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Court Wins

Traumatic Brain Injury Residuals Denial Lacked Adequate Reasons or Bases

Michael Lostritto

September 5, 2017

Updated: November 20, 2023



The Veteran served on active duty in the United States Army from November of 1965 through September of 1989.  He had combat service in Vietnam.  In July of 2010, he filed a claim for service connection for residuals of a traumatic brain injury sustained during service.  VA denied his claim in March 2012.  The Veteran appealed this decision to the Board.  After a January 2015 Board decision remanded the issued and subsequent medical examinations were obtained, the case returned to the Board in June 2016.

Board denied service connection for residuals of a traumatic brain injury

In June of 2016, the Board again denied the Veteran’s claim for residuals of a traumatic brain injury.  In its decision, the Board relied on a 2015 VA examination. The exam reached the conclusion that the Veteran’s TBI residuals were more likely related to a post-service motor vehicle accident.  The examiner did not consider the Veteran’s consistent assertions that his headaches and other TBI residuals had been consistently occurring since head injuries that he suffered in Vietnam and later in his service.  The Board also failed to explain how the Veteran’s competent lay descriptions of his injury factored into its decision.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims a Board decision that denied the Veteran entitlement to service connection for residuals of a traumatic brain injury.  The Board determined that the Veteran’s current TBI residuals were more likely related to a post-service vehicle accident than several head injuries that the Veteran sustained during service.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred by relying on a VA examination which failed to consider the Veteran’s reports of ongoing headaches since several head injuries that occurred in service.  The Court agreed that the Board erred in relying on this examination without considering the Veteran’s lay assertions or conducting any sort of analysis as to the Veteran’s credibility in describing the history of his symptoms. Thus, the Court vacated the Board’s decision and remanded the case back to the Board for further proceedings consistent with the decision.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael