Citation Nr: 0712987 Decision Date: 05/02/07 Archive Date: 05/15/07 DOCKET NO. 04-42 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for residuals of a head injury, to include depression and anxiety. WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1972 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2006, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The record shows an independent medical expert's opinion was obtained in January 2007 and that the appellant was adequately notified of that opinion and his rights on appeal. The appellant submitted a private medical opinion at his personal hearing in March 2006 and submitted an additional statement in response to the independent medical expert's opinion in April 2007. He has waived further agency of original jurisdiction consideration this evidence. See 38 C.F.R. § 20.1304 (2006). Therefore, the Board finds the case has been adequately developed for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The persuasive evidence of record does not demonstrate residuals of a head injury, to include depression and anxiety, were manifest during active service nor that they developed as a result of an established event, injury, or disease during active service. CONCLUSION OF LAW Residuals of a head injury, to include depression and anxiety, were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). In this case, the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in October 2003. Adequate opportunities to submit evidence and request assistance have been provided. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to this matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Factual Background Service medical records dated May 21, 1976, show the veteran reported he had fallen earlier that day hitting his head and that he could not remember anything since then. It was not indicated how he struck his head. The examiner noted he was alert and oriented times three. There was no evidence of trauma to the skull and no tenderness. Neurologic examination was within normal limits. The examiner's impression was no evidence of significant trauma. A May 21, 1976, radiographic report noted the veteran fell off a track and hit his head on concrete. A skull series examination was normal. The physician's impression was that there was no evidence of significant trauma and the veteran was returned to duty. A May 22, 1976, report noted the veteran claimed of a loss of memory and that he claimed to be totally amnesic as to what had happened. He denied headaches, nausea, vomiting, diplopia, dizziness, and gait disturbance. The examiner noted the veteran was alert and oriented times three. His pupils were equal and reacted to light and accommodation. The fundi were benign and extraocular movements were full without nystagmus. Cervical nerves two through twelve were intact. There were no pathologic reflexes and deep tendon reflexes were 2+ and symmetric. Finger-nose-finger tests were okay. The diagnosis was mild cerebral concussion. The veteran's July 1978 separation examination revealed a normal clinical neurologic evaluation. In a report of medical history the veteran noted problems including head injury, depression or excessive worry, and loss of memory or amnesia. Private hospital records show that on June 24, 1979, the veteran sustained a compression fracture to the cervical spine at C5. It was reported that while diving into a creek, he struck the bottom with the top of his head and was immediately paralyzed. He was rescued by his spouse who instituted resuscitation measures. He was transported to a local hospital emergency room where X-ray studies were obtained. The veteran was then transferred to St. Luke's Hospital. Physical examination of the head was essentially normal. There was a very slight ptosis of the right eye and it was noted that the pupil of the right eye might be slightly smaller than the left. He could lift either leg off the bed, but was weak in the right leg. In the upper extremities, the right forearm muscles, both flexor and extensor groups, were totally paralyzed, as was right grip. The right intrinsic muscles were paralyzed. Right and left triceps jerks were absent. Ankle jerks were absent. X-ray studies revealed a compression fracture of the anterior portion of the body of C-5, with angulation of the spine at C-5, C-6. Statements submitted in support of the veteran's claim note changes in his personality after a May 1976 head injury in service. The veteran also claimed that he sustained no head injury as a result of his June 1979 diving accident and that all present symptoms were incurred as a result of his service injury. VA medical records dated in August 2003 noted a neuropsychological evaluation showed cognition functions were well within the normal range. A September 2003 report included diagnoses of major depression and anxiety. A January 2004 VA aid and attendance examination included diagnoses of essential tremor, dizziness, memory deficits, depression, fatigue, and balance problems. A February 2004 report noted an electroencephalogram (EEG) was normal. The examiner stated there was no evidence of any encephalopathic or epileptiform abnormalities in the record. In an April 2005 private medical opinion Dr. John A. Clough noted that if it was true that the veteran sustained no head injury in his 1979 accident then certainly some of his symptoms including anxiety, short-term memory problems, and possibly the development of tremor could be related to his 1976 fall. It was noted there was no way to definitively prove this, but that the symptoms were consistent with those seen in closed head injuries and traumatic brain injury. The report indicated that the veteran gave Dr. Clough a history of having fallen in the shower in 1979. There is no indication Dr. Clough was provided copies of any medical records. VA neurologic examination in May 2005 noted the veteran's symptoms of anxiety, memory problems, personality changes, and development of tremor could be related to a fall in 1976, but the nurse practitioner stated, in essence, that an opinion as to etiology could not be provided without resort to mere speculation. VA psychiatric disorders examination in June 2005 included an Axis I diagnosis of depression. It was the examiner's opinion that the veteran's depression and anxiety was just as likely secondary to his head injury during service. The veteran submitted medical literature concerning brain injuries in October 2005. These documents are included in the record. During a VA brain and spine disorders examination performed in December 2005, it was noted that medical evaluations reflected no evidence of a dementia or significant memory loss as a result of depression and anxiety and that neuroimaging studies provided no evidence of a severe, remote traumatic brain injury. It was the neurologist's opinion, in essence, that the veteran sustained only a mild head injury in 1976 and that his depression and anxiety could not be associated with that injury because such disorders usually occurred with moderate or severe head injuries and included evidence of significant cognitive impairment. During a December 2005 VA psychiatric examination, it was noted that while research indicated there was a small percentage of individuals who had developed depressive symptoms after mild head injuries, it was less likely than not the veteran's anxiety and depression were related to the head injury sustained in May 1976 during service. In a February 2006 statement Dr. Clough noted medical records had been reviewed and that as service medical records indicated a history of depression or excessive worry and loss of memory or amnesia in July 1978, there was some degree of depression or memory problems prior to his 1979 injury. Dr. Clough related that he was now aware of the details of the 1979 diving accident, to include a fracture of C-5. He also indicated that the veteran's earlier injury resulted in a fall from a vehicle. If this is a reference to the in- service injury in 1976, there is no indication in the service medical records indicating how the veteran stuck his head in 1976, and all contemporaneous records indicate that the veteran could not recall the injury. Once again, the physician was misinformed. Dr. Clough opined that both injuries could have played a role in his present illness, but that it would be speculative to say whether one injury was worse than the other. In a March 2006 private medical opinion, Craig N. Bash, M.D., identified as a neuroradiologist, found a review of medical records showed the veteran's current memory loss, tremors, and psychiatric problems were all due to his service injury. It was noted that VA statements indicating the veteran hit his head and had intracranial damage in 1979 were not supported by the medical records and that repeat neuropsychiatric testing was required because the available VA examinations had wide fluctuations and were non- diagnostic. Dr. Bash also noted that a magnetic resonance imaging (MRI) study of record was as likely as not consistent with a shear injury and that the issue of a diagnosis of post-concussive syndrome should be addressed. It is indicated that Dr. Bash did not personally examine the veteran. At his personal hearing in March 2006 the veteran testified that during service he had fallen off the top of an armored personnel carrier and struck his head on the cement floor of the motor pool. He stated he had been amnesic and did not know how he was transported to the hospital or how he was treated. He reported that for the remainder of his active service he seemed to have experienced more fatigue. He testified that immediately after service he worked at his father's tractor repair business. He reported that he sustained a neck injury in a diving accident after service and had to be resuscitated. The veteran's spouse stated that he had been hospitalized after that accident for 21 days. The veteran testified that he could not recall if during the period after service and before his diving accident he had been hospitalized or had any problems with his head or with dizziness. The veteran's spouse read Dr. Bash's opinion for the record. The veteran stated that he had not been physically examined by Dr. Bash, but that they had spoken in telephone conversations and Dr. Bash had gotten all of his records. An independent medical expert's opinion based upon a review of the appellate record was obtained in January 2007. The physician, Dr. Christopher Randolf, Ph.D., APPN-CN, identified himself as a board-certified clinical neuropsychologist and a clinical professor of neurology at the Loyola University Medical Center with extensive experience in clinical evaluation and research involving traumatic brain injury, including mild traumatic brain injury and concussion. A summary of the pertinent service and post- service medical evidence was provided. Dr. Randolf stated that the record demonstrated the veteran's service injury was at worst a mild uncomplicated concussion. He was neurologically normal, alert, and fully oriented on the day of the injury and on the following day. His intact orientation was noted to tend to rule against any gross confusion and by definition he would have obtained a Glasgow Coma Scale score of 15 on both evaluations. Reference was provided to two published studies concerning the neurological residuals of concussion. It was the opinion of Dr. Randolf that there was no plausible mechanism by which the veteran's injury in service could have eventuated any persistent depression, anxiety, or cognitive impairment. It was unlikely the veteran had any present residual disability as a result of his head injury in service and it was even less likely that he would have experienced any late-onset tremor as a result of this injury. Dr. Randolf expressed agreement with the opinion of the December 2005 VA brain and spine disorders examiner, Dr. Massey, but reported disagreement with the opinion of the December 2005 VA psychiatric examiner, Dr. Fast, that the veteran's depression and anxiety was related to head injury. While acknowledging unfamiliarity of the 1992 medical study referenced in Dr. Fast's December 2005 opinion, Dr. Randolf expressed greater confidence in the work of his institution and in more recently published prospective studies. A statement was provided reiterating the opinion that there was no evidence the veteran's injury in service was anything more than a mild uncomplicated concussion. It was noted that it was conceivable that Dr. Fast had referenced findings from patients with more severe brain injuries. Dr. Randolf also stated that the opinion of Dr. Bash included conclusions that were completely unsupported by the data and that he had mischaracterized the injury, had described symptoms that were not in the medical records (e.g., nausea, vomiting, diplopia, dizziness, gait disturbance), and seemed to have an extremely limited understanding of the natural history of recovery from concussion. It was further noted that the MRI findings he had mentioned were non-specific in nature and were unlikely attributable to the 1976 injury because mild concussions rarely resulted in any identifiable abnormalities on MRI. In an April 2007 statement the veteran, in essence, reiterated his claim and asserted that the opinion of Dr. Randolf was erroneous or based upon outdated information. Without referring to any specific published studies the veteran stated there were new findings concerning head trauma from an "internationally broadcast report" by two VA physicians. It was requested that he be flown out to be examined by these physicians at VA Medical Centers in Palo Alto, California, and Tampa, Florida. The veteran further asserted that the opinions favorable to his claim warranted greater consideration. Analysis Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2006). Based upon the evidence of record, the Board finds residuals of a head injury, to include depression and anxiety, were not manifest during active service and did not develop as a result of an established event, injury, or disease during active service. The opinions of the independent medical expert, Dr. Randolf, and the December 2005 VA neurologist, Dr. Massey, are persuasive in this case. Dr. Randolf's opinion is considered to warrant a greater degree of probative weight based upon the presumed credibility of his independence and upon his demonstrated acquired expertise in the specific medical field at issue. The opinion of Dr. Bash is considered to be of little probative value in light of his apparent reliance upon an inaccurate interpretation of the May 22, 1976, service medical report (misidentified by Dr. Bash as May 24, 1976). He apparently failed to notice that in this statement addressing symptoms the veteran denied headaches, nausea, vomiting, diplopia, dizziness, and gait disturbance. In his report, Dr. Randolf also identified sufficient inconsistencies and provided reference to more recent medical studies as to warrant findings of a lesser degree of probative weight for the opinions of Drs. Bash and Fast. The opinions of Dr. Clough are also considered to be of a lesser degree of probative weight because his opinions are not shown to have included a review of the pertinent May 1976 service medical reports of record. It is significant to note that in his April 2005 report Dr. Clough noted factually inaccurate statements as to the veteran's 1979 injury. At the time of his February 2006 report, however, it appears he was made aware of the more accurate circumstances of the veteran's diving injury and that he stated he had reviewed the veteran's July 1978 service department report of medical history and records from St. Luke's Hospital dated July 24, 1979. The Board finds there is no indication that Dr. Cough was provided copies of the actual report of the veteran's May 1976 treatment in service. The Board further finds that the lay statements of record as to perceived personality changes after the 1976 injury are considered to be of little probative value. These statements were provided many years after the fact. They were also provided by persons with whom the veteran has had long- standing and/or close personal relationships which raises the possibility of bias. Although the veteran and his spouse have asserted that Dr. Randolf may not have considered more a recent VA medical study, a copy of an additional pertinent study was not provided nor was any such study adequately identified. There is no competent evidence demonstrating any deficiency in the independence, thoroughness, or accuracy of Dr. Randolf's opinion. The veteran and his spouse are not licensed medical practitioners and are not competent to offer opinions on questions of medical causation or diagnosis. Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492. The medical evidence against the veteran's claim is unequivocal, thorough, and persuasive. Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to service connection for residuals of a head injury, to include depression and anxiety, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs