Citation Nr: 0809722 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-06 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for post-concussion syndrome with chronic headaches, to include as secondary to a service connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert L. Grant, Associate Counsel INTRODUCTION The veteran had active service from July 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the VA Regional Office (RO) in Phoenix, Arizona which denied entitlement to the benefit sought. FINDING OF FACT Post-concussion syndrome with chronic headaches is shown to be causally or etiologically related to the veteran's service-connected right knee disorder. CONCLUSION OF LAW Post-concussion syndrome with chronic headaches, was proximately due to, or the result of, a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. In a November 1970 rating action, service connection was granted and a 10 percent rating assigned for chondromalacia, patella, and torn medical meniscus, right knee. The veteran essentially contends that in May 1997 he sustained a closed- head injury from a fall caused by instability in his service- connected right knee. A review of medical records does indicate a history of right knee instability. The veteran was seen at the VA hospital in December 1970, approximately eight months after leaving service. By history the veteran reported a right medial meniscectomy with an additional diagnosis of chondromalacia of the right patella. The veteran complained that his right knee was giving way. Although there was no limitation of motion, a mild positive drawer sign was noted along with a slight relaxation of the anterior cruciate ligament, although the examiner noted no lateral instability. The veteran treated with a private physician, Dr. D.G. in May of 1975. At that time the veteran complained of bilateral knee pain and problems relating to his knees suddenly giving way. On examination of the right knee, the physician reported that medial and lateral stability were fair to good, with some early signs of degenerative changes. In terms of the veteran's fall, the veteran was treated at a local emergency room in May 1997 after he fell and lost consciousness. The veteran was reported as being confused with closed head trauma, some nausea and vomiting. A minor abrasion to the left scalp was identified and the impression was syncope and closed head trauma. A private physician, Dr. L.W., treated the veteran in May 1997 immediately after his fall. Dr. L.W. noted that the veteran fell after a syncopal episode. The veteran's wife reported that the veteran arrived at the hospital very lethargic and minimally responsive. The physician's assessment was to admit the veteran with an episode of syncope with some resultant severe headache, and transient loss of consciousness. A VA examination was conducted in November 2004. By way of history the veteran reported instability of his right knee leading up to his 1997 fall. On examination the veteran's right knee was said to be positive for anterior instability. The examiner's impression was that the veteran's right knee was currently unstable and that this instability could have led to the veteran's 1997 fall. A general medical VA examination was conducted in March 2005. The veteran reported post-concussion syndrome with headache, memory deficit, personality change, confusion, and insomnia. The examiner's impression was post-concussion syndrome with chronic headache, as well as residual personality changes with irritability, poor concentration, memory deficits, and anxiety attacks as a consequence of the close head injury. A mental VA examination was conducted in March of 2005. The veteran reported onset of trouble sleeping, and concentrating, after suffering a head injury from a fall in 1997. The examiner's diagnoses included the presence of a closed head injury and post-traumatic headaches. Included in the record is a November 2005 letter from a private physician, Dr. B.A.S., a general practitioner, who treated the veteran for bilateral knee pain in the early 1990s. The physician noted that the veteran's primary complaints were knee pain, periodic locking, and intermittent "giving out" of the right knee. The physician also offered the opinion that the 1997 fall "could have been caused by instability and failure of his knees, particularly the right one." A BVA hearing was held before the undersigned in January of 2008. The veteran offered testimony that he was at work when his right knee gave way and he fell backwards hitting his head on the floor. The veteran testified that there were no witnesses to his fall. The veteran also stated that the next thing he knew he woke up in the hospital three or four days later. Specifically, the veteran asserted that medical records made immediately after his fall discussed syncope because he was unable to report that his knee caused the fall for several days after the accident. Since the incident the veteran states that he can't get out of bed two to three days a week due to severe migraine headaches. The veteran also reported short term memory loss. Applicable law provides that service connection will be granted if it is shown that a veteran suffers from a disability resulting from an injury suffered or a disease contracted in the line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, the record must contain: (1) Medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or a relationship between a current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. "Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone." Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Lay evidence may provide sufficient support for a claim of service connection, and it is error for the Board to require medical evidence to support that lay evidence. See Layno v. Brown, 6 Vet. App. 465 (1994). Based upon a review of the above, it is clear that the veteran sustained a closed-head injury in May of 1997 and that he has a current disability in the form of post- concussion syndrome. The question before the Board is whether there is sufficient evidence to support a finding that the veteran's current disability was proximately caused by the veteran's service connected right knee disability. A November 2005 VA exam indicated that knee instability could have been the cause of the fall and the subsequent concussion. The veteran also has produced a letter from a physician which offered the opinion that right knee instability could have caused the fall. The Board must also consider the veteran's testimony. The veteran asserts that right knee instability caused him to fall and hit his head in May of 1997. Based upon the fact that there are medical records demonstrating that the veteran was complaining of instability of the right knee as far back as 1970 and 1975, and the fact that actual instability was found in the veteran's November 2004 VA exam, the Board concludes that the veteran's explanation of the May 1997 fall is not so inherently incredible as not to be believed. Although medical opinion regarding a relationship between the veteran's knee and the 1997 fall was only offered in terms of possibility, the Board concludes that medical evidence taken in conjunction with the veteran's testimony, after granting the veteran the benefit of the doubt, is sufficient to support this claim. As such, the Board finds that the evidence in this matter supports a finding of service connection for post-concussion syndrome with chronic headaches, secondary to a service connected right knee disability. ORDER Service connection for post-concussion syndrome with chronic headaches, secondary to a service connected right knee disorder is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs