RESIDUALS OF TRAUMATIC BRAIN INJURY (TBI)

Summary

The Veteran, an Army veteran who served from July 1977 to July 1983, appeals the denial of service connection for Traumatic Brain Injury (TBI) with Attention-Deficit/Hyperactivity Disorder (ADHD). The Veteran reported a head injury with loss of consciousness during service in 1981, which he believes caused his current cognitive difficulties. The Board found the Veteran's statements credible and probative, noting continuity of symptoms since service. A private physician's May 2021 opinion also suggested a link between the Veteran's TBI and his service, despite some formatting issues. The Board gave less weight to a January 2022 VA examination, finding its reasoning confusing and conclusory, particularly its assertion that mild TBIs typically do not have long-term residuals without providing specific rationale to disregard the Veteran's reports. The Board concluded that the evidence was approximately balanced, and applying the benefit of the doubt, service connection for TBI with ADHD was granted. The Board also noted that ADHD is considered a symptom of the TBI, precluding separate ratings to avoid pyramiding.

Rationale

Veteran's statements found credible and probative; Private medical opinion provided probative weight; Less weight given to VA exam due to confusing and conclusory rationale; Evidence approximately balanced, benefit of doubt applied

Full Decision Text

Citation Nr: 22054773
Decision Date: 09/26/22	Archive Date: 09/26/22

DOCKET NO. 17-59 560
DATE: September 26, 2022

ORDER

Service connection for residuals of traumatic brain injury (TBI) with attention-deficit/hyperactivity disorder (ADHD) is granted.

FINDING OF FACT

The evidence is approximately balanced (nearly equal) in favor of finding the Veteran's currently diagnosed TBI with ADHD is related to the in-service head injury and the symptoms reported by the Veteran have persisted since service.

CONCLUSION OF LAW

The criteria have been met for service connection for a TBI with ADHD. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1977 to July 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2016 and September 2016 rating decisions by the Department of Veterans Affairs (VA).

In December 2019, the Board remanded the matter for further development. Additionally, on remand, service connection for a gastrointestinal disability was granted by the Regional Office in a May 2022 rating decision; as this is a full grant of the benefits sought on appeal, this issue is no longer before the Board.

Service Connection

Legal Criteria

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995).

The nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims.

Factual Background

The Veteran's March 1982 enlistment examination noted a head injury in high school and loss of consciousness. The enlistment examiner found the Veteran qualified for service and did not note any residuals from the football injury. As such, the presumption of soundness attaches to the Veteran.

An October 1978 service treatment record documents that the Veteran was riding a motorbike and ran into a snow fence. The diagnosis notes a laceration to the head.

In a January 2016 statement, the Veteran stated while
1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims.

Factual Background

The Veteran's March 1982 enlistment examination noted a head injury in high school and loss of consciousness. The enlistment examiner found the Veteran qualified for service and did not note any residuals from the football injury. As such, the presumption of soundness attaches to the Veteran.

An October 1978 service treatment record documents that the Veteran was riding a motorbike and ran into a snow fence. The diagnosis notes a laceration to the head.

In a January 2016 statement, the Veteran stated while serving aboard the USS Gato in the Navy, he sustained a closed head injury and lost consciousness for about 30 minutes. He further stated that no imaging was performed after the injury, and he was returned to duty. He also stated that he now experienced difficulty with concentration and organization. He stated that an indentation on my skull remains to this day.

The Board previously found the June 2016 VA examinations inadequate, thus, the Board will not address them further here. 

In a June 2017 statement, the Veteran noted that he saw indications of a motorcycle accident on the margins of his treatment record. He stated the accidents he had onboard ship were never recorded. 

In his October 2017 substantive appeal (VA Form 9), the Veteran stated he reported a football injury on my entrance examination however, he was never sent to the hospital nor given a diagnosis, but he marked loss of memory or amnesia because he could not remember the incident. He further stated in contrast, in the Navy through a work-related incident he was knocked unconscious and had his head stitched. On the report of medical history (March 23, 1982) he reported that he was unconscious, had loss of memory or amnesia, and had a head injury. The Veteran also stated that it was after this incident that he started having problems and that these symptoms were not present prior to the trauma in the Navy.

The Veteran submitted a May 2021 private medical opinion, in which his treating physician stated that he has been treating the Veteran since November 2016, and noted diagnoses of TBI. The private physician reviewed the Veteran's medical history and service records, examined the Veteran, and opined that the Veteran has no other known risk factors that would have precipitated his current conditions.

The Veteran attended a January 2022 VA examination for his ADHD. The examiner diagnosed mild neurocognitive disorder due to TBI. The examiner opined that the Veteran's symptoms were more likely than not the result of his previously diagnosed TBI. The examiner reasoned that the Veteran was diagnosed previously with an attention disorder, and the Veteran's reports of the motorbike injury and objects falling on his head during service resulted in a TBI and more likely resulted in some disruption of the Veteran's cognitive abilities.

In April 2022, the Veteran attended a VA examination for his TBI. The examiner diagnosed the Veteran as having a TBI. The examiner noted the onset of symptoms was 1981 after a head injury and unconsciousness while serving on a submarine. The examiner rendered a negative opinion. The examiner's reasoning was the symptoms and timeline were not consistent with cognitive, subjective complaints likely being secondary to a TBI, and the Veteran's history and records were consistent with mild TBI. The examiner further stated that the vast majority of mild TBIs do not have long term residuals and the Veteran's record contained no sign, symptoms, or treatment.

 

Analysis

The Board finds the evidence of record is approximately balanced for and against and the benefit of doubt is to be resolved in the Veteran's favor.

The Board finds the Veteran's statements are credible and competent evidence that his symptoms from his in-service head injuries have persisted since military service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The Board gives significant probative weight to the Veteran's statements.

The Board also finds the May 2021 private medical opinion provides probative weight in favor of the Veteran's claim. While the examination does not conform to the traditional format and wording, taken as a whole, it provided some indication that the Veteran's cognitive difficulties are due to his TBI and the TBI was related to his active service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012).

Less probative weight is given to the April 2022 VA examination because its rationale is confusing and conclusory. In one instance, the examiner stated the Veteran's history and records were consistent with a TBI and then stated that because the TBI was mild, it would not likely have residuals. This opinion does not provide any rationale for why the Board should
 in favor of the Veteran's claim. While the examination does not conform to the traditional format and wording, taken as a whole, it provided some indication that the Veteran's cognitive difficulties are due to his TBI and the TBI was related to his active service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012).

Less probative weight is given to the April 2022 VA examination because its rationale is confusing and conclusory. In one instance, the examiner stated the Veteran's history and records were consistent with a TBI and then stated that because the TBI was mild, it would not likely have residuals. This opinion does not provide any rationale for why the Board should disregard the Veteran's reports other than a blanket statement that most mild TBIs do not have residuals. The severity of the Veteran's condition is the issue when it comes to service connection, rather, it is whether the symptoms of the current diagnosis were at least as likely as not related to an in-service injury. Thus, little probative weight is given to this opinion. 

As noted above, no probative weight is given to the June 2016 VA examination because it was already deemed inadequate.

The evidence is approximately balanced (nearly equal) in favor of finding the Veteran's currently diagnosed TBI with ADHD is related to the in-service head injury.

The Board finds that the Veteran's ADHD is a symptom of his TBI.  As such, in order to avoid pyramiding, separate ratings for the Veteran's TBI and ADHD is not warranted.  38 C.F.R. § 4.14.

Accordingly, the criteria for service connection for a TBI with ADHD have been met, and the claim is granted.

 

 

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Williams, 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.