Citation Nr: 21031320 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-34 029A DATE: May 21, 2021 ORDER Service connection for a traumatic brain injury (TBI) to include any residuals of TBI, is denied. Service connection for an acquired psychiatric disorder, to include depression and post-traumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. The evidence is insufficient to show that the Veteran has a current diagnosis of TBI or any residuals of TBI, to include headaches. 2. The evidence is in relative equipoise as to whether the Veteran has an acquired psychiatric disorder due to a military sexual trauma (MST). CONCLUSIONS OF LAW 1. The criteria for service connection for TBI, or residuals of TBI, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an acquired psychiatric disorder, to include depression and PTSD, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1982 to July 1982. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). TBI and residuals The Veteran contends that she suffered head injuries during service, and that she still suffers residuals of an in-service head injury (such as headaches). A VA examination in April 2017 indicated that the Veteran had a TBI in 1982 during service based on the Veteran's report that she passed out during her military training and hit the ground with the back of her head. She reported that she was treated at the base clinic and was sent back to duty the next day, and that she had headaches, nausea, and dizziness for the next four to five months. She reported that her headaches had persisted ever since. The examiner opined that it was at least as likely as not (50 percent or more probability) that the Veteran's TBI occurred during service, and that she had post-concussion headaches due to TBI. A second VA examination was conducted in March 2018. After interview of the Veteran and review of her claim's file, the examiner did not diagnose the Veteran with either a TBI or with any TBI residuals. The examiner found that the Veteran had no signs or symptoms of a traumatic brain injury. The examiner noted that although STRs dated May 10, 1982 showed that the Veteran reported trauma to the back of head during a fainting and fall incident and that she complained of headaches. The examiner noted that she was not diagnosed with TBI at that time, instead, she was diagnosed with bronchial or respiratory disease. Moreover, the examiner did not find the Veteran a reliable accurate historian because she proffered multiple inconsistent scenarios of her head injuries that were not corroborated by her medical records. Specifically, in addition to the fainting incident, she also reported tripping over a wire setting off flares and being beaten on the head when she was assaulted and raped. The examiner noted that there was no evidence in STRs or the medical records to corroborate the head injury other than the Veteran's own endorsement of symptoms, and while she reported that she was treated at hospital for TBI, the records show that she was hospitalized for pneumonia. The examiner concluded that based on objective data found in STRs, treatment records and observations during in-person examinations, there was no pathology to render a diagnosis of TBI. The examiner also concluded that the Veteran's headaches were not due to TBI because there was no diagnosis of TBI. A private physician provided a medical opinion in February 2021 that it was more likely than not that the Veteran suffered head injuries during her military service, and her persistent headaches were due to her mild TBI and that her symptoms of loss of consciousness, dizziness, nausea, and syncopal episodes were consistent with a diagnosis of a mild traumatic brain injury. STRs show that the Veteran reported on her report of medical history completed at enlistment that she suffered from headaches, dizziness, and fainting spells prior to service. Specifically, she felt dizzy and passed out in August 1981 and was seen at Ball Memorial Hospital in November 1981 to find out what caused the fainting. The medical officer noted on the report of medical history at enlistment that the Veteran had headaches before getting eye glasses, and that she had drug abuse (antihistamines) in 1979. STRs show that she went to ER in February 1982, for chest pain, headaches, and dizziness, which was attribute to a vaccine that had been administered earlier in the day. In April 19982, she complained of chest pain and headaches, she was given a diagnosis of acute respiratory disease. Later in April 1982, she was admitted to hospital for pneumonia. In May 1982, she was again admitted to hospital for acute respiratory disease. On May 10, 1982, she reported a fainting and falling incident, in which she received trauma to the back of her head from a fall. On the next day she was diagnosed with bronchial and respiratory disease. In June 1982, she was seen again for fainting and she reported that she always fainted when she was in the heat. She was referred for mental hygiene consultation which later determined that she had no mental problems except for lack of desire to pass physical training test. The Veteran did not request a separation physical. VA treatment records show that the Veteran was first seen by VA in October 2009, when she had episode of chest pain and her inhaler failed to help her. The pain was gone by the time the doctor came to evaluate her. Bronchospasms were suspected at that time. In June 2011, the Veteran reported over the phone sudden onset of dizziness and that she seemed to pass out. She was instructed to come to doctor's office for further assessment. VA treatment records do not show any diagnoses of or treatment for a TBI or any residuals, and the VA records do not show that the Veteran sought any treatment for headaches from 2009 to 2017. The VA treatment records in November 2018 show that the Veteran was seen for floaters and flashes in her eyes and complained of more headaches and eye pain. She reported that was told to have a PVD in 2017. The assessment at that time of was open angle with borderline findings, allergic conjunctivitis, dry eye, and cataracts in both eyes. Physical examination of the head in July 2016 showed normal head condition. Physical examination of the head in January 2020 showed as "atraumatic" and "normocephalic". The Board finds that the VA medical opinion dated April 2017 and the private opinion dated February 2021 are less probative than the March 2018 VA medical opinion. The April 2017 VA opinion is primarily based on the Veteran's reports and largely ignored the medical evidence contained in the STRs and VA treatment records. While the private opinion dated February 2021 did consider STRs more thoroughly, it fails to address the Veteran's report of medical history at her enlistment that she suffered from headaches, dizziness, and fainting spells prior to service. While a presumption of soundness analysis is not needed at this time, it is important to note that a history of headaches was noted at enlistment. It also fails to explain that while the STRs show that the Veteran repeatedly sought treatment for her dizziness, fainting or headaches, the then treating physicians, including hospital medical providers, never associated these symptoms with TBI. In fact, other etiologies were always provided for these symptoms, such as a side effect of a vaccination, an acute respiratory disease, or pneumonia. These records were created contemporaneously, and must be taken as the most probative assessment of the causes of the Veteran's symptoms at that time. Moreover, the Veteran admitted in June 1982 when she was seen for fainting, and it was that she always fainted when she was in the heat. Yet, even during that admission, no TBI was diagnosed. Lastly, the February 2021 private opinion did not address the VA treatment records which show lack of complains of or treatment for headaches from 2009 to 2018, and which show her headache complaints were accompanied by her eye problems. That is, there was no suggestion in the VA treatment records that the Veteran had symptoms of a TBI. The Board finds that the March 2018 VA opinion is supported by sound rationales and is more consistent with the evidence of the record. As such, it is given more probative value than the two other medical opinions. Accordingly, service connection for TBI or residuals of TBI, to include headaches, is denied. PTSD and depressive disorder The Veteran contends that she was assaulted and raped during service and was treated at a hospital after the assault, and that she suffered from PTSD and depression as result of the military sexual trauma (MST). Service connection for PTSD specifically requires that the records show (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R.§ 4.125, (2) combat status or credible evidence corroborating the occurrence of the claimed in-service stressor; and (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). STRs and showed STRs and military personnel records do not show any evidence that may corroborate the Veteran's report of MST. However, in case of PTSD claims based on MST, an after-the-fact medical opinion can actually serve as the credible supporting evidence of the stressor. See Menegassi v. Shinseki, 638 F.3d 1379 (Fed. Cir. 2011). A VA examination conducted in March 2018 did not diagnose the Veteran with PTSD, but rather diagnosed her with depression. The examiner opined that it was less likely than not (less than 50 percent probability) that the MST actually occurred, finding no justification for a diagnosis of PTSD. A private medical opinion dated February 2021 diagnosed the Veteran with PTSD and depressive disorder, and concluded that the Veteran was sexually assaulted during her military service and that her PTSD was secondary to her MST. Here, the Board is presented with two conflicting medical opinions which were each provided by medical professionals who are presumed to be competent to provide the opinions. Both opinions were rendered after examination or interview with the Veteran and review of the relevant medical records and both provided sound rationales for their conclusions. The Board finds that the evidence of record is in relative equipoise as to whether the Veteran has an acquired psychiatric disorder, to PTSD and depression due to MST. Accordingly, service connection for an acquired psychiatric disorder is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.