Citation Nr: 21015985 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-11 601 DATE: March 18, 2021 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. The Veteran failed to report to a scheduled examination without good cause shown. 2. Due to the Veteran’s failure to report for the examination, the evidence is insufficient to establish that his claimed TBI residuals are related to service or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for residuals of a TBI are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 2006 to December 2010, to include service in Iraq, with additional reserve service. This case comes to the Board of Veterans’ Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ). This case was previously remanded to the AOJ in December 2019, for additional development, including a VA examination, and was subsequently returned to the Board. The Veteran initially requested a Board hearing, but withdrew his hearing request in July 2019. The Board notes that on several occasions, the Veteran stated that he wanted to withdraw this appeal. See reports of general information dated in January 2020 and July 2020 documenting telephone calls with the Veteran. However, since he has not submitted a written withdrawal, the issue on appeal remains in appellate status. 38 C.F.R. § 20.205. 1. Service connection for residuals of a TBI The Veteran contends that he incurred a TBI in service, either due to head trauma (see VA outpatient treatment records dated in June 2011, July 2011, and April 2013) or due to proximity to artillery blasts while serving as a tank mechanic in Iraq (see VA outpatient treatment records dated in August 2013 and June 2017). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has current residuals of a TBI that began during service or are at least as likely as not related to an in-service injury, event, or disease. Initially, the Board notes that the Veteran’s established service-connected disabilities include migraines and posttraumatic stress disorder (PTSD), and governing regulation provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See 38 C.F.R. § 4.14. His service-connected migraines are manifested by headaches, and VA examiners have opined that his memory loss and poor concentration are symptoms of his service-connected PTSD. See reports of VA examinations in April 2012 and August 2017. In December 2019, the Board remanded the claim for an examination to determine whether the claimed TBI residuals began in service or are related to service or a service-connected disability, to include service-connected migraines. However, the AOJ was notified in January 2020 that the Veteran failed to report for the examination scheduled in conjunction with his claim. The Veteran cancelled his scheduled VA examination, and stated that he did not want to pursue this claim any longer. The Veteran was advised of his failure to report for his examination in the July 2020 supplemental statement of the case, and of the consequences of such failure. Neither the Veteran nor his representative has indicated the Veteran had good cause for missing the examination, nor have they requested that the examination be rescheduled. Service personnel records show that the appellant served in Iraq from October 2009 to August 2010, and his primary military occupational specialty (MOS) was track vehicle repairer. He was awarded the Iraq Campaign Medal with two campaign stars. In the Veteran's pre-discharge compensation claim in October 2010, the Veteran claimed service connection for multiple disabilities, but did not claim service connection for residuals of a TBI. He reported that his migraine headaches began in February 2010. His original claim of service connection for residuals of a TBI was received in May 2013. Service treatment records are negative for a TBI or a head injury. An August 2010 post-deployment note reflects that although the Veteran complained of other medical problems, and reported that he knew someone injured by an improvised explosive device (IED) blast, he did not report that he himself was near any blast or explosion. In an October 2010 post-deployment health re-assessment, the Veteran denied experiencing a blast or explosion (IED, rocket propelled grenade (RPG), land mine, grenade, etc.), a vehicular accident, any wound above the shoulders, a fall, or a head injury. In July and October 2010 reports of medical assessment, the Veteran did not report a history of TBI, head injury, or proximity to a blast, though he reported other medical conditions. The Board notes that some of the Veteran’s service treatment records are unavailable. In such cases, the Board has a heightened duty to assist and obligation to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply an “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In this case, neither the Veteran nor his representative contend that the Veteran had a diagnosis of TBI while in service. However, the Veteran’s lay assertions regarding a TBI were considered by his VA treatment providers. A June 2011 VA social work note reflects that the Veteran reported that during service in Iraq he had direct combat exposure (receiving rocket, mortar, and small-arms fire), but denied combat injury. In a TBI screening, he denied a prior diagnosis of TBI, and said he experienced the following during his OIF/OEF deployment: blast or explosion IED, RPG, land mine, grenade, etc. He did not report having any symptoms afterward, and the examiner stated that a TBI screen was negative. A July 2011 VA primary care note reflects that the Veteran complained of chronic frontal headaches related to head trauma during OIF, with a poor recollection of the event. He reported transient loss of consciousness and no seizures. The assessment was Army service in OIF 2009-2010 as a tank mechanic, combat seen with some closeness to blast/artillery/explosions that jarred his head. In April 2013, he reported a loss of consciousness in in 2009 while deployed in Iraq when he was hit on his face/head with a blunt object. The examiner noted that he had a scar above his right eyebrow, but the Veteran said he was not taken to the hospital or sick-bay. The diagnostic assessment was TBI. An August 2013 VA neurology consult by Dr. S. reflects that the Veteran complained of headaches and reported that he had a TBI in a 2010 blast. The diagnostic impression was post-traumatic chronic headaches rarely with and usually without migrainous features. In December 2013 and April 2014, Dr. S. diagnosed post-traumatic chronic headaches with infrequent migraines. By letters dated in October 2014 and May 2015, Dr. S. stated that the Veteran suffered a mild TBI while in active duty in 2010 resulting in post-concussion syndrome composed of persistent symptoms of chronic post-traumatic headaches with occasional migraine headaches, and difficulties with concentration, consistent with mild cognitive impairment. He stated that the Veteran served in the Army in OIF from 2009-2010 as a tank mechanic and was close to artillery blasts. The onset of his headaches were immediately after one of these close explosions that jarred his head and caused him to be dazed/confused at the time of the event without loss of consciousness, but he had had persistent headaches and problems with concentration ever since that blast in 2010. A June 2017 VA outpatient treatment record reflects that the Veteran reported two incidents causing TBI while he was in Iraq. The first involved an IED that blew up their convoy and knocked him unconscious, and the second was one in which a mortar blast occurred very close to him. If a Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of in-service incurrence satisfactory lay or other evidence, 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). Upon review of the record, the Board finds that service connection for residuals of a TBI is not warranted. Even considering the provisions of 38 U.S.C. § 1154 (b) and 38 C.F.R. § 3.304 (d) regarding injuries incurred during combat, the Board finds that the Veteran’s statements are not consistent with the medical records associated with the claims file or his own in-service reports regarding his health and therefore are found to be less credible than the contemporaneous evidence of record. In determining whether statements made by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). The Veteran did not claim that he had residuals of a head injury or a TBI related to service until the current VA disability compensation claim in 2013, and the Board finds such statements of lesser probative value when contrasted with the histories he previously provided. See Pond v. West, 12 Vet. App. 341 (1999). In this regard, the Board notes that service treatment records are negative for complaints or treatment of a head injury or TBI, that his occasional headaches in service were all related to unrelated medical problems, and that he has made conflicting statements about the number of claimed head injuries or explosions in service and about whether or not he lost consciousness in these incidents. He specifically denied experiencing a blast or explosion (IED, rocket propelled grenade (RPG), land mine, grenade, etc.) or a head injury in an October 2010 post-deployment health re-assessment. These inconsistencies reduce the credibility of his statements. The preponderance of the evidence weighs against finding that a head injury or TBI occurred in service, or that the Veteran has current residuals of a TBI. With regard to the positive nexus opinions by Dr. S., there is no indication that he reviewed the Veteran’s service treatment records. Instead, the statement appears to be based on the Veteran’s self-reported medical history, which is inconsistent with service treatment records that show that the Veteran denied experiencing a blast or explosion during his deployment. The Board finds that Dr. S.’s medical opinion was based on an inaccurate factual premise, and thus the probative value of this opinion is greatly reduced. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “an opinion based upon an inaccurate factual premise has no probative value”). While the Veteran believes his current condition is related to an in-service TBI, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of interpretation of diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Moreover, the Veteran failed to report for the scheduled VA examination and did not provide any additional evidence to support his claim, despite bearing the burden to substantiate each element of his claim. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Here, due to the Veteran’s failure to report for the examination, the evidence is insufficient to establish that his claimed residuals of a TBI are related to service or a service-connected disability. Accordingly, service connection must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.