Back to BVA DecisionsMIXEDSpecial Benefit NO SPECIAL BENEFIT Docket No. 250731-572564
TRAUMATIC BRAIN INJURY
D. MARTZ AMES · 2026 · Case ID: A26040957
Summary
The Veteran, who served from January 1956 to March 1958, appeals the denial of service connection for a traumatic brain injury (TBI) due to right eye removal and for migraine headaches. The Veteran sought service connection for TBI, asserting it resulted from the anatomical loss of his right eye. Evidence showed a pre-service BB gun wound to the right eye, with enucleation recommended post-service. A December 1966 treating physician certification confirmed the eye removal surgery in March 1958, noting a concussion injury to the globe, intraocular hemorrhage, secondary glaucoma, and advising enucleation due to complete blindness. A May 2025 VA medical opinion found the TBI due to eye removal at least as likely as not proximately due to or the result of acquired anophthalmia post-enucleation, reasoning that the optic nerve injury, being part of the CNS, injured the brain. The Board found this opinion persuasive, resolving doubt in the Veteran's favor, and granted service connection for TBI. The Veteran also claimed migraine headaches, supported by January 1958 service treatment records showing occipital headaches and a October 1966 statement detailing severe headaches in late 1957. The Board found migraines to be an organic disease of the nervous system, granting service connection based on the chronic disease presumption and the in-service headache evidence. The Board denied claims for left-sided neurological problems related to the TBI due to lack of corroborating medical evidence. Service connection for TBI and migraine headaches were granted.
Rationale
Benefit of the doubt applied; VA opinion found TBI due to eye removal at least as likely as not proximately due to or the result of acquired anophthalmia post enucleation; Optic nerve injury is part of the CNS, thus injuring the brain
Full Decision Text
Citation Nr: A26040957 Decision Date: 04/30/26 Archive Date: 04/30/26 DOCKET NO. 250731-572564 DATE: April 30, 2026 ORDER Service connection for a traumatic brain injury (TBI) due to right eye removal is granted. Service connection for migraine headaches is granted. REMANDED A compensable evaluation of xeroderma of the right eye to include seborrheic dermatitis of right eye is remanded. FINDINGS OF FACT 1. The enucleation of the Veteran's right eye severed the optic nerve. The optic nerve is part of the central nervous system. Thus, there was a traumatic brain injury. 2. The Veteran experienced migraine headaches in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a traumatic brain injury due to right eye removal have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1956 to March 1958. The rating decisions on appeal were issued in June 2025 and July 2025 under the modernized review system, also known as the Appeals Modernization Act (AMA). In the July 2025 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A hearing was held on January 5, 2026. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran [or his/her representative] at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). 1. Service connection for a TBI due to eye removal. The Veteran seeks service connection for a TBI. He asserts that this injury is due to the anatomical loss of his right eye. At the Board hearing, the Veteran's daughter testified that the left side of the Veteran's body has neurological problems that a neurologist told her it could be from everything that he was dealing with on the right-hand side. Service connection is provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310 (b). The question for the Board is whether the Veteran has a TBI that is due to, the result of, or aggravated by a service-connected disability. The Board finds that, when giving the Veteran the benefit of the doubt, he has such a disability. As background, the Veteran clearly had a pre-service injury to the eye. January 1956 service treatment records show the veteran had a BB gun wound to the right eye five years prior and that he was blind except for light perception. January 1958 records showed that right eye removal was recommended and the Veteran has had some headaches occipital on the right and vertex. A December 1966 treating physician certification stated that surgery to remove the eye was performed on March 20, 1958, which was post-discharge. The physician certified that the Veteran had had a concussion injury of the globe with intraocular hemorrhage and secondary glaucoma. The Veteran developed a traumatic cataract and endophthalmitis (i.e. serious inflammation), the certification continued. Enucleation was advised since the eye was completely blind. Pursuant to this claim, the Veteran underwent an April 2025 VA eye conditions examination. A May 2025 VA medical opinion for TBI found that the Veteran's TBI due to eye removal is at least as likely as not proximately due to or the result of acquired anophthalmia, post enucleation of the right eye. The examiner reasoned that the Veteran had an injury to the right optic nerve, which is part of the central nervous system (CNS). Being part of the CNS, it injured the brain. Veteran developed a traumatic cataract and endophthalmitis (i.e. serious inflammation), the certification continued. Enucleation was advised since the eye was completely blind. Pursuant to this claim, the Veteran underwent an April 2025 VA eye conditions examination. A May 2025 VA medical opinion for TBI found that the Veteran's TBI due to eye removal is at least as likely as not proximately due to or the result of acquired anophthalmia, post enucleation of the right eye. The examiner reasoned that the Veteran had an injury to the right optic nerve, which is part of the central nervous system (CNS). Being part of the CNS, it injured the brain. A June 2025 addendum medical opinion to clarify if the TBI is related to "trauma to the eye (pre service)" or surgery to remove the eye stated that the actual trauma to the eye occurred prior to service and that the TBI would have resulted from the incident during service. The clinician stated that removal of an eye in and of itself due to prior injury to the optic nerve would not constitute TBI. The Board finds that, when giving the Veteran the benefit of the doubt, the Veteran has had a traumatic brain injury in that the surgery severed the optic nerve, which, as the examiner pointed out, is part of the CNS. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for traumatic brain injury is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board notes that, as to the Veteran's claim of left-sided symptoms associated with the enucleation of the right eye, this assertion was raised for the first time at the Veteran's hearing. Thus, it was after the rating decision on appeal. Accordingly, the duty to assist does not attach and the Board must decide on the evidence of record. In that regard, a December 2024 VA medical opinion found that loss of balance is not caused by enucleation of the right eye with normal visual acuity in the left eye. Upon interview and research, it was a combination of a urinary tract infection requiring hospitalization, dementia, Parkinson's, left eye blurry vision, and generalized debility that most likely caused loss of balance. Although the enucleation of right eye can be a factor, the falls did not start occurring until 2022. This opinion shows that the Veteran had several health problems, and that, in the context of loss of balance, the right eye loss was not a cause. The February 2024 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report shows the Veteran with diagnoses of dementia and left leg muscle contracture, in addition to Parkinson's disease. On the other hand, the hearing testimony from the Veteran's daughter that a neurologist said that his left side could possibly be from everything the Veteran is dealing with on the right does not appear to take into account the effects of Parkinson's disease and the December 2024 medical opinion. Additionally, there is no medical evidence of record from a neurologist to corroborate what was stated at the hearing. Human memory is fallible and without supporting evidence, the Board cannot determine if the Veteran's daughter accurately reported what she was told by a neurologist. Even assuming that Veteran's daughter is a reliable historian and accurately reported that such an opinion was provided, because it is not of record, the Board cannot assess its probative value. The Board is unable to determine the factual basis or rationale supporting the reported opinion. Consequently, the Board gives the lay assertion regarding what a neurologist stated negligible probative value. Therefore, there is no persuasive evidence supporting the conclusion that the Veteran's left sided muscle contracture or other neurological problems are due to the TBI of a surgical severance to the optic nerve for treatment purposes. 2. Service connection for migraine headaches. The Veteran contends that he has had migraine headaches due to the right eye which was enucleated. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of migraine headaches as evidenced by the May 2025 VA headaches presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of migraine headaches as evidenced by the May 2025 VA headaches examination. The Board finds that headaches are a chronic disease entitled to a chronic disease presumption under 38 C.F.R. § 3.307. Specifically, the Board finds that migraines are an organic disease of the nervous system, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board so finds because the VA Adjudicative Procedures Manual M21-1 (M21-1) specifically lists migraine headaches as an other organic disease of the nervous system as a commonly recognized neurological disease. Although the M21-1 is not binding on the Board, the Board must make its own determination before it chooses to rely on an M21-1 provision as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Here, the Board finds that the provision is favorable to the Veteran and the Board has no basis to find that migraines are not an organic disease of the nervous system. Because the Veteran has a current disability that is a chronic disease under 38 C.F.R. § 3.307, if the Veteran had migraines in service, service connection for migraines can be presumed. Service treatment records dated in January 1958 show that the Veteran had occipital headaches associated with his eye disability. Furthermore, an October 1966 statement from the Veteran shows that, in the latter part of 1957, he started getting very bad headaches on his right side. The combination of this evidence establishes that the Veteran had headaches in service. As a chronic condition, any subsequent manifestations are service-connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case and therefore the Veteran's migraine disability is attributable to service. REASONS FOR REMAND A compensable evaluation of xeroderma of the right eye to include seborrheic dermatitis of right eye is remanded. Prior to the July 2025 rating decision on appeal, the Veteran identified relevant outstanding private treatment records. The AOJ did not attempt to obtain them. This was a predecisional duty to assist error and a remand is required to allow VA to obtain these records. The matter is REMANDED for the following action: Ask the Veteran to complete a VA Form 21-4142 for records from the private primary care physician as stated in the December 26, 2024, VA nursing note and in Board hearing testimony. Also, ask the Veteran to complete a VA Form 21-4142 for records from Dr. D. W. who checks the Veteran's artificial eye and is identified in the December 2024 VA skin diseases examination. If he provides the requested information, make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.