Citation Nr: 21023797 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-12 718 DATE: April 21, 2021 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran suffered a TBI in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a TBI have been met. 38 U.S.C. §§ 1110, 5103(a); 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from January 2000 to July 2000, from October 2001 to October 2002, and from September 2005 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at an August 2017 videoconference hearing before the undersigned Veterans Law Judge. The transcript is of record and has been reviewed. This matter was previously before the Board in May 2018 when it was remanded for additional evidentiary development. In compliance with one of the remand directives, a VA examination was conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the RO failed to attempt to verify the Veteran’s lay statements that his residential compound was bombed by insurgents, in Iraq, in 2006, as required by another remand directive. Notwithstanding this, since the claim is being granted in full there is no prejudice to the Veteran in proceeding with this decision. 38 C.F.R. §§ 19.31, 19.37, 20.1304. Sadly, the Veteran passed away on March 1, 2019. The Veteran’s widow is the appellant in this matter. The request for substitution was granted in September 2019. Service connection for Traumatic Brain Injury (TBI) is denied. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). The disorder at issue in this case is not considered a chronic disease as enumerated for VA compensation purposes. As such, the provisions for chronicity and continuity of symptomatology after discharge are not for application in this case. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of any veteran who has engaged in combat with the enemy during active service in a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Factual Background. The Veteran’s service treatment records (STRs) are silent with respect to a diagnosis or complaints of a TBI. A February 2006 record notes “no headache or seizure disorder.” The Veteran was afforded a Post Deployment Examination in June 2006. Within the report, the examiner noted that the Veteran had not sustained any closed head injuries or concussions while deployed. Service personnel records reveal the Veteran was injured in a combat setting when he was attacked by prisoners he was guarding. A February 2007 Medical and Dental Benefits Counseling correspondence from the Department of the Army informs the Veteran of his entitlement to medical care and other medical services as a Combat veteran. VA treatment records reveal numerous headache complaints; consequently, a TBI referral was requested. A negative TBI screen was provided in August 2008, based on the Veteran’s denial of symptoms immediately after a mortar blast in service. In July 2009, the Veteran was again evaluated for headaches. The corresponding attending report noted the Veteran’s report that he was exposed to explosions while in Iraq. Upon evaluation and interview of the Veteran, an August 2009 VA TBI Second Level Evaluation noted a diagnosis of TBI with the etiology of mortar blast in service. Neurobehavioral symptoms included headaches, feeling dizzy, nausea, and poor coordination. A January 2011 neurology report noted a medical history of TBI due to a mortar blast. A May 2012 VA examination report for headaches notes diagnosis for tension headaches, and includes the Veteran’s report of experiencing a TBI in service due to a bomb by insurgents in Iraq. During his August 2017 hearing, the Veteran reported that his residential compound was bombed by insurgents in Iraq in 2006. He claims that he stumbled and hit his head against the rubble trying to exit the building. The Veteran reported experiencing headaches and dizzy spells in service, but did not report these symptoms because he did not want to “feel like he was complaining,” and he did not want to be forced to leave his troops behind. Pursuant to the May 2018 Board remand, a November 2020 VA medical opinion was provided which opined that the Veteran’s claimed TBI was less likely as not incurred in, caused by, or otherwise related to military service. The rationale explained that Veterans are permitted to report whatever they wish at disability examinations, but the Veteran’s recent reports directly conflict with the reports provided contemporaneously around the time of the claimed injury. Specifically, the examiner explained that on May 2006, the Veteran denied having any head injuries or concussions while deployed. Further, in 2008 he had a negative TBI screen at the VA, and his April 2008 VA examination noted the Veteran’s report of experiencing headaches due to stress and lack of sleep. The examiner went on to explain that mild TBIs resolve in hours, days, or weeks; symptoms do not start later or worsen over time. It was concluded that while it is duly noted that clinical providers at the VA have diagnosed a personal history of TBI, those diagnoses were based solely on the Veteran’s verbal report, and not corroborated by the Veteran’s STRs. Analysis. The Veteran is seeking service connection for a TBI and its residuals. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for a TBI or residuals thereof is warranted. Importantly, the first prong of service connection has been satisfied, as the Veteran has a current diagnoses of TBI and headaches. See August 2009 VA TBI Second Level Evaluation. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of a TBI. In fact, during a June 2006 post-deployment assessment, the Veteran denied any closed head injuries or concussions while deployed. The record reveals that the Veteran engaged in combat with the enemy. VA General Counsel has held that “[t]he ordinary meaning of the phrase ‘engaged in combat with the enemy,’ as used in 38 U.S.C. § 1154 (b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.” The determination whether evidence establishes that a veteran engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC. No. 12-99, 65 Fed. Reg. 6,256-58 (2000). Here, the Veteran testified that his residential compound was bombed by insurgents in Iraq in 2006. February 2007 correspondence from the Department of the Army informs the Veteran of his entitlement to medical care and other medical services as a Combat veteran. In light of this, the Veteran’s lay testimony of an in-service injury is deemed credible and probative because it is consistent with the circumstances, conditions, or hardships of his service. With respect to the third element of service connection, a medical nexus, there are varying opinions. Weighing in favor of a medical nexus is an August 2009 VA Second Level Evaluation which noted a diagnosis of TBI, and the etiology of mortar blast in service. Upon examination, the examiner noted neurobehavioral symptoms which includes headaches, feeling dizzy, nausea, and poor coordination. On the other hand, in a November 2020 VA medical opinion, a psychiatrist opined that the Veteran’s claimed TBI and residuals thereof were less likely than not incurred in or related by his military service. In support of this opinion, the psychiatrist noted, most pertinently, that the Veteran denied having any head injuries or concussions while deployed, and that mild TBIs resolve in hours, days, or weeks, and symptoms do not start later or worsen over time. However, the examiner failed to address the Veteran’s testimony that he didn’t report his head injury or TBI symptoms in service because he did not want to complain and be forced to leave his troops behind. Additionally, the examiner failed to address the Veteran’s testimony that he experienced headaches and dizzy spells in service, and after. Based on the above, the Board finds the evidence of record overall supports the finding that the Veteran’s TBI residuals are related to his active duty service, at least to an evidentiary position of equipoise, and that it was caused by a head injury in service, considered a TBI. Accordingly, service connection for TBI is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.