Citation Nr: 21015361 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-30 299 DATE: March 17, 2021 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is granted. FINDING OF FACT Residuals of a TBI were incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from March 1985 to March 2006 and is a Veteran of the Gulf War Era. This matter returns to the Board of Veterans’ Appeals (Board) after its October 2019 remand for additional development by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). The Veteran, along with his wife and representative appeared for a videoconference Board hearing on March 3, 2017 (Board Hearing) at which time the Veteran and his wife provided testimony concerning this matter. A copy of the Board hearing transcript is attached to the Veteran’s file. 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI) The Veteran asserts that he suffers from the residuals of several TBI incidents he endured while in service. Specifically, the Veteran identifies the first and primary TBI event to be a 1991 in-service incident where he was hit on the head by a moving turret, knocking him to the ground. He required stitches to his head from that incident. He suffered neck injury due to that incident as well. The Veteran also claims multiple instances and the cumulative impact from numerous IED blasts and mortar and rocket attacks while he was in Iraq. He claims that he started getting frequent headaches and experienced loss of memory and a slowing of his thought processes and that he sought treatment while in service. VA concedes that the Veteran has been diagnosed with TBI and what is described as tension headaches. However, the TBI diagnosis relates to a post-service January 2010 work incident. In this injury, the Veteran lost his balance and fell approximately 15 feet, hitting his head. That incident is not in dispute. The issue is whether the Veteran suffered from residual from TBI prior to this incident. VA also concedes that the Veteran was engaged in combat operations while he served in Iraq. Service connection may be established for disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran’s service records do record the 1991 incident which restate the facts as described by the Veteran and that he received emergency care to include stitches to his head. The Veteran thereafter sought medical attention in September 1992 for residuals related to that injury/indecent, which reported that he was told he had torn neck muscles, he stated he still felt pain when he turns his head, and that he experiences headaches. This was stated to be due to injury to his C1-C2 cervical disks – a neck injury. In a September 2001 report of medical history, the Veteran stated that he has 3-4 headaches a week for which he takes over the counter pain medication to relieve pain. The Veteran’s medical provider Dr. T.F. asserts that his in-service TBI incidents predisposed him to not only be likely to have the type of balance related injury he had in 2010 when he fell from a height, but that the earlier TBI incidents exacerbated the injury he later sustained in 2010 due to post-concussive syndrome from his military related TBIs. See Dr. T.F. letters dated October 6, 2010, and March 16, 2012. Dr. T.F., opined that the Veteran did sustain TBI from his in-service incidents. The VA examiners opined that the Veteran did not suffer residuals from TBI after the 1991 incident as there was no claim of loss of consciousness and no immediate effects noted in the incident medical treatment record. The VA examiners attributed the September 1992 complaints of pain and headaches as due to the then diagnosed C1-C2 disk displacement. Also relevant to the VA examiners was that the Veteran did not have a significant change in duty status after the incident. Therefore, they concluded that he did not suffer from any residuals from TBI while in service. After review, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran suffered at least one TBI while in service which resulted in adverse residual effects. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). First, it is well established that residuals from TBI are very often varied and inconsistent in the symptoms manifested, as well as often manifesting over varied periods time. Second, the Board finds the Veteran to be both competent and credible in his description of the TBI incidents he endured, both the single 1991 incident, as well as his reports of multiple blast impacts from IED’s, mortar, and rocket attacks while in combat in Iraq – the Veteran was awarded the Combat Infantryman Badge as evidence of his participation in actual combat. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). And though he is not a trained medical technician, the Veteran is competent to describe his symptoms which indicate manifestations of TBI– numerous reports of headaches after the 1991 incident and during his military service—which the Board also finds to be credible and highly probative. The Board finds the opinions of the VA examiners, while competent, to be of no more than equal probative value to the positive evidence of record. As the evidence is at least in relative balance in favor of the Veteran, the Board finds in favor of the Veteran and grants the claim for entitlement to service connection for residuals from TBI. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.