Citation Nr: 18124069
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 10-46 485
DATE:	August 7, 2018
ORDER
Entitlement to service connection for a brain disorder claimed as a head injury residual is granted.
FINDING OF FACT
The evidence of record is in equipoise as to whether the Veteran’s residuals of traumatic brain injury resulted from an in-service event.
CONCLUSION OF LAW
The criteria for Entitlement to service connection for a brain disorder claimed as a head injury residual have been met.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from July 1974 to October 1976.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.
In July 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  The transcript is of record.
The matter was previously remanded by the Board in March 2016 and June 2017, and has been returned to the Board for appellate review.
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
Entitlement to service connection for a brain disorder claimed as a head injury residual
Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303.  
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  
The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2017).  Walker v. Shinseki, 708 F.3d 1331, 1338 (2013).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2017).
The Veteran claims that his current headaches, cognitive, and psychiatric symptomatology constitute residuals of an in-service traumatic brain injury suffered in a fall from a ten-foot pole in October 1974.  He has also cited numerous other in-service incidents involving head trauma, including a motor vehicle accident, and being struck in the head by a radio antenna that fell from a significant height.
The Board notes that a 1996 CT scan shows the Veteran has a depression in his skull consistent with a traumatic injury.  Moreover, he has consistently reported an in-service fall resulting in head injury to providers.  In addition, service treatment records document a fall from a pole in October 1974, the accident to which the Veteran has consistently attributed his traumatic brain injury.  While the service treatment records do not reveal contemporaneous treatment for a head injury, the Veteran has noted the rapid onset of cognitive symptoms in that accident’s immediate wake, including chronic headaches and unexplained fatigue.  
The Veteran has been afforded several VA examinations in this case.  A May 2011 VA examination revealed mild memory impairment, mildly impaired attention and concentration, and inappropriate social interaction, resulting in a diagnosis of a cognitive impairment…[which is] at least as likely as not due to [traumatic brain injury].”  However, that examiner did not speak to the question of whether the Veteran’s in-service accident or accidents, as he describes them, were more likely than not etiologically related to his cognitive symptoms, merely noting the presence of post-separation workplace accidents, which the Veteran has acknowledged.  
A second VA examination was conducted in November 2016.  That examiner indicated that the Veteran does not have, and has never had, a traumatic brain injury.  However, that examiner noted objective evidence of mild memory impairment, and deficits in attention, concentration, and executive function, while finding the Veteran’s judgment, social functioning, orientation, and motor activity normal.  The examiner also noted a “slight indentation [of the Veteran’s skull] consistent with multiple injuries by a swinging bridging structure,” but which could not be substantiated by any medical records or separation physical examination.  Consequently, the examiner opined that the Veteran’s current symptoms could not be associated with the claimed in-service head injury due to lack of evidence supporting such a nexus.  However, the Board notes that the Veteran is competent to relate symptoms susceptible of lay observation, and has in the instant case reported cognitive problems since separation.   See Layno v. Brown, 6 Vet. App.465, 469 (1994).
A final VA examination was conducted in November 2017.  That examiner furnished a negative etiological opinion as well, explaining that the lack of contemporaneous complaints of or treatment for a head injury, coupled with inconsistencies in the Veteran’s reporting of his head injury history following separation, made it less likely than not that his current symptoms bore an etiological relationship to any in-service event.  To this, the examiner added the Veteran’s history of drug use and psychiatric problems, seemingly to malign the Veteran’s credibility.  
The Board finds these opinions problematic.  First, although the examiners acknowledge the aforementioned CT scan showing a skull depression, they do not explain adequately why this finding is not attributable to the accident or accidents in service as the Veteran claims.  Second, the November 2016 examiner fails to reconcile his findings with the current diagnoses already of record; the Veteran has been diagnosed with a cognitive disorder, and a VA examiner has linked that disorder to head trauma.  Finally, the most recent examiner cites the Veteran’s drug use and psychiatric problems as credibility factors with respect to the validity of the instant claim, but does not consider the possibility that those factors may explain the apparent inconsistency in the Veteran’s reporting of symptoms and their provenance to providers over the course of the record, not to mention that credibility determinations are in the province of the adjudicator and not the medical professional. 
The Board reiterates that although the VA examiners in this case suggest possible alternative causes for the Veteran’s symptomatology, they fail to address adequately the question of why they dismiss his current statements regarding his injuries, which statements find objective support in the service records.  Further, the record contains numerous credible lay statements, including from the Veteran’s wife, brother, and daughter, supporting the Veteran’s contentions that his symptoms began in service and were plainly recognizable immediately upon separation, casting doubt on the examiners’ speculation that symptoms are attributable to events transpiring long after separation.  
In sum, given the credible lay statements of continuous symptoms since the incident in service, and the May 2011 examiner’s opinion relating his cognitive impairment to a head injury, the Board finds that the evidence is at least in equipoise, and in such circumstances all reasonable doubt is to be resolved in the Veteran’s favor.  Accordingly, the Board has done so here. The claim for service connection for residuals of traumatic brain injury is granted.
 
GAYLE STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs

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