BRAIN DISEASE DUE TO TRAUMA

Summary

The Veteran, an Air Force Veteran who served from September 1971 to August 1975, appeals the denial of service connection for a traumatic brain injury (TBI) and its residuals, including tonic-clonic seizures, unsteady gait, somnolence, and cognitive dysfunction. The Veteran alleges a TBI resulted from being struck in the head by superiors during service due to racist incidents, including being hit while on guard duty. Lay statements from the Veteran and his spouse corroborate these events and link them to his current symptoms. The Board found the Veteran competent to report his experiences and that the lay statements were credible, satisfying the in-service injury element. While service treatment records were silent on the head injury, the Board found this understandable given the aggressors were commanding officers and the Veteran had excellent performance reviews. Nexus opinions were conflicting: a VA examiner opined less likely than not due to the delayed onset of seizures and lack of in-service treatment, while private opinions from a neurologist/epileptologist and another physician linked the epilepsy and residuals to the in-service head trauma, citing lack of other risk factors and peer-reviewed literature. The Board afforded greater weight to the private opinions, finding them probative and based on examination and credible history, while giving no weight to the VA opinion for failing to consider the lay evidence. Resolving doubt in the Veteran's favor, service connection for TBI was granted.

Rationale

Competent and credible lay statements from Veteran and spouse corroborate in-service head injury.; Silence of STRs not fatal given circumstances of alleged injury.; Greater weight afforded to probative private medical opinions linking TBI to in-service trauma.

Full Decision Text

Citation Nr: A26040954
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 251104-603720
DATE: April 30, 2026

ORDER

Service connection for a traumatic brain injury (TBI), to include residuals of tonic - clonic seizures such as unsteady gait, somnolence, and cognitive dysfunction, is granted.

FINDING OF FACT

The Veteran's TBI is related to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a TBI are met. 38 U.S.C.      §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from in the U.S. Air Force from September 1971 to August 1975.

In January 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an October 2024 decision. The agency of original jurisdiction (AOJ) issued the HLR decision on appeal in April 2025, which considered the evidence of record at the time of the prior October 2024 decision. The AOJ continued to deny service connection for a TBI in the April 2025 HLR decision.

In the November 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the October 2024 AOJ decision on appeal, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 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. 

Service connection for a TBI is granted.

In this case, the Veteran asserts he was struck by his superiors in the head during service due to a series of racist acts. Specifically, the Veteran's spouse asserts that the Veteran confided in her and shared that he witnessed a fellow black soldier being dragged from his bunk by two white male drill instructors and beaten. The two drill instructors told every black soldier that they would be beaten as well if they stepped out of line. The Veteran reported that he was terrified and sleep was never an option. He often was exhausted and forgot to wear his hat, which resulted in him being called the n-word, and being hit in the back of his head.  The Veteran also reported that his master sergeant informed him that he was a member of the KKK and would be looking for him to mess up so that  he could ship him off to Vietnam. The master sergeant threatened him several times and used the n-word as a replacement for his first name. According to the Veteran, one night while on guard duty, he fell asleep and was awakened by a severe blow to his head by a drill instructor who caught him. He never fell asleep from then on. He also reported that he was assaulted twice by two drill instructors for being black. The Veteran's spouse believes this history contributed to his memory loss, seizures and self-isolation. See October 2023, August 2024, and June 2025 Buddy/Lay Statements; November 2025 VA Form 10182 Notice of Disagreement (NOD); and November 2025 Correspondence (Appellate Brief).

Service connection may be granted 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.  Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury
 black. The Veteran's spouse believes this history contributed to his memory loss, seizures and self-isolation. See October 2023, August 2024, and June 2025 Buddy/Lay Statements; November 2025 VA Form 10182 Notice of Disagreement (NOD); and November 2025 Correspondence (Appellate Brief).

Service connection may be granted 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.  Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the claimed in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Regarding the first element of service connection, the AOJ favorably found that the Veteran is currently diagnosed with residuals of a TBI, including tonic-clonic seizures, and this finding is not clearly and unmistakably erroneous. See November 2023 VA treatment record; 38 C.F.R. § 3.104(c).

Regarding the second element of service connection, the Board notes that service treatment records (STRs) make no mention of this injury or symptoms. However, the silence of in-service treatment records are not fatal to this claim. Rather, the Board finds that the Veteran is competent to report experiencing blows to his head in-service and memory loss and seizures post-service, which is within the realm of his personal experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).

The Board is also aware that the nature and circumstances of the injury is likely one that the Veteran would not seek treatment for during service, given that the  aggressors who initiated the TBI are commanding/superior officers. To that end, the Board notes that the Veteran had "outstanding" performance reviews where it was noted that he was "truly remarkable."  As such, the Board finds that the lay statements from the Veteran and his wife are competent and credible, and element two is also met as to an in-service head injury.

Concerning the third element of service-connection, there are conflicting nexus opinions. Against the claim is the opinion of the November 2023 VA examiner, who opined that it was less likely than not that the claimed condition was caused by the claim in-service injury, event  or illness. The rationale was that the medical record reviewed showed the Veteran had his first episode of seizures in July 2023, decades after service separation, and that the Veteran did not have any seizure episode while in the military or within a few years after being separated from military service. 

In conducting his review, the examiner noted that the enlistment examination, separation examination, service treatment records, and post-military private and VA treatment records showed no findings related to the claimed in-service head injuries until July 2023 post-service records that shows the Veteran was diagnosed with improving epilepsy with status epilepticus and toxic/metabolic encephalopathy, which the examiner opined was likely secondary to the aforementioned epilepsy. As such, a nexus could not be established.

On the contrary, the Veteran submitted a September 2024 positive private opinion from a VA staff neurologist and epileptologist wherein the clinician opined that the Veteran has an unsteady gait, somnolence, and cognitive dysfunction, which are more likely related to uncontrolled seizures and subsequent right-sided motor deficits. The clinician opined the most likely culprit for his epilepsy was remote head trauma from being beaten during his period of military service as he had no other risk factors and the Veteran's wife believed the Veteran's symptoms and difficulties started long before last summer.  Also, in an opinion submitted in February 2026, Dr. M.R. opined that the Veteran's epilepsy was related to a racially motivated beating that the Veteran sustained while in the Air Force, as supported by peer-reviewed medical literature.

On balance, the Board finds that greater weight must be afforded to the September 2024 and February 2026 private opinions. Albeit quite brief, the Board finds the September 2024 and February 2026 examiner's opinions are of probative value as the conclusions were based on examination of the Veteran and an accurate medical history from the Veteran. There is no reason to doubt the qualifications of Dr. G.H-C. for the September 2024 opinion or Dr. M.R. for the February 2026 opinions. There is no reason to doubt their ability to determine the Veteran's TBI is related to the head injuries he sustained in-service based on
 Veteran sustained while in the Air Force, as supported by peer-reviewed medical literature.

On balance, the Board finds that greater weight must be afforded to the September 2024 and February 2026 private opinions. Albeit quite brief, the Board finds the September 2024 and February 2026 examiner's opinions are of probative value as the conclusions were based on examination of the Veteran and an accurate medical history from the Veteran. There is no reason to doubt the qualifications of Dr. G.H-C. for the September 2024 opinion or Dr. M.R. for the February 2026 opinions. There is no reason to doubt their ability to determine the Veteran's TBI is related to the head injuries he sustained in-service based on their medical expertise. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Contrarily no weight can be afforded to the November 2023 opinion, as the examiner failed to consider the competent and credible lay statements from the Veteran and his wife. Therefore, this opinion cannot serve as the basis for a denial.

Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for a TBI is warranted.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Pendleton, N.

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.