RESIDUALS OF TRAUMATIC BRAIN INJURY (TBI)

Summary

The veteran, who served from April 1984 to December 1984, appeals the severance of service connection for traumatic brain injury (TBI), head scar, and migraine headaches. The Agency of Original Jurisdiction (AOJ) initially granted service connection for TBI directly, and head scar and migraine headaches secondary to TBI in March 2015. In July 2019, the AOJ proposed to sever these grants, concluding the TBI was incurred due to willful misconduct, specifically intoxication leading to a bar fight. The AOJ noted the Veteran's intoxication and a high blood alcohol content, and that the incident was marked as "not in the line of duty." The September 2019 decision severed service connection for all three conditions. The Board reviewed the due process requirements for severance and found them met. However, the Board determined that the AOJ's conclusion of willful misconduct was not supported by clear and unmistakable error. The Board noted that the AOJ's disagreement with the initial weighing of facts was insufficient to establish clear error. The Board found that the evidence did not definitively establish willful misconduct, citing the lack of analysis behind the "not in the line of duty" stamp and the possibility of differing interpretations by reasonable medical professionals. Consequently, the Board restored service connection for TBI, head scar, and migraine headaches, effective December 1, 2019.

Rationale

Severance of TBI was improper; Willful misconduct not clearly and unmistakably established; AOJ's disagreement with initial weighing of facts insufficient for severance

Full Decision Text

Citation Nr: A26035485
Decision Date: 04/16/26	Archive Date: 04/16/26

DOCKET NO. 200918-417162
DATE: April 16, 2026

ORDER

The severance of service connection for traumatic brain injury (TBI) was improper; restoration of service connection for TBI is granted.

The severance of service connection for head scar was improper; restoration of service connection for head scar is granted.

The severance of service connection for migraine headaches was improper; restoration of service connection for migraine headaches is granted.

FINDINGS OF FACT

1. The grant of service connection for TBI pursuant to a March 2015 rating decision was not clearly and unmistakably erroneous.

2. The grant of service connection for head scar pursuant to a March 2015 rating decision was not clearly and unmistakably erroneous.

3. The grant of service connection for migraine headaches pursuant to a March 2015 rating decision was not clearly and unmistakably erroneous.

CONCLUSIONS OF LAW

1. The severance of service connection for TBI was improper; the criteria for restoration of service connection for TBI have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105.

2. The severance of service connection for head scar was improper; the criteria for restoration of service connection for head scar have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105.

3. The severance of service connection for migraine headaches was improper; the criteria for restoration of service connection for migraine headaches have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1984 to December 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2019 rating decision issued by the Agency of Original Jurisdiction (AOJ).

In the September 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran testified at a Board hearing held in August 2024. A transcript of that hearing has been made a part of the record. Therefore, the Board may only consider the evidence of record at the time of the September 2019 AOJ decision on appeal, evidence submitted at the August 2024 hearing, and evidence submitted within 90 days after the August 2024 hearing. 38 C.F.R. § 20.302. Any evidence submitted after the AOJ decision on appeal, not at the hearing, and outside of the 90 days after the hearing cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.302, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

1. Whether the severance of service connection for TBI was proper

2. Whether the severance of service connection for head scar was proper

3. Whether the severance of service connection for migraine headaches was proper

The AOJ initially granted service connection for TBI in a March 2015 rating decision. The AOJ explained that service connection for TBI had been established as directly related to military service. Service connection for head scar and migraine headaches were established as related (i.e., secondary) to service-connected TBI.

In July 2019 the AOJ issued a rating decision proposing to sever service connection for TBI. The AOJ concluded that the TBI was incurred as a result of willful misconduct. The AOJ explained that service treatment records show that the TBI was sustained as a result of a barroom fight when the Veteran was intoxicated. Because the TBI was sustained as a result of a barroom fight when the Veteran was intoxicated, the AOJ also proposed to sever service connection for the head scar and migraine headaches, established secondary to the TBI.

The September 2019 rating decision severed service connection for TBI, head scar, and migraine headaches. The AOJ reiterated the findings of the July 2019 rating decision.

Service connection will be severed only where evidence establishes that the award of service connection was clear and unmistakable error (CUE) (
 concluded that the TBI was incurred as a result of willful misconduct. The AOJ explained that service treatment records show that the TBI was sustained as a result of a barroom fight when the Veteran was intoxicated. Because the TBI was sustained as a result of a barroom fight when the Veteran was intoxicated, the AOJ also proposed to sever service connection for the head scar and migraine headaches, established secondary to the TBI.

The September 2019 rating decision severed service connection for TBI, head scar, and migraine headaches. The AOJ reiterated the findings of the July 2019 rating decision.

Service connection will be severed only where evidence establishes that the award of service connection was clear and unmistakable error (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). 

When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). 

A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d). 

To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). 

In most respects, the CUE standard for severing service connection under               § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id.

However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. 

A decision that is reversed or amended based on CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted).

The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for sever
 on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id. 

A decision that is reversed or amended based on CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted).

The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The Board finds that it did.

The AOJ issued the proposed rating in July 2019. The Veteran was notified in July 2019 at his latest address of record of this contemplated action and furnished detailed reasons for this action. He was given 60 days to present additional evidence to show that service connection should be maintained. The July 2019 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). 

The AOJ issued the September 2019 rating decision severing service connection for TBI, head scar, and migraine headaches effective December 1, 2019. Notification of this rating decision, plus his appeal rights, was sent to the Veteran in a September 2019 letter. The December 1, 2019, severance date was greater than the last day of the month in which a 60-day period from the date of the September 2019 notice expired. Thus, all due process requirements were met in severing service connection. See 38 C.F.R. § 3.105(d). 

The remaining question before the Board is whether the grant of service connection for TBI was clearly and unmistakably erroneous. The Board finds that the severance of service connection for TBI was improper because it is not clear and unmistakable that the Veteran's TBI onset from injury that was the result of the Veteran's willful misconduct.

Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301.

Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease, or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and requirements of laws administered by VA. An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). 

The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2).

A September 1984 service emergency care and treatment record reflects that the Veteran was extremely intoxicated at a bar that evening and got into a verbal confrontation which led to a physical confrontation when a bouncer hit him in the mouth and knocked him to the ground causing his head to strike the pavement. The Veteran reportedly had no loss of consciousness (LOC) but complained of pain on his forehead and back of the neck. Physical examination reiterated that the Veteran was obviously heavily intoxicated and sustained laceration on his forehead. The assessment was head trauma with starburst type laceration to the mid-forehead. 

An additional September 1984 service emergency care and treatment record documents that the Veteran received treatment after a barroom brawl. He sustained a laceration to his mid-forehead which was sutured. He also complained of neck pain. On examination, the assessment was soft-tissue trauma to neck. Stamped on the September 1984 service emergency care and treatment records was "LOD: ______YES___X___NO." A subsequent September 1984 service treatment record documents the followup treatment he received for his forehead laceration. The wound was
 that the Veteran was obviously heavily intoxicated and sustained laceration on his forehead. The assessment was head trauma with starburst type laceration to the mid-forehead. 

An additional September 1984 service emergency care and treatment record documents that the Veteran received treatment after a barroom brawl. He sustained a laceration to his mid-forehead which was sutured. He also complained of neck pain. On examination, the assessment was soft-tissue trauma to neck. Stamped on the September 1984 service emergency care and treatment records was "LOD: ______YES___X___NO." A subsequent September 1984 service treatment record documents the followup treatment he received for his forehead laceration. The wound was healing well. The Veteran was instructed to return in 2 days for suture removal. 2 days later the Veteran returned for treatment. His wound was cleaned and sutures were removed. There was no erythema and no pus. 

A November 2014 VA TBI examination report documents diagnosis of TBI. The Veteran reported that he got into a bar fight in 1984 and had a "spike" stabbed into his forehead. He recalled falling forward and then losing consciousness and reported that he had LOC for an unknown period. He awoke in a hospital and stayed in the hospital for a few days before being discharged back to his unit. He had a slight headache at the time of discharge and slight headache during service. After the accident, he became antisocial and preferred to stay in his room alone. Before the accident, he was outgoing and liked to have fun. The head injury occurred in the early days of his period of service but he was able to perform his military occupational specialty (MOS), avionic communication and navigation, for the remainder of his service. The physician opined that the Veteran had a TBI that was at least as likely as not the result of an altercation involving the Veteran in 1984. The physician explained the Veteran was struck on the forehead by "spike; he sustained LOC; and his post-concussion syndrome included mild headaches, irritability, and concentration difficulties.

A November 2014 VA headaches examination report documents diagnosis of migraine, including migraine variants, headaches. His reported history was consistent with the reported history in the TBI examination. The physician opined that the Veteran's headache was at least as likely as not related to TBI in service. The physician explained that service treatment records showed the Veteran sustained a head injury and he was noted to have head pain after the incident.

In a July 2019 administrative decision, the AOJ determined that the altercation/incident involving the Veteran that occurred on September 16, 1984, was the result of his own willful misconduct. Thus, any disabling injuries or death that resulted directly and immediately form the event was found to be the result of the Veteran's own willful misconduct. The AOJ noted that the Veteran received treatment at the emergency room (ER) of Kessler Air Force Base (AFB) medical center for multiple lacerations after a verbal confrontation lead to a physical assault. The AOJ noted that ER report showed the Veteran was "extremely intoxicated" and it was indicated as "not in the line of duty." The AOJ reported that blood alcohol test (BAT) completed during the ER visit showed blood alcohol level of .181.

The AOJ noted that the Veteran responded to development for a Line of Duty Determination in April 2019, but his response did not mitigate his misconduct. The AOJ explained that a person was held responsible for disabling injuries or death that resulted directly and immediately from deliberate, excessive indulgence in alcohol for the purposes of enjoyment. Willful misconduct in cases involving alcohol consumption is the willingness to achieve a drunken state and, while in that condition, undertake tasks for which the person is unqualified, physically and mentally because of the resulting intoxication. 

The AOJ concluded that because the Veteran was intoxicated at the time of the altercation, the incident and any disabling injuries or death that resulted directly and immediately from the event was found to be the result of his own willful misconduct. 

The evidence documented above does not establish that the award of service connection was clearly and unmistakably erroneous. In interpreting the phrase "clear and unmistakable evidence," the word unmistakable means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). It is not clear and unmistakable that the altercation involving the Veteran in September 1984 was the result of his willful misconduct. To the extent that the AOJ points to the stamp on the ER records indicating the incident was not incurred in the
 above does not establish that the award of service connection was clearly and unmistakably erroneous. In interpreting the phrase "clear and unmistakable evidence," the word unmistakable means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). It is not clear and unmistakable that the altercation involving the Veteran in September 1984 was the result of his willful misconduct. To the extent that the AOJ points to the stamp on the ER records indicating the incident was not incurred in the LOD, the Board notes that absent some special indices of reliability arising from the manner in which a report is prepared, an "X" in a box on a form without any analysis or medical explanation provides no way of determining how the conclusion was reached. Horn v. Shinseki, 25 Vet. App. 231, 240-41 (2012). 

Accordingly, reasonable and competent medical professionals could differ on whether the Veteran's TBI onset from injury that was the result of the Veteran's willful misconduct. 

These are not claims of service connection to be evaluated as to whether the claims should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the evidence is not in approximate balance between that favoring the claims and against the claims. In this matter, the standard to be employed is whether there is "clear and unmistakable evidence" of an error.

Essentially, the AOJ disagreed with how the facts were weighed in the March 2015 rating decision. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous. 

Restoration of service connection for TBI, effective December 1, 2019, is warranted. 

Because service connection for TBI is restored, severance of service connection for head scar and migraine headaches was improper and restoration of service connection for head scar and migraine headaches, effective December 1, 2019, is also warranted.

 

 

R. Bisignani 

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jackson, Graig

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.