Citation Nr: 0305361 Decision Date: 03/21/03 Archive Date: 04/03/03 DOCKET NO. 98-19 039 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a concussion. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Parakkal, Counsel INTRODUCTION The veteran served on active duty from March 1984 to February 1988 and from May 1990 to July 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 1998 RO decision which denied the veteran's claim of service connection for residuals of a concussion. In October 1999, the Board remanded the veteran's claim for residuals of a concussion for further evidentiary development. It is noted that the Board denied the veteran's claim of service connection for anxiety attacks in an October 1999 decision; this decision is final. 38 U.S.C.A. § 7104. It is noted that a November 1999 examination report reflects the opinion that the veteran has atypical mixed anxiety and depressive disorders which are secondary to his January 1991 closed head injury and post-concussive syndrome. Further, in December 1999, the veteran submitted a statement which claims that he has anxiety and other psychiatric problems due to his inservice head trauma. This is a claim to reopen service connection for a psychiatric disability, including anxiety, and appropriate action should be taken. FINDING OF FACT The veteran sustained a concussion in service in January 1991 and has current residuals of such, including a neurocognitive deficit. CONCLUSION OF LAW Post-concussion syndrome, including a neurocognitive deficit, was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran served on active duty from March 1984 to February 1988 and from May 1990 to July 1997. In January 1991, the veteran was involved in a fight. He was hospitalized and it was noted that he had sustained a closed head trauma (CHT). He complained of persistent headaches, fuzzy thinking and drowsiness.. His condition was noted as mild with facial contusions. He was also noted as having probable post-concussion syndrome and post-concussion syndrome. In a January 1991 service medical record, it was noted that in view of the relative severity of the veteran's head injury and his persistent headaches, it would be wise for him to undergo a CT scan. It was expected that the scan would be normal and it was noted that the veteran's case was an example of mild post-traumatic syndrome, and it was pointed out that he was making an uneventful recovery. It was also noted that some of the veteran's anxieties related to a colleague who sustained an intercranial hematoma and died. On separation examination in April 1997, the veteran reported a history of a head injury. An examiner noted that he had sustained a head injury in January 1991. It was noted that a neurologist had diagnosed post-concussion syndrome. A CT scan had been recommended; however, the veteran did not follow-up. It was noted that he had an uneventful recovery and the veteran's condition was not considered disqualifying. On examination, it was noted that his head and neurological system were normal. A May 1998 VA general medical examination report shows that the veteran reported being in a brawl in service, sustaining a head trauma which resulted in loss of consciousness for one day. On neurological examination, there were no gross motor or sensory deficits. Reflexes were normal. Coordination was adequate. He had a good gait, stance, and coordination. While hesitant, he was able to locate his nose with his finger. He had good proprioception. Cranial nerves II through XII were intact. A psychiatric and a personality evaluation revealed he was oriented to place, person, and time. He had a good past and present memory. There were no signs of tension. He had good comprehension and adequate coherence in response to questions. The diagnosis was post- concussion syndrome. In November 1999, the veteran was examined by a private physician, a neuropsychiatrist who is double boarded in forensic psychiatry, with a subspecialty of neuropsychiatric pain management, head injuries, headaches, and post electrocution and post toxic syndrome injuries. Following a review of the record, it was noted that the veteran had functioned well until he sustained a head injury in January 1991. He was hospitalized and in an altered state that cleared over several days. It was noted that there was good documentation of the assault, concussion, and post-injury follow-up in the veteran's service medical records. The Axis I diagnoses included: 1) a mental disorder with mood, memory and personality changes secondary to post-concussive syndrome and a closed head injury, 2) a neurocognitive deficit secondary to a closed head injury and post-concussive syndrome, and 3) atypical mixed anxiety and depressive disorders associated with post-concussive syndrome with a closed head injury. It was noted that it was well-known in the psychiatric field that a closed head injury and post- concussive syndrome are considered the silent epidemic. In a November 1999 VA general medical examination report, the examiner indicated that she thoroughly reviewed the claims folder. It was opined that the veteran did not have a post- concussion syndrome but had a post-traumatic episode as his current neurological examination was completely normal. It was also noted his neurological examination was normal at the time of his head trauma and two weeks thereafter. Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law during the pendency of this appeal with the enactment of the VCAA. 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107; 66 Fed. Reg. 45,620 (Aug 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159. The new law includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). There is sufficient evidence of record to decide the claim. Further, there is no prejudice to the veteran in proceeding with this appeal as this decision results in a full grant of the benefits sought on appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). Basic Laws and Regulations Regarding Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A review of the veteran's claims file shows that he was involved in a fight in January 1991, during active duty, and sustained a closed head trauma. His complaints included headaches and dizziness, among other things. He was variously diagnosed as having probable post-concussion syndrome, post concussion syndrome, and a mild post-traumatic syndrome. On separation examination in April 1997, it was noted that the veteran had sustained a closed head trauma in 1991 and had an uneventful recovery. On examination, it was noted that his head and neurological system were normal. More recent medical evidence shows that the veteran has been variously diagnosed as having and not having residuals of a concussion. A May 1998 VA examination report shows that the veteran had a normal neurological examination, and the diagnosis was: post concussion syndrome. In November 1999, the veteran underwent a private examination and was diagnosed as having a neurocognitive deficit and a disorder with mood, memory and personality changes, and this condition was attributed to the veteran's inservice closed head injury and post-concussive syndrome. A November 1999 VA examination report reflects the opinion that the veteran did not have post-concussion syndrome as his neurological examination was normal at the time of the initial injury, two weeks thereafter, and currently. In sum, there are conflicting opinions on file regarding the issue of whether the veteran currently has residuals of a concussion in service. The Board finds the November 1999 opinion from the private examiner to be most probative. Notably, the private examiner has a distinguished background -- he is double boarded in forensic psychiatry and has a subspecialty in head injuries. It was his considered opinion, following a thorough review of the claims file and an examination of the veteran, that the veteran did indeed have residuals of an in-service concussion, including a neurocognitive deficit. A detailed rationale was provided, including a through discussion of the veteran's medical history during service and thereafter. In addition, it is noted that the May 1998 VA examination offered a diagnosis of post-concussion syndrome. Conversely, a November 1999 opinion from a VA examiner is to the effect that the veteran did not have a post-concussion syndrome. While the examiner did indicate she reviewed the claims folder, little rationale was offered for the diagnosis. The Board concludes that the veteran had an in-service injury and there is evidence of a current diagnosis and a medical opinion linking the current diagnosis to the in-service event. The Board concludes that residuals of a concussion were incurred in service and the claim is granted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. ORDER Service connection for post-concussion syndrome, including a neurocognitive deficit, is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.