Citation Nr: 21024515 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-02 432 DATE: April 23, 2021 ORDER Entitlement to service connection for traumatic brain injury (TBI) is granted. Entitlement to service connection for migraine headaches is granted. FINDINGS OF FACT 1. The evidence supports a finding that the Veteran has a current diagnosis of a TBI residuals due to documented head trauma during service. 2. Migraine headaches are due to documented head trauma during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for traumatic brain injury have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to March 1993. In November 2019, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for traumatic brain injury 2. Entitlement to service connection for migraine headaches The Veteran asserts that a TBI and headaches are the result of service and head injuries during service. Specifically, during the July 2019 Board hearing, the Veteran testified that a TBI with subsequent headaches was the result of an in-service head injury. He testified that he continued to have headaches after the injury and since separation from service. The Veteran stated that a neurologist in Henderson, Kentucky, “told [him] that more than likely what was causing or triggering the backouts and seizures was damage to [the] frontal lobe due to the TBI [the Veteran] suffered.” An October 1988 service medical record shows that the Veteran presented with a right knee abrasion and pain after landing on a water sprinkler while playing football. In June 1990, the Veteran complained of chest, neck, and back pain after an motor vehicle accident. The Veteran reported that “he was riding as a passenger when the car ran off the road and hit a motel. He was wearing a seatbelt with shoulder harness. [He] didn’t strike anything.” The doctor noted an abrasion at the right anterior shoulder from the seatbelt and tenderness of the left costal cartilage. During a followup visit, the Veteran was diagnosed with neck and chest wall soft tissue pain and was placed on a ten-day profile. An October 1991 medical record shows that the Veteran was treated at a civilian hospital after “an altercation with an unknown amount of people.” At the time, the Veteran reported that the was hit in the face with fists and kicked. The Veteran denied loss of consciousness and was alert and oriented times three. There was edema to the nose, a laceration on right eyelid, and right shoulder pain. The Veteran was transferred a few hours later, in stable condition, to an Army hospital. There, the Veteran reported being “hit [with] fists about [the] face [and] shoulders.” There was “no [loss of consciousness] noted” and the Veteran was “alert [and] oriented x3.” There was a laceration on the right upper eyelid, swelling deformity at the bridge of the nose, and tenderness at the right shoulder. The doctor diagnosed a nasal fracture and right AC joint separation. The Veteran had followup care for the right eye and right shoulder and underwent surgery for the nasal fracture. He was admitted for surgery on October 30, 1991, discharged on November 1, 1991, and placed on convalescent leave until November 14, 1991. During a February 1993 separation examination, the Veteran reported eye trouble, broken nose, and painful shoulder. The Veteran denied frequent or severe headaches, head injuries, and periods of unconsciousness. A clinical examination of the head, face, and neurologic functions was normal. VA and non-VA medical records show treatment by several medical professionals to include neurologists. The Veteran was offered VA examinations in May 2012 and May 2014 for posttraumatic stress disorder, and in March 2020 for TBI. The VA examiners noted that there was no diagnosis of TBI. During the July 2019 Board hearing the Veteran testified that he was kicked and hit with sticks by a group of men. He stated that during the assault he was kicked in the face, his head was “slammed” on the ground, and he “blacked out” and woke up in the hospital. He testified that after the assault he began to have headaches, he was treated for headaches while in service, and continued to have headaches after separation from service. The Veteran testified that during an in-service motor vehicle accident (MVA) he hit his head on a windshield, he was rendered unconscious, and had a concussion. The Veteran testified that “there [were] at least two other times that [he] suffered a concussion while being a gunner” in Iraq, but he did not seek medical attention. Post-service medical records show that the Veteran complained of headaches in 2006 and was diagnosed with migraines in December 2013. A January 2010 medical record shows that the Veteran reported an in-service fight with “recover[y] for two weeks in [the] hospital;” and an in-service MVA in which his “head went through [a car] windshield.” A May 2010 neurology consultation note shows that the Veteran reported in-service “kicks to the head, but denie[d] any [loss of consciousness].” In June 2013, the Veteran reported a history of in-service concussions which included “head [to] head impact” while playing football—the Veteran denied loss of consciousness during the incident. During March 2020 VA examinations the Veteran reported that “headaches began after TBIs” in service. The Veteran reported that while in service he: (1) was kicked in the head, “blacked out from the kicks,” had multiple bruises on the face, and spent two weeks in the hospital following an assault; (2) hit his head on a car “windshield and shattered it,” cut his forehead, loss consciousness, and had a concussion after an MVA; (3) “was hit in the head [while] playing football,” lost consciousness for one minute, and was “given bedrest for 2 days”; and (4) had two concussions, loss of consciousness, and nausea after being hit in the head with his weapon. The Veteran was found to have migraine including migraine variants, first diagnosed in 2013. After an in-person examination, review of the claims file, and consideration of the Veteran’s assertions, the examiner opined that headaches were not the result of service. The examiner found that there was no medical evidence to support the Veteran’s assertions of in-service head trauma, TBI, or headaches. The Veteran submitted a September 2020 letter from a neurologist in Henderson, Kentucky. The neurologist stated that the Veteran “endured multiple concussions while serving in the military and as a result, now suffers from intractable basilar migraine headaches and partial complex epilepsy.” The Board finds that the evidence supports a finding of a head injury during service when the Veteran was in an altercation with multiple individuals which required treatment, including for a fractured nose and laceration of the eyelid. While the Veteran denied loss of consciousness at that time, the Board finds that the evidence supports a finding of blows to the head resulting in a head injury. Therefore, an event in service is shown. The Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran’s statements and notes that laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the Board finds that an opinion as to the etiology of migraine headaches and the presence of a TBI is a medical issue that requires medical training which the Veteran does not have. While the Veteran contends multiple head injuries in service, his current statements are not in accord with contemporary evidence, which the Board finds more credible as the contemporary statements at the time of the incidents during service. Nonetheless, the Board finds that at least one head injury in service is conclusively established by the evidence of record. While the severity of the head injury, and whether there was loss of consciousness, has been variously reported. The head injury itself is documented. The Veteran has reported that he experienced headaches during and since service. However, he denied headaches at the service separation examination. However, he also denied a head injury, despite one being documented in the records. The Board finds that the March 2020 VA examination found no evidence of head trauma in service. The Board finds that examination has no probative value because there was a documented head injury during service which resulted in nose fracture and eyelid laceration. The Veteran was hospitalized following that altercation and given convalescent leave. The September 2020 letter from a private neurologist found that the Veteran had headaches and TBI symptoms due to multiple head traumas during service. The Board finds that opinion is from a specialist and provides a rational basis for the opinion. While it is based in some part on contentions by the Veteran that may overstate what it corroborated by the records, the evidence nonetheless shows a documented head trauma and a motor vehicle accident during service where the Veteran was a in a vehicle that struck a motel. He was treated for soft tissue neck injury following that incident. The evidence also documents that the Veteran played football during service. Therefore, the Board finds that multiple head injuries in service is a plausible interpretation of the records. The private neurologist found that those incidents resulted in headaches and TBI symptoms. Accordingly, resolving reasonable doubt in favor of the Veteran the Board finds that the evidence shows that a TBI with resulting headaches was incurred during service and service connection for a TBI with headaches is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., Associate 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.