Citation Nr: 21015037 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 11-24 254 DATE: March 16, 2021 ORDER Entitlement to service connection, to include on a presumptive basis for a traumatic brain injury (TBI) is denied. FINDING OF FACT The evidence of record does not reflect any diagnosed, undiagnosed, or other qualifying TBI disability during the period on appeal, or until years thereafter and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a TBI disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1977 to March 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2011 the Veteran participated in an informal conference with a Decision Review Officers (DRO). In August 2016, the Veteran failed to appear for a hearing for a Veterans Law Judge for which notice was provided in June 2016. Subsequently, the Veteran advised VA that he did not wish to reschedule the hearing. The appeal was last remanded by the Board in September 2019 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection, to include on a presumptive basis for a traumatic brain injury (TBI) The Veteran contends that he suffered a TBI during active duty service that is due to either or a combination of being poisoned, having a gas bomb go off in his hotel room, falling from a cliff, being near explosions, or being exposed to contaminated drinking water while stationed at Camp LeJeune during active duty service. In a February 1993 statement, the Veteran stated that he was poisoned, and his room was full of white smoke after spending the night with a woman in a hotel room in the Philippines in 1980. In an April 2009 statement, the Veteran again relayed that an incident occurred in the Philippines during service when he went to his hotel with a woman and at approximately 2am someone picked up the woman and placed a gas bomb in the hotel room while the Veteran was sleeping. The Veteran awoke to trouble breathing, itching, and pain and took a shower. In a March 2010 statement, the Veteran again described an incident involving a woman and a smoke bomb in a hotel in the Philippines. The Veteran also described another incident that he claims occurred in Japan in 1979 during which his food and drinks were poisoned at a restaurant, he was demanded to pay his bill twice, men threatened him with knives, and he ran from the restaurant and was fortunate to find the protection of a group of Marines. The Veteran added that from being traumatized by anti-American extremists, he felt that he lost a part of his brain. In an April 2010 statement the Veteran stated that he was injured by “training explosions, gas bombs, and chemicals in the water at Camp Lejeune.” The Veteran also asserted that contaminated water at Camp LeJeune caused him to lose part of his memory and to experience headaches. In an August 2016 letter withdrawing his hearing request after missing his hearing, the Veteran described problems affecting his brain including confusing dates, numbers, months, colors, and sometimes seeing things in reverse. 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. §§ 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to contaminated water at Camp Lejeune, a claimant must show the following: (1) that the veteran served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953 to December 31, 1987; (2) that the veteran had a disease associated with exposure to contaminants in the water supply at Camp Lejeune enumerated under 38 C.F.R. § 3.309 (f); and (3) that the disease process manifested to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307 (a)(7), 3.309(f). Factual Background A July 1980 service treatment record noted that the Veteran had a psychiatric consultation due to a situational disorder. An October 1980 service treatment record noted that the Veteran did not have evidence of psychosis, organic brain syndrome, nor disabling neurosis. An October 1980 separation examination noted that the Veteran had normal psychiatric, neurologic, and head, face, neck and scalp evaluations. An October 1980 report of medical history noted that the Veteran had no head injury, frequent or severe headaches, dizziness, or fainting spells, loss of memory or amnesia, nor periods of unconsciousness but that the Veteran did have depression, excessive worry, and a mental condition due to situational disorder. During the October 1980 separation examination and again in January 1981 and March 1981, the Veteran certified that he did not have any significant change in health, nor had he suffered any diseases or injuries since his last physical examination. A February 2009 VA treatment record notes that the Veteran had a car accident in 1980 and was unconscious for a few minutes. The record also notes that the Veteran reported playing football without a helmet. The record again noted the Veteran’s reports that during service his food and drink was poisoned while stationed in Japan and that a gas grenade was thrown into his hotel room in the Philippines. A December 2009 VA treatment record notes that the Veteran had a normal magnetic resonance imaging (MRI) of the brain. The Veteran submitted two buddy statements from his sisters in March 2010. The Veteran’s sisters both asserted that the Veteran informed them during his active duty service about the 1979 incident in Japan where he was poisoned and attacked and the 1979 incident in the Philippines where he was gassed. A June 2010 VA treatment record again notes the Veteran’s reports of being drugged while stationed in Japan and of a woman leaving a gas bomb in his hotel in the Philippines. A June 2010 VA treatment record notes that the Veteran had a mental disorder and cognitive difficulties. The record notes the Veteran’s reports of being involved with or hearing explosions during military training. The VA provider noted that it was possible that the Veteran had a TBI and recommended that a TBI evaluation be scheduled. A March 2011 VA treatment record notes the Veteran’s reports that he had no feeding to his brain during service and that he believed this caused his brain cells to die. The Veteran also requested medication to help “feed” his brain. An April 2011 VA treatment record from the neurology clinic noted the Veteran’s reports of no feeding to his brain and symptoms of numbness. The VA provider determined that the Veteran’s symptoms were abnormal did not “anatomically fit any specific distribution” and that electromyography (EMG) and reflexive performance reset (RPR) was nonreactive. The VA provider also noted that it was hard to discern whether the Veteran’s symptoms were psychiatric or medical concerns. The neurology clinic determined that it was unlikely it would be able to provide care to the Veteran. The Veteran was afforded an informal conference with a DRO in May 2011. The May 2011 DRO conference report notes that the Veteran testified that he had a head injury from a bomb explosion. A December 2011 psychiatric addendum opinion was obtained for the Veteran’s service-connected psychiatric disability. The addendum opinion stated, in relevant part: “There is no objective medical data supporting memory loss as a result of his exposure to Camp Lejeune’s contaminated water. Therefore, such assertions cannot be objectively documented.” A September 2012 VA treatment record again noted the Veteran’s reports of being poisoned in Japan and in 1978 or 1979 and of a “poison grenade” being placed in his hotel room in the Philippines. The record also noted that the Veteran was seen regularly by a psychiatrist and complained of trouble with his brain catching up when doing cognitive tasks which was possibly due to his sleep. The Veteran was afforded a VA examination in October 2013 for his service-connected psychiatric disability. The October 2013 VA examiner’s report noted that the Veteran did not have a diagnosis of a TBI. The report noted, “The Veteran reported a series of events that are consistent with paranoid delusions. There is no evidence of these events and they are not consistent with a realistic view of the world.” The report then went on to note the Veteran’s reports of being poisoned while stationed in Japan and having a gas bomb go off in the Philippines. The report also noted the Veteran’s complaints that he was subsequently stationed at Camp LeJeune were he claimed he started acting strange and felt his brain was dying and not feeding. The Veteran was also afforded a VA examination for his TBI in October 2013. The examiner again noted that the Veteran did not now have or ever have a TBI or any residual of a TBI. The Veteran reported he had three concussions during military service. First, he claimed that in 1979 while stationed in Japan he fell eighteen feet off a cliff landing on the side of his head with loss of consciousness for up to a few minutes. Next, the Veteran reported being involved in a motor vehicle accident in December 1980 and again experienced loss of consciousness for up to a few minutes. Third, the Veteran reported that in February 1979 while playing football in Japan, he fell hitting the back of his head on the ground and again lost consciousness. The examiner determined that the Veteran’s TBI was less likely than not (less than 50/50 probability) caused by or related to the reported injury in service because there was no evidence to support that the Veteran suffered a TBI while in the military. A November 2013 VA treatment record notes the Veteran’s complaints of an injury that gave him “stress to the brain.” A January 2014 VA treatment record documents the Veteran’s reports of fear around water due to his experience at Camp LeJeune and that when he was recently stressed, he felt as if his brain was having pinches. An August 2016 VA treatment record again notes the Veteran’s reports of being poisoned and gassed and that he had sensations of his brain not feeding and his memory not working. Another MRI was conducted in September 2016 which revealed paravertebral and presumed mild microangiopathy. An October 2016 VA treatment record noted that the Veteran admitted having audio and visual hallucinations and claimed to have schizophrenia, and that the Veteran reported he had head injuries while in service that resulted in concentration deficits. A November 2016 VA treatment record notes that the Veteran had a positive TBI screen. A November 2016 VA treatment record notes that the Veteran had memory problems and a history of TBI. The record documents the Veteran’s reports that in 1978 while stationed in Japan he fell eighteen feet and lost consciousness for a few minutes. The Veteran also reported that he was dizzy and disoriented for a week and that his brain did not feel well. The Veteran further claimed that he was diagnosed with schizophrenia and memory problems at that time. The Veteran also reported injuring his left leg during the fall. The Veteran was afforded another VA examination in November 2016. The November 2016 VA examiner again determined that the Veteran’s claimed TBI was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that there was no evidence in the service treatment records to confirm that the Veteran sustained a TBI as claimed. The VA examiner also noted that on the October 1980 report of medical history the Veteran answered “no” to a history of head injury, loss of consciousness, and memory issues despite his allegations of suffering two TBIs prior to this date. A February 2019 VA treatment record again notes the Veteran’s reports of being poisoned in Japan and the Philippines. The Veteran was afforded another VA examination in April 2020 related to his assertion that his TBI was caused by contaminated water at Camp LeJeune. The VA examiner noted that the Veteran was stationed at Camp Lejeune from June 1979 to March 1981 for a total of approximately 649 days. The examiner noted a diagnosis of headaches and memory loss from TBI but determined that the claimed conditions were less likely as not (less than 50/50 probability) caused by or a result of the Veteran’s exposure to contaminated water at Camp Lejeune. The examiner cited to medical literature that identified fourteen disease conditions with limited or suggestive evidence of an association with the toxins in the chemical water at Camp Lejeune, the conditions included: esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, adult leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage (with exposure during pregnancy), scleroderma, and neurobehavioral effects. Notably, TBI was not listed. The examiner also noted but did not address the Veteran’s reports that his TBI may have also been caused by injuries, explosions, or being poisoned or gassed. The Veteran was afforded another VA examination in December 2020. The VA examiner determined that the Veteran did not now have nor ever had a TBI or any residuals of a TBI. The VA examiner noted that there was a lack of supportive evidence supporting the Veteran’s claim of having suffered a TBI while in service. The examiner noted the Veteran’s allegations of 1) launching weapons from his shoulder which made him feel dizzy, unbalanced, and foggy; 2) experiencing blunt trauma to the head with loss of unconsciousness for under a minute while playing football in Japan in 1979; 3) falling eighteen feet off a cliff which caused him to lose consciousness and to have a concussion; 4) being assaulted in 1979; and 5) being in a motor vehicle accident in 1980 which caused him to lose consciousness and become disoriented, dazed, and dizzy. The examiner concluded that the Veteran’s TBI “was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” Analysis As previously mentioned, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a TBI disability during the pendency of the appeal. October 2013, November 2016, and December 2020 VA examiner’s reports all note that the evidence does not support that the Veteran ever had a TBI. While VA treatment records note that the Veteran may have had a TBI, these records indicated that further evaluation was necessary. Moreover, December 2009 and September 2016 VA treatment records note MRI results did not support a TBI. The U.S. Court of Appeals for Veterans Claims has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board must deny the claim for lack of a TBI disability. However, even if the Veteran did have a current TBI disability, service connection must still be denied for lack of a nexus. The Board emphasizes that the Veteran has been diagnosed with several psychiatric disabilities including major depressive disorder and schizophrenia. The Veteran reports a TBI caused by explosions, an eighteen-foot fall, a football injury, a motor vehicle accident, a poisoning in Japan, and a gassing in Philippines. However, these reports are not supported by objective medical evidence. STRs are silent for any treatment related to any such injuries, including other injuries incurred during these alleged incidents such as the leg the Veteran claims was injured as a result of his eighteen-foot fall from a cliff. There are simply no service treatment records or military personnel records to support the incidents reported by the Veteran. As stated in the October 2013 VA examiner’s psychiatric report, “[t]he Veteran reported a series of events that are consistent with paranoid delusions. There is no evidence of these events and they are not consistent with a realistic view of the world.” The Board acknowledges that the Veteran’s sisters submitted statements in March 2010 informing the Board that during service the Veteran told them about the assaults in Japan and the Philippines. However, the Board emphasizes that these statements were based on the Veteran’s statements to them. The Board also emphasizes that the Veterans service treatment records and military personnel records indicate that the Veteran had a psychiatric disability that resulted in his early discharge from service. The Board finds that the Veteran’s reports of a TBI due to explosions, an eighteen-foot fall, a football injury, a car accident, a poisoning in Japan, and a gassing in Philippines lack credibility as it is not facially plausible that the Veteran suffered any of these injuries without any complaints, treatment, or diagnosis for such being documented in the Veterans treatment records. In addition, since the March 2010 statements from the Veteran’s sisters are based upon reports by the Veteran which lack credibility, the Board also affords low probative value to the March 2010 statements. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Instead, the Board affords greater probative value to the October 2013, November 2016, April 2020 and December 2020 VA examiner’s reports which unanimously determined that the Veteran’s claimed TBI was not related to service. The October 2013, November 2016, and December 2020 VA examiner’s reports addressed whether the Veteran had a TBI from the Veteran’s claimed injuries during service, but each unanimously determined that the Veteran did not have a TBI and alternatively that any TBI was not etiologically related to service. The October 2013, November 2016, and December 2020 VA examiner’s findings are consistent with the Veteran’s service treatment records which are silent for any complaints, treatment, or diagnosis of TBI and with the October 1980 separation examination and report of medical history which note that the Veteran did not have a head injury. The only evidence to support the Veteran’s contentions that he incurred a TBI during service are the lay statements from the Veteran and his sisters which have been found to lack credibility. Moreover, the December 2011 VA examiner’s report addressing the Veteran’s psychiatric disability and the April 2020 VA examiner’s report addressing the Veteran’s claimed TBI both determined that no nexus between the Veteran’s claimed TBI and exposure to contaminated water at Camp Lejeune could be established. Both reports noted that medical data or medical literature did not support a finding that contaminated water at Camp Lejeune could cause a TBI. The April 2020 VA examiner cited to a list of fourteen medical conditions that have been found to be related to contaminated water exposure at Camp LeJeune, however, TBI was not on the list. In sum, the record does not contain probative lay or medical evidence sufficient to establish diagnosis nor a medical nexus between the Veteran’s claimed TBI and his military service. The preponderance of the evidence is against the claim. Accordingly, service connection for a TBI must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.