Citation Nr: 18123938
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-28 044
DATE:	August 3, 2018
Service connection for TBI is denied.
The preponderance of evidence is against finding a diagnosis of TBI that resulted from an in-service injury.
The criteria for service connection for TBI have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.
The Veteran served on active duty in the United States Army from October 1978 to January 1979.  He also served on active duty in the United States Army National Guard from June 21-23, 1996, and from July 10-24, 1999.  The Veteran testified before the undersigned Veterans Law Judge at a November 2015 Board hearing. This matter is on appeal from a November 2011 rating decision.  
Service Connection
The Veteran contends that he sustained a traumatic brain injury (TBI) while in service on July 21, 1999, when an artillery simulator blasted close to him.  He testified to recalling having his “bell rung”, ringing in his ears, and being dazed for several minutes following the blast.  He also added that he lost consciousness.  He testified that he reported to sick call following the incident and was given light duty. 
Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  In general, service connection requires (1) 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
Service treatment records dated July 1999 confirmed the Veteran’s account.  The medical report noted ringing in ears, as well as headaches.  However, there was no indication of a physical head injury or a diagnosis of a traumatic brain injury.  Several examination reports during the Veteran’s time in the military reserves, including one conducted in February 2001, all reported normal clinical findings relating to his head.  
Post-service treatment records at a psychiatric consult in April 2007 even showed that the Veteran denied any past physical injury to his head.  It was in September 2010 when the record first noted that the Veteran had sustained a head injury when he was struck on his head with an object by his girlfriend.  He was subsequently treated for pain.  At his November 2015 Board hearing, the Veteran explained that his TBI had existed in service and was made worse by the incident with his girlfriend.     
VA neurology consult dated February 2011 noted a prior severe head trauma and loss of consciousness.  He had been complaining of pain in the cervical nerve root distribution (occipital area).  A CT scan showed a 5 mm well corticated bone fragment is seen adjacent to the tip of the odontoid, which may represent non-ossification of a secondary growth center versus prior trauma.  The Veteran underwent a procedure to lessen his pain by injecting a local anesthetic and steroids into the occipital nerve area.  Another VA neurology consult in April 2012 noted that the Veteran had a history of occipital neuralgia, sensorineural hearing loss and tinnitus due to a head injury.  However, the specifics regarding the origin of the head injury was not discussed.  
In October 2012, the Veteran reported experiencing difficulties with memory and cognition.  A VA physician noted that it was possibly linked to his concussion, PTSD, or his 1999 TBI.  The Board notes, however, that a head injury or loss of consciousness in service was not reflected in his service treatment record.  There was no complaints or diagnosis that resulted in a head injury as reported by the Veteran.
In support of his claim, the Veteran submitted a May 2015 letter from his private physician indicating that he experienced a blast injury in 1999, which had resulted in long term effects including headaches, mood disturbances, memory difficulties and significant “post-concussive syndrome.” The private physician however found that the 2012 MRI results was “fairly unremarkable.”  
The Veteran was afforded a VA examination in July 2015 where he was evaluated for residuals of TBI.  The examiner found that it was less likely than not that the Veteran experienced a TBI in 1999, or any residuals thereof.  The examiner recorded the Veteran’s contentions at the examination that he was exposed to this loud artillery simulator blast over his right shoulder on July 17, 1999, which rand his bell and dazed him for several minutes, if not rendering him briefly unconscious.  The examiner allowed that such a description could be consistent with a diagnosis of mild TBI.  However, the examiner explained that a review of the records from that event found do not support that a TBI occurred.  Specifically, there was no mention of loss of consciousness or alteration of consciousness in medical records that were present within a few days of the event, including a medical evaluation from July 21, 1999.  The Veteran has stated that following the blast he experienced headaches that were still persistent (for 4 days at that time) along with hearing loss.  However, the examiner noted that he was seen by multiple providers afterwards, including mostly ENT specialists for hearing loss and tinnitus, but no mention of head trauma or even headaches was made in those records.  "Acoustic trauma" was considered to have occurred.  A Compensation and Pension Evaluation from 2003 does suggest then the Veteran told the provider he thought he might have had a concussion from with this blast, but there was no elaboration, and it was not until he was seen by Neurology and Pain Management (Boston VA) for left occipital headaches in 2010–11 that a history and diagnosis of TBI was entertained.  However, the examiner found that those histories were not based on the actual service records, as those providers would not have had access to such records.  While the Veteran stated that he believed his memory loss began gradually at least back in 2005 or earlier, the examiner noted that psychology records from 2005 suggest his memory at that time was "good", and he was being treated for anxiety/depression.  There was no significant complaint of memory loss until he began seeing Neurology and underwent testing for this after 2010.  His first evaluation in Manchester VA by his PCP was noted for denials of headaches or confusion.  Neuropsychological testing done formally in August 2012 did show some cognitive decline, but was most suspicious for a psychological cause rather    than remote single TBI event of which he complained.  The providers testing him and treating him for memory loss at that time did not have access to his service treatment records describing his symptoms right after the blast in 1999. For many years after 1999 there is simply no mention of headaches in his records as a complaint to any of his providers, until late 2010.  It is not likely an occipital neuralgia, rarely resulting from trauma, for which he is being treated now, is due to the blast he suffered in 1999.  Those headache complaints at the time of injury were different, and a blast over the right shoulder would not be expected to cause left occipital neuralgia many years later.
In reviewing the evidence of record, the Board finds that service connection for a TBI is not warranted.  The Board notes that certain treatment records note a history of TBI, including both VA treatment records and the May 2015 letter from the Veteran’s private physician.  However, given the lack of a diagnosis of TBI or record of any symptoms relating to a head injury, the medical opinion rendered by his private physician was based on an inaccurate set of facts.  Thus, reducing the probative value of such opinion.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). 
On the other hand, the Board places great probative value on the July 2015 VA examination report because it was based on a physical examination of the Veteran and a thorough review of his medical records.  The review of the records in this case was particularly important because the records somewhat undermined the Veteran’s accounts of the onset of his headaches and memory loss.  The examiner went through in exacting detail why it was not felt that the Veteran experienced a TBI as a result of the blast in 1999, and grounded this opinion in actual medical records.  The examiner provided unequivocal and conclusive opinions, offering clear reasoning for the Veteran’s condition and why he did not have a condition related to his military service.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
The Board acknowledges the Veteran’s belief that his headaches and cognitive problems are the result of a TBI.  However, his medical records, both in-service and post-service, do not support this contention.  Insomuch as the Veteran has attempted to establish a diagnosis of TBI and its origin in service through his own lay assertions, the Board finds that the Veteran is not competent to render such a diagnosis, in that he is not shown to have the medical training or expertise to provide such an opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”).
The Board finds that evidence of a present disability has not been presented in the case of the Veteran’s reported TBI; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the criteria for service connection for a TBI have not been met, and the Veteran’s claim is denied.

Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N.Yeh, Associate Counsel 

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