Citation Nr: 21015735 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-54 046 DATE: March 18, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is granted. Entitlement to service connection for headaches, to include as secondary to a TBI is granted. FINDING OF FACT 1. The Veteran has a TBI that was incurred in or due to his time in service. 2. The Veteran has headaches that are proximately due to his now service-connected TBI. CONCLUSION OF LAW 1. The criteria for service connection for a TBI are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a headache disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April to August 1982 and from March 1985 to May 1992. The Veteran had a hearing before the undersigned Veterans Law Judge in October 2019. A transcript has been associated with the file. These matters were previously before the Board and were remanded in January 2020 for further development. The development has been completed and the matters are again before the Board. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Veteran. App. 247 (1999); Veteran v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Veteran. App. 439 (1995) (en banc). The Veteran said that during combat in Desert Storm, he was preparing ammo to be fired and an artillery round came up and popped him by his eye and knocked him unconscious. The Veteran said that since, he has had headaches. The Veteran reported when he regained consciousness, he came to in the back of a vehicle and a medic came to patch his eye up. The Veteran reported blurry vision and memory problems with daily headaches. (See e.g. October 2019 hearing transcript.) The evidence is not clear as to whether the Veteran has a diagnosed TBI and whether it was incurred during his time in service. The Veteran has been diagnosed with headaches. However, the evidence is also split on whether those headaches were due to the Veteran’s time in service. The Veteran’s service treatment records (STRs) do not show any diagnosis or treatment for a head injury, eye socket injury, or headaches. The records do indicate the Veteran was seen for traumatic iritis and right eye trouble. (See January 1990, July 1991 STRs.) Several medical treatment records note that the Veteran had a concussion and a TBI in service. However, these records do not appear to be based on a review of the Veteran’s record, but rather the Veteran’s self-report of such. (See e.g. March 2014 medical treatment records.) The Veteran’s treatment records do frequently show the Veteran having a history of headaches. A March 2014 treatment record noted the Veteran had been diagnosed with post-concussive headaches. A September 2019 statement from the Veteran’s wife regarding his sleep apnea said that the Veteran would wake up with headaches most mornings. In February 2014, it was noted that the Veteran had headaches, but the examiner also noted he was “not confident headaches are related to TBI,” A July 2014 PTSD examiner noted the Veteran had been diagnosed with a TBI and said the Veteran’s symptoms of headaches are likely attributed to the TBI. However, the examiner also noted the Veteran’s mild TBI had not been found to be associated with his time in service. The Veteran had a Gulf War examination in October 2014. The examiner reported the Veteran did not have any diagnosed illnesses with no etiology, no multisymptom illnesses, and said that the Veteran did not have “any condition” that was “attributable to Gulf War syndrome.” In March 2015, an examiner opined the Veteran “sustained TBI with his passageway injury as he has had headaches and vertigo ever since (post concussive), he has the large scalp scar, and he likely lost consciousness and he has had memory and psychological problems since the head injury all of which are consistent with a TBI.” This examiner said he did a history and physical on the Veteran and reported the Veteran had a serious TBI in service, but did not refer to any objective evidence of such. The examiner opined it was very likely the Veteran’s headaches were secondary to his TBI. The Veteran had an examination for his TBI in September 2020. The examiner saw the Veteran in person and reviewed his file. The examiner opined the Veteran did not currently have and has never had a diagnosed TBI. The examiner considered the Veteran’s statements about how he had an injury while in service that knocked him unconscious and that he also had a right eye socket injury. The examiner also took note of the Veteran’s current symptoms, which included headaches that he has had since his injury, feeling irritable, and has difficulty concentrating. The examiner noted that in 1991, there was a notation of the Veteran being treated for traumatic iritis in July 1991 after playing basketball and that the Veteran was also treated in January 1990 for a finger to the eye while playing basketball. The examiner did not find further evidence of an in-service injury that caused the Veteran to lose consciousness or being dazed. The examiner also opined it was less likely than not the Veteran’s TBI was incurred in or caused by his time in service, saying there was no documentation to show the Veteran’s TBI was related to him being hit by a piece of artillery ammo while in service. The examiner also opined it was less likely than not the Veteran’s TBI was proximately due to his service-connected disabilities. Here, the examiner noted the Veteran was diagnosed in 2014 with a TBI based on his reports of an in-service injury, causing loss of consciousness in 1991. Another note in the Veteran’s record says that this occurred in 1988 in Germany. The examiner reviewed the Veteran’s file and found not documentation of this sort of injury. The examiner concluded after a review of the Veteran’s record, including the previous 2014 examination, that the Veteran’s headaches were less likely than not due to the Veteran’s claimed TBI. The Veteran had an examination for his headaches also in September 2020. The examiner reviewed the Veteran’s file and noted the Veteran had been diagnosed with tension headaches in February 2014. The examiner considered the Veteran’s statements that his headaches started in 1991 in service when he was hit with an ammo carrier near his right eye. The Veteran said he was seen by a medic who told him he had an orbital fracture while in the field, but remained there for nine more months. The Veteran reported he still got frequent headaches. The Board notes the Veteran has reported his injury occurred during combat and therefore, the Board understands it would be unlikely that such an injury would be noted in his STRs. However, the Board also notes that the Veteran separated from service in 1992 and the first reports of treatment of a TBI and headaches is not noted for several decades after his separation. The Board has considered all of the conflicting evidence of record. The Board finds the Veteran competent and credible to state what happened to him while in service. While the Veteran is not competent to diagnose himself with a TBI, the Board finds there is sufficient evidence in the file by medical professionals diagnosing him with such to find the Veteran carries such a diagnosis. Thus, the Board finds the evidence to be at least in equipoise with evidence showing the Veteran’s TBI was incurred during his time in service and his headaches are secondary to his TBI and will grant the claims. In this case, the Veteran has been given the benefit of the doubt. The nature and extent of the problem is not before the Board currently. In this regard, it is very important that the Veteran provide accurate information regarding the nature and extent of any problem. Suggestions of embellishment could impact all claims and the Veteran’s overall disability evaluation. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.