over” to aid a fellow servicemember. They are also inconsistent with the Veteran’s statements in the April 2007 Report of Medical History, where he denied a history of dizziness or fainting spells, frequent or severe headaches, head injury, memory loss, amnesia, paralysis, seizures, convulsions, epilepsy, period of unconsciousness or concussion, and other neurological symptoms. More recently, the Veteran told the October 2019 VA neurologist that his seizures are clustered where he could have one to two seizures in a day and then several days would pass by before he had another set of seizures. The preponderance of the evidence in the record is against such frequent seizures. A July 2020 MRI of the brain showed unremarkable findings and there is no evidence the Veteran is taking any seizure medication. This evidence all weighs against the Veteran’s contentions that he had a TBI in service with subsequent residuals. In sum, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for residuals of a TBI. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton 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.