Citation Nr: 21022204 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-15 166 DATE: April 15, 2021 ORDER Entitlement to service connection for residuals of facial and head trauma, diagnosed as traumatic brain injury (TBI) with migraine headaches and right eye scar, is granted. REMANDED Entitlement to a rating in excess of 10 percent for service-connected callus of the left foot is remanded. FINDING OF FACT The Veteran’s residuals of facial and head trauma, diagnosed as TBI with migraine headaches and right eye scar, are attributable to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of facial and head trauma, diagnosed as TBI with migraine headaches and right eye scar, have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.304 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1977 to September 1981. This matter was initially before the Board in June 2018, where it was remanded for additional development. Specifically, the Board determined that the Veteran should be afforded VA examinations for residuals of facial and head trauma, as well as his left foot disability. Entitlement to service connection for residuals of facial and head trauma. The Veteran appeals the denial of service connection for residuals of facial and head trauma. He contends that he sustained a head injury during service when he was assaulted by a group of men. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In March 2019, the Veteran was afforded a VA examination. The examiner reported that the Veteran was diagnosed with migraine including migraine variants in 1978. The examiner opined that based on a review of the Veteran’s treatment records, his TBI with chronic headaches was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. In regard to the residuals of his TBI, the examiner reasoned that “although his head injury is not indicated in his medical records, he has been consistent in reporting a TBI related chronic headaches problem since the assault in 1978.” She stated that “[t]he Veteran continues to meet criteria upon today’s exam for a TBI, which is at least as likely as not due to the assault that occurred during service.” Additionally, the examiner opined that the Veteran’s right eye scar is at least as likely as not related to service. The AOJ returned the examination report of an addendum opinion noting factual discrepancies in the Veteran’s account of circumstances surrounding the injury and instructing the examiner that “[a] statement by the Veteran alone is not enough to concede the incident occurred.” The Board notes that there is no corroboration requirement pertaining to whether the assault incident occurred as claimed for a general service connection claim – it is a simple factual determination as to whether the Veteran’s version of events is credible or not. In an August 2019 VA opinion, the examiner stated that the Veteran’s residuals of scarring and headaches are less likely than not related to service. The examiner relied solely on the lack of treatment records in rendering the negative nexus opinion and failed to provide an etiology as to the residuals of facial and head trauma. Additionally, the examiner did not consider the Veteran’s lay statements or the previous supportive opinions of record. The Board notes that the benefit of the doubt rule does not require precise longitudinal studies or even rise to the level of scientific consensus to support a claim for veterans’ benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Rather, the Wise court instructed that the benefit of the doubt standard reflects the nation’s recognition of debt to our veterans and has assumed the risk of error in awarding benefits to the veteran. Based on the analysis discussed above, there is insufficient evidence to conclude that the claimed assault event is not credible, and the medical evidence attributes TBI with migraine headaches and right eye scar to the in-service assault. Therefore, his claim for residuals of facial and head trauma is granted. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for service-connected callus of the left foot is remanded. The Veteran was afforded a VA examination in March 2019 and August 2019. While the examiner addressed the symptoms of his left foot disability, the examiner also failed to evaluate the severity of the Veteran’s left foot disability under the applicable Diagnostic Codes. Unfortunately, the Board lacks sufficient information regarding the overall severity of the Veteran’s left foot disability to assign a rating at this time, requiring remand for another VA examination to determine the severity of the Veteran’s left foot disability. On remand, the examiner should indicate all symptoms and residuals that are causally related to the Veteran’s service-connected left foot disability and provide all information necessary to rate these symptoms under the appropriate Diagnostic Codes. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his left foot disability. The entire claims file and this REMAND should be reviewed by the examiner and all appropriate tests and studies conducted. The examiner is asked to identify the symptoms and any impairment that currently result from the Veteran’s left foot disability and discuss the functional effects. The examiner should specifically discuss whether the service-connected callus and corn left foot with left 5th hammer toe with history of surgeries results in any neurologic impairment and, if so, identify the nerve root(s) involved. The examiner must attempt to elicit information regarding the severity, frequency and duration of any flare-ups (if reported), and the degree of functional loss during flare-ups (if reported). If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record or the lack of sufficient knowledge or training of the examiner. The Board notes that the lack of opportunity to observe during a flare-up and/or after repeated use over time is an insufficient basis for not estimating the functional effects. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.