Citation Nr: 21024188 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-47 972 DATE: April 22, 2021 ORDER Entitlement to a rating higher than 10 percent for intervertebral disc syndrome (IVDS) with bulging disc prior to December 10, 2019, and a rating higher than 40 percent thereafter is denied. Entitlement to a separate rating of 10 percent and no higher for radiculopathy of the right lower extremity from June 25, 2014 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate rating of 10 percent and no higher for radiculopathy of the left lower extremity from June 25, 2014 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a staged initial rating higher than 10 percent for radiculopathy of the left lower extremity from April 14, 2015 is denied. Entitlement to a staged initial rating higher than 10 percent for radiculopathy of the right lower extremity from April 14, 2015 is denied. Entitlement to a separate compensable rating for paralysis of the femoral nerve of the right lower extremity prior to December 10, 2019, and a staged initial rating higher than 10 percent thereafter is denied. Entitlement to a separate compensable rating for paralysis of the femoral nerve of the left lower extremity prior to December 10, 2019, and a staged initial rating higher than 10 percent thereafter is denied. Entitlement to service connection for a traumatic brain injury (TBI) is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran’s IVDS with bulging disc is manifest by painful motion; combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees; thereafter, it is manifest by forward flexion of the thoracolumbar spine of 30 degrees or less. 2. From June 25, 2014, the Veteran had mild radiculopathy of the right lower extremity. 3. From June 25, 2014, the Veteran had mild radiculopathy of the left lower extremity. 4. From April 14, 2015, the Veteran’s radiculopathy of the right lower extremity was no more than mild. 5. From April 14, 2015, the Veteran’s radiculopathy of the left lower extremity was no more than mild. 6. There is no evidence of paralysis impairment of the femoral nerve of the right lower extremity prior to December 10, 2019; thereafter, the Veteran had no more than mild incomplete paralysis of the femoral nerve of the right lower extremity. 7. There is no evidence of paralysis impairment of the femoral nerve of the left lower extremity prior to December 10, 2019; thereafter, the Veteran had no more than mild incomplete paralysis of the femoral nerve of the left lower extremity. 8. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosed TBI at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent prior to December 10, 2019, and higher than 40 percent thereafter, for IVDS with bulging disc have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. The criteria for an initial disability rating of 10 percent and no higher for radiculopathy of the right lower extremity have been met from June 25, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for an initial disability rating of 10 percent and no higher for radiculopathy of the left lower extremity have been met from June 25, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. The criteria for a staged initial rating higher than 10 percent for radiculopathy of the right lower extremity from April 14, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. The criteria for a staged initial rating higher than 10 percent for radiculopathy of the left lower extremity from April 14, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 6. The criteria for a separate compensable rating for paralysis of the femoral nerve of the right lower extremity prior to December 10, 2019, and a staged initial rating higher than 10 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 7. The criteria for a separate compensable rating for paralysis of the femoral nerve of the left lower extremity prior to December 10, 2019, and a staged initial rating higher than 10 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 8. The criteria for service connection for TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1998 to September 1998, and from March 2003 to December 2003. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision. Entitlement to service connection for a TBI was reopened and denied by a June 2019 Board decision, which also remanded entitlement to a higher rating for IVDS with bulging disc. The Veteran appealed the denial of entitlement to service connection for TBI to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court issued an order granting a Joint Motion for Remand (JMR), which served to vacate the denial of service connection for a TBI in the June 2019 Board decision. The issues of entitlement to service connection for sleep apnea and bilateral knee disabilities were previously before the Board. However, in August 2020 the Veteran chose to have these issues adjudicated under the Appeals Modernization Act (AMA). The Veteran was informed that these issues had been moved to a separate docket by a November 2020 letter. As these issues are now separately docketed, they are no longer part of this appeal stream, and will not be addressed in the decision below. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a rating higher than 10 percent for IVDS with bulging disc prior to December 10, 2019, and a rating higher than 40 percent thereafter The Veteran contends that he is entitled to a higher rating because of his back pain, which at times is so bad that he cannot get out of bed. During the pendency of the Veteran’s claim and appeal, the criteria for rating back disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. The Veteran’s IVDS with bulging disc IVDS is currently rated under the old version of 38 C.F.R. § 4.71a, DC 5243. DC 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1 Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Prior to December 10, 2019, the combined range of motion of the Veteran’s thoracolumbar spine was between 120 and 235 degrees. The July 2015 VA examination found that the Veteran’s thoracolumbar range of motion was limited to 70 degrees flexion, 30 degrees extension, 30 degrees of right and left lateral flexion respectively, and 30 degrees of right and left lateral rotation respectively. This results in a combined range of motion of 220 degrees. The examiner found no flare-ups, and no guarding or muscle spasm. The Veteran’s treatment records do not indicate more severe limitation of motion; on the contrary, he had full range of motion of the back in November 2018 and May 2019 private treatment records. There is no evidence during this time period that his range of motion was limited to between 30 and 60 degrees flexion or a combined range of motion of the thoracolumbar spine less than 120 degrees, as would be required for a rating higher than 10 percent. There is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A rating higher than 10 percent is not available under the General Rating Formula for Diseases and Injuries of the Spine. Although a November 2020 brief from the Veteran’s representative argues that the record shows that the Veteran is bedridden several days at a time entitling him to a rating of 60 percent throughout the appeal period, the Board’s review of the record does not support such a finding. The record prior to December 10, 2019, does not contain any reference to the Veteran being prescribed bed rest by a physician. The Veteran’s report of being bedridden was made in the December 10, 2019 VA examination, and thus is not for consideration prior to that date. Moreover, as will be discussed further below, the Veteran’s self-report does not meet the requirements of incapacitation for the purposes of the rating schedule. There is no evidence that the Veteran is entitled to a rating higher than 10 percent prior to December 10, 2019, under the Formula for Rating IVDS Based on Incapacitating Episodes. For the foregoing reasons, entitlement to a rating higher than 10 percent prior to December 10, 2019, must be denied. The Veteran has been assigned a 40 percent rating from December 10, 2019 to the present. This is the higher rating available based upon limitation of motion of the thoracolumbar spine Although the December 2019 examiner was not able to provide limitation of motion during flare-ups in terms of degrees of range of motion, the Board notes that the 40 percent rating the Veteran has been assigned is the highest rating available based upon limitation of motion. The Board will not remand this issue to schedule a new examination in an attempt to obtain range of measurements during flare-ups as doing so would not result in a higher rating for the Veteran. A higher rating under the General Rating Formula for Diseases and Injuries of the Spine requires a finding of unfavorable ankylosis of the entire thoracolumbar spine. The December 2019 examination found that there was no ankylosis. Even if the Board interpreted the Veteran’s report of being unable to get out of bed during periods of flare up to mean that he functionally had zero range of motion, such limitation is the equivalent of fixation of the spine in a neutral position (zero degrees), which is contemplated by the 40 percent rating that has been assigned. 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Board will also consider whether the Veteran’s symptoms warrant the assignment of a rating higher than 40 percent under the Formula for Rating IVDS Based on Incapacitating Episodes. The rating schedule clearly states that an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). Although the Veteran reported in the December 10, 2019 VA examination that his back pain is so bad during flare-ups that he cannot get out of bed, the Veteran has not asserted and the record does not reflect that a physician has ever prescribed bed rest for the Veteran’s IVDS. Therefore, he has not had any incapacitating episodes as defined by the rating schedule, much less incapacitating episodes with a total duration of at least 6 weeks. For the foregoing reasons, entitlement to a rating higher than 40 percent from December 10, 2019, must be denied. 2. Entitlement to a separate initial rating of 10 percent and no higher for radiculopathy of the right lower extremity from June 25, 2014 3. Entitlement to a separate initial rating of 10 percent and no higher for radiculopathy of the left lower extremity from June 25, 2014 The Board finds that the Veteran is entitled to a separate rating of 10 percent and no higher for radiculopathy of each lower extremity effective June 25, 2014. Although the Veteran’s disability is characterized simply as “radiculopathy” in the August 2015 rating decision assigning separate ratings for radiculopathy of each lower extremity effective April 14, 2015, the Board notes that the Diagnostic Code corresponding to radiculopathy in the rating decision indicates that the Veteran has been rated for sciatic radiculopathy. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. When deciding an increased rating claim, the Board can consider evidence back to the date of claim, and can also look back on evidence within one year before the date of claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this case, the radiculopathy issue is part of the April 2015 claim for an increased rating for the lumbar spine disability. The earliest reference to radiculopathy is a June 25, 2014 private treatment record, which notes bilateral numbness and tingling as well as pain down the left leg. Another private treatment note from July 2014 diagnoses these symptoms as lumbar radiculitis. These private treatment notes fall within the one-year look-back period, and indicate that radiculopathy was present prior to April 14, 2015. Because the medical evidence indicates that the Veteran has reported radicular symptoms since June 25, 2014, the Board will assign the Veteran a rating of 10 percent each for radiculopathy of the right and left lower extremity from that date. The preponderance of the evidence is against a finding that the Veteran’s radiculopathy was more than mild during this period because it is only noted by subjective complaint of sensations such as numbness and tingling, with no indication of moderate symptoms upon objective examination. Moreover, there is no indication that the Veteran’s symptoms prior to April 14, 2015 were more severe than those noted after April 15, 2015. As will be discussed in the section below, the Veteran’s radiculopathy from April 14, 2015 is no more than mild in severity. For the foregoing reasons, the Board assigns a rating of 10 percent and no higher for radiculopathy of the right and left lower extremities respectively from June 25, 2014. 4. Entitlement to a staged initial rating higher than 10 percent for radiculopathy of the left lower extremity from April 14, 2015 5. Entitlement to a staged initial rating higher than 10 percent for radiculopathy of the right lower extremity from April 14, 2015 The Veteran contends his symptoms warrant the assignment of a rating higher than 10 percent for radiculopathy of the right and left lower extremities. The July 2015 VA examination found that the Veteran had full muscle strength, no muscle atrophy, normal deep tendon reflexes, and a normal sensory examination. The Veteran had severe intermittent pain and severe numbness in the bilateral lower extremities. The examiner found bilateral mild sciatic radiculopathy. However, May 2018, November 2018, and May 2019 private treatment notes indicated that the Veteran had normal neurologic sensation, strength, coordination, and reflexes. A December 2019 VA examination also found normal strength, normal deep tendon reflexes, and a normal sensory exam. The December 2019 examination also noted mild intermittent pain bilaterally, mild paresthesias and/or dysesthesias bilaterally, and mild numbness bilaterally. The examiner found mild radiculopathy of the femoral and sciatic nerves. Since the Veteran’s objective sensory examinations are consistently normal, the Board finds that the Veteran’s radiculopathy is no more than mild. Therefore, he does not meet the criteria for entitlement to higher rating. Entitlement to a rating higher than 10 percent for radiculopathy of the right or left lower extremity from April 14, 2015, must be denied. 6. Entitlement to a separate compensable rating for paralysis of the femoral nerve of the right lower extremity prior to December 10, 2019, and a staged initial rating higher than 10 percent thereafter 7. Entitlement to a separate compensable rating for paralysis of the femoral nerve of the left lower extremity prior to December 10, 2019, and a staged initial rating higher than 10 percent thereafter The Veteran has been assigned a separate rating of 10 percent each for radiculopathy of the right and left lower extremities as a result of impairment of the femoral nerve from December 10, 2019. The Veteran contends that he should be assigned a higher rating and that the 10 percent rating assigned should have been assigned prior to that date. Paralysis of the anterior crural nerve (femoral) is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The December 10, 2019 examination is the first time radiculopathy of the femoral nerve, as opposed to general radiculopathy or sciatic radiculopathy, is noted in the record. Therefore, there is no basis to assign a separate rating for radiculopathy of the femoral nerve prior to that date. The December 10, 2019 examination describes the Veteran’s femoral radiculopathy as mild in severity. He has normal strength, deep tendon reflexes, and sensory examination. His symptoms of bilateral intermittent pain, paresthesias and/or dysesthesias, and numbness bilaterally are all described as mild. There is nothing in the record that contradicts these findings. As such, there is no basis to find that the Veteran’s femoral radiculopathy is more than mild. Entitlement to a rating higher than 10 percent each for paralysis of the femoral nerve of the right and left lower extremities from December 10, 2019, must be denied. 8. Entitlement to service connection for a TBI The Veteran contends that he suffered a traumatic brain injury during an in-service motor vehicle accident. 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 a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The June 2017 VA examiner found that the Veteran has no diagnosis, has never had a TBI, and has no residuals of a TBI. The examiner opined that the Veteran does not have enough symptoms to meet the criteria for TBI. A July 2009 VA treatment note also indicates that the Veteran has not been diagnosed as having a TBI during deployment. There is no diagnosis of TBI in the record. The Veteran does not have the specialized medical training necessary to diagnose a TBI, and thus is not competent to provide a diagnosis. The June 2017 examiner’s finding that the Veteran does not have a TBI also appears to be, at least partially, based upon a finding that there is no objective evidence that the Veteran lost consciousness. The Court has instructed the Board to perform a complete competency and credibility analysis to determine whether the Veteran lost consciousness due to a head injury during service. As will be discussed below, the Board finds that the most probative evidence is against a finding that the Veteran lost consciousness in service. The Veteran asserted in his December 2015 notice of disagreement (NOD) that the TBI occurred when he was involved in an accident in Iraq where two 7-ton trucks collided with each other, and he hit his head and was knocked unconscious. In a September 2017 VA Form 9 the Veteran reiterated that he suffered a TBI at the same time that he hurt his back, when he was in a motor vehicle accident involving two 7-ton trucks. He wrote that he hit his lower back with an ammo can and hit his head on a back wall, which knocked him out for several minutes. He states that when he was treated, they were more concerned with his back. The Veteran is competent to report his experience of hitting his head and losing consciousness. The Veteran’s service treatment records (STRs) show he was involved in a motor vehicle accident in June 2003, while deployed in Iraq. The description of the accident in a September 2003 line of duty determination is generally consistent with the accident described by the Veteran, however, while the description indicates he hit his low back on an ammo crate, there is no indication that the Veteran hit his head or lost consciousness. A September 2003 treatment note also discusses the accident with no reference whatsoever to a head injury or loss of consciousness. In December 2003, the Veteran affirmatively denied frequent or severe headaches, head injury, memory loss or amnesia, and a period of unconsciousness or concussion. While the fact that the treatment records and line of duty determination referencing the motor vehicle accident do not reference any head injury or loss of consciousness does not necessarily undermine the credibility of the Veteran’s report of losing consciousness, the fact that he affirmatively denied every experiencing any head injury or loss of consciousness in December 2003 does. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board finds that the Veteran’s assertions in December 2003, months after the motor vehicle accident in question, have greater probative value than statements made years afterwards in pursuit of a claim for disability benefits. Therefore, the Veteran’s assertions of hitting his head and losing consciousness during service are not credible, and do not change the outcome of the claim. To the extent that a disability other than TBI ought to be developed as part of this claim, the Board notes that as there is no competent and credible injury of a head injury in service, it is not necessary to obtain another examination to determine if the Veteran has another disability that might be attributed to a head injury. The Veteran’s representative has also argued that the combat presumption applies in this case. The Board disagrees. The combat presumption states that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C. § 1154(b). In recognition of the difficulty of collecting or preserving proof of service incurrence in combat conditions, § 1154(b) allows veterans to establish a presumption of service-connection by lay or other evidence in the absence of official records. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While the Board recognizes that the Veteran experienced combat in service, and that such combat is the basis of his service connection for posttraumatic stress disorder (PTSD), he has not stated at any point that he injured his head or lost consciousness during combat. Instead, he has consistently stated that the injury occurred during a motor vehicle accident and there are official records related to that accident. The Veteran’s representative argued in a March 2021 brief that the combat presumption should apply because the Veteran’s military occupational specialty (MOS) was rifleman and because the motor vehicle accident involved military trucks in Iraq. However, the mere fact that the accident involved military trucks and a rifleman, and that it occurred in Iraq, does not transform the circumstances of the accident into combat. Contrary to what the March 2021 brief implies, not every accident involving a military vehicle or military personnel is an incident of combat. The official records related to the accident include the Veteran’s description of the accident and the line of duty determination; neither of which indicates that enemy combatants or insurgents were involved with the accident in any way. There are official records related to the accident itself and there is no evidence that the accident occurred during combat, and as such, the combat presumption does not apply. As the most probative evidence of record indicates that the Veteran did not have an in-service head injury, and that the Veteran does not have a diagnosis of TBI or residuals of a TBI, the Veteran’s claim must be denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.