Citation Nr: 0809897 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 94-06 072 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from January 1958 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in St. Paul, Minnesota. The RO in Seattle, Washington thereafter processed the case until June 2004, at which time jurisdiction was transferred to the RO in Portland, Oregon. In July 1999, the Board remanded the case for further development. In an August 2000 decision, the Board denied service connection for residuals of a skull fracture, and also denied entitlement to increased ratings for hearing loss, and denied entitlement to assignment of an earlier effective date for the grant of service connection for post- traumatic stress disorder (PTSD). The veteran appealed the August 2000 Board decision to the United States Court of Appeals for Veterans Claims (Court), and in an April 2003 Order, the Court vacated the August 2000 Board decision and remanded the case back to the Board. Thereafter, the Board remanded the case in April 2004. In March 2005, the Board denied entitlement to an initial compensable evaluation for bilateral hearing loss for the period prior to June 1999, and denied entitlement to an earlier effective date for the grant of service connection for PTSD. The Board remanded the issue of service connection for residuals of a skull fracture. The veteran appealed the Board's decision as to the first two issues to the Court. In a September 2005 Order, the Court dismissed the veteran's appeal as to those issues. Given that the Board, in the decision below, finds the veteran's description of being struck in the head in service to be credible, the Board has recharacterized the issue on appeal to clarify that the issue is the broader one of service connection for a head injury, which will include the claimed skull fracture. Following certification of the case to the Board, the veteran submitted a news article discussing the formation of a new program to study the effects of traumatic brain injuries. He also submitted a duplicate statement and presented argument concerning the adequacy of his VA examinations. Although he did not submit a waiver of initial RO consideration of the above, his submissions are either duplicative or repetitive of those previous considered by the RO, or (in the case of the article) not of evidentiary relevance to the issue at hand. Consequently, remand of the case is not warranted for the RO's initial consideration of the above. See 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The veteran suffered a head injury in service; the injury did not result in a skull fracture or any chronic impairment. 2. The veteran does not have any current residuals of the service head injury, other than service-connected post- traumatic stress disorder (PTSD). CONCLUSION OF LAW The veteran does not have residuals of a head injury that were incurred in or aggravated by active service, nor may service connection be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131, 11375107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in his possession that pertains to the claim. In the present case, VA provided the veteran with the contemplated notice in a June 2004 correspondence, except for notice concerning the initial disability rating and effective date to be assigned in the event service connection is granted for his claimed disorder. He was provided with notice as to those latter two matters in a July 2007 communication, following which his claim was readjudicated in an August 2007 supplemental statement of the case. In any event, given that the Board is denying the claim, a disability rating and effective date will not be assigned, and he therefore can not be prejudiced by any deficiency in notice as to the information and evidence necessary to substantiate those two elements. Although the June 2004 notice was sent years following the May 1998 rating action from which this appeal originates, the Board points out that 38 U.S.C.A. § 5103(a)-compliant notice was first required on November 9, 2000, and that failure to provide such notice before the May 1998 rating action can not, as a matter of law, prejudice the veteran. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes in any event that the RO provided the veteran with correspondence in March 1998 which requested that he submit evidence that his claimed disability was incurred or aggravated in service, and to submit evidence showing treatment of the disorder since service. The Board also notes that following the June 2004 correspondence, the veteran's claim was readjudicated in an October 2004 supplemental statement of the case. The veteran therefore has received the notice to which he is entitled as to his claim, and there is no prejudice flowing from the timing of notice in this case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007) (a supplemental statement of the case can serve as a means of readjudication following 38 U.S.C.A. § 5103(a)-compliant notice; where such notice is followed by a readjudication, any timing error is cured). In short, the June 2004 and July 2007 communications collectively provided 38 U.S.C.A. § 5103(a)-compliant notice, and any timing deficiency has been cured by the issuance of the October 2004 and August 2007 supplemental statements of the case, obviating any need to address whether the veteran was prejudiced by a timing error in this case. Compare Sanders v. Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007) (holding that any error in a Veterans Claims Assistance Act notice should be presumed prejudicial, and that VA has the burden of rebutting this presumption). Based on the procedural history of this case, the Board concludes that VA has complied with any duty to notify obligations set forth in 38 U.S.C.A. § 5103(a). With respect to VA's duty to assist the veteran, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, were obtained by the RO or provided by the veteran himself. 38 U.S.C.A. § 5103A. The Board notes in this regard that he has apparently received psychiatric treatment (which could possibly reference cognitive problems) from several providers whose records are not on file. In a September 2007 communication, for example, he incorrectly asserted that records from the following sources were already on file with VA: Peace Health Counseling; Dr. Harper (medical records for 2000 to 2006); and Dr. Peskind (medical records for 1997 to 2000). It is unclear whether any records from those sources would address the etiology of any claimed head injury residuals (and the Board points out that Drs. Harper and Peskind have already provided statements), but regardless, the veteran has not authorized VA to obtain records from any of those sources. The Board notes that both he and his attorney (who has received a copy of the claims files) are well aware from the statement of the case and multiple supplemental statements of the case of what evidence VA has on file. Pursuant to 38 U.S.C.A. § 5103A(b) (West 2002), VA shall make reasonable efforts to obtain relevant records that the claimant adequately identifies to VA and authorizes VA to obtain. In Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), the Court noted that the duty to assist is not always a one- way street, and if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Here, even assuming that the veteran has adequately identified additional sources of medical records, he has not authorized VA to obtain records from any such source. The Board again points out that the veteran is represented by counsel in this matter. In light of the above, and given that the veteran does not actually contend that any outstanding records would demonstrate a relationship between any current impairment and the service head injury, the Board finds that the duty to assist the veteran in this case with respect to obtaining records has been fulfilled. The veteran requested a hearing before a Decision Review Officer in September 1998. He withdrew his hearing request in a December 1998 statement. The record also reflects that the veteran was afforded several VA examinations in connection with his claim. In his September 2007 statement, the veteran contends that the most recent examinations in May 2007 were inadequate because they were not conducted by a neurologist and a psychiatrist. In point of fact, there is nothing in the record to suggest that the May 2007 examiner was not a neurologist. While neither the April 2005 nor the May 2007 mental disorders examination was conducted by a psychiatrist (they were conducted by psychologists), the Board's April 2005 remand did not require examination by a psychiatrist. Nor has the Court required examination by a psychiatrist. Moreover, although the veteran indicated that the May 2007 neurologist did not understand the purpose of the examination, and did not have all the claims files with him, the examination report suggests that any confusion was on the veteran's part, and the Board has no reason to doubt that he did in fact examine the pertinent portions of the claims files as he stated, particularly given his comprehensive discussion of the evidence in rendering his opinion. The veteran also contends that the May 2007 examinations were internally inconsistent by, on the one hand, determining that the current cognitive impairments were not due to head trauma in service, but on the other hand recommending further testing to determine the etiology of the impairments. The Board points out, however, that if the medical evidence shows it is unlikely that the impairments are etiologically related to service, the matter of the precise etiology of the impairments becomes irrelevant to the legal issue of service connection. The medical opinions were responsive to the issue at hand. The Board notes that the May 2007 VA psychologist indicated that if the RO required a more thorough and comprehensive neuropsychiatric examination in this case, it should contact a particular VA physician. He specified, however, that such additional testing would be beyond the scope of the examination. The Board points out that the examiner was not suggesting that additional neuropsychiatric testing was required to determine whether the claimed cognitive impairments were etiologically related to service. Consequently, the Board finds that the record as constituted is adequate for the purpose of adjudicating the instant claim. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Factual background The service medical records show that when examined for service entrance in January 1958, the veteran had scars located on his left frontal and mid frontal areas. No clinical abnormality of the head was noted. The service medical records are silent for any complaints or findings of a skull fracture, of head injury, or of cognitive or motor difficulties. His examination for discharge documented the left frontal scar; clinical evaluation of the head was otherwise normal. Service personnel records show that at one point in his recruit training, the veteran's conduct and proficiency ratings were, respectively, 2.9 and 3.3. Thereafter until his discharge, with one exception, his conduct and proficiency ratings were at least 4. The records show he served as a bandsman from June to December 1958, as a draftsman from December 1958 to September 1959, and in a security position from October 1959 until his discharge (with some temporary assignments). Private medical records for 1974 and 1983 are silent for any reference to cognitive or motor function impairment, or psychiatric complaints. The report of a January 1977 civil service examination indicates that the veteran's head was normocephalic to examination, with intact cranial nerves. Other medical records from the veteran's employer at the time, and covering the period from January 1977 to September 1978, are silent for any reference to cognitive or psychiatric complaints. On file is an October 1987 Warning of Unacceptable Performance given the veteran for not keeping a daily log; the warning noted that he had failed to update the daily log for seven months in relation to a particular project. The warning also detailed several other areas for improvement. On file are medical records from the veteran's former employer for the period from October 1990 to December 1990. The records document treatment for anxiety and depression associated with his work assignment; he was noted to be involved in an unfavorable employment situation. A February 1994 private medical report notes that he had developed a high degree of post traumatic sensitization with his former employer that had resulted in a paranoid-like process. He was described as suffering from acute stress overload syndrome, and considered unable to focus on his job. In another report prepared by Dr. D. Schaefer, it was noted that work factors had caused depression, which in turn aggravated a preexisting paranoid personality disorder. Dr. Schaefer opined that a change in location would allow the veteran to perform his duties. Of record is a VA mental health clinic note dated in March 1991. The entry records the veteran's report of experiencing anxiety and depression at work. He was noted to be sensitive to primitive kinds of interactions. Mental status examination showed he was alert and oriented, with no impairment of memory, speech abnormalities, or intellect. His fund of general knowledge and judgment were considered good. In a September 1991 statement, D.T. indicates that he served with the veteran, and remembers that the veteran received a beating in March 1958 during a "blanket party," and that the assault was severe enough for the veteran to require assistance in returning to his bunk. The record shows that the veteran filed his first claim with VA in October 1991, at which time he sought service connection for hearing loss. In an attached statement he contended that the hearing loss resulted from a "blanket party" beating in service, during which he lost consciousness. He did not mention any cognitive or psychiatric difficulties, or problems with motor function. In later statements through 1996, the veteran referred to the service head trauma, but did not mention any cognitive or motor function sequelae. He explained that he did not receive treatment in service for his head injury because he was prevented from seeking such treatment. In an October 1997 statement and in December 1997 testimony, he reported that he recently learned he had a cracked skull he believed was related to the beating in service. On file is the report of a September 1993 psychological evaluation of the veteran by Dr. K. Coverstone. Dr. Coverstone noted that the veteran was being treated for depression. He noted, in reviewing psychological test results, that the veteran's functioning was slightly lower than expected, but that the result pattern argued against the presence of an organic mental disorder. Dr. Coverstone did not mention any service head injury. In a March 1995 statement, Dr. S. Rojcewicz indicated that the veteran reported experiencing symptoms including lack of concentration beginning in 1990 (after workplace stress incidents). The veteran described an assault in service which resulted in hearing impairment. In a January 1997 statement, S.K.O. indicates that he observed the veteran on one occasion in service between January and April 1958 with severe swelling, bruises and black and blue marks around the head. In a November 1997 statement, Dr. E. DeVita, a neurologist, explained that he had examined the veteran for complaints of post-traumatic head injury symptoms including memory problems and depression. He indicated that the veteran had suffered a skull fracture in 1958 in the frontal region of the head from an incident in service, and that the veteran had experienced the referenced symptoms since that injury. Neurological examination of the veteran was negative for any abnormalities. Examination of the head revealed what Dr. DeVita described as a linear skull fracture that was healed and non-movable over the frontal region; the fracture was visible on the front part of the veteran's face. The fracture was nontender and well-healed, except as to the mild deformity. Dr. DeVita's impression was of a closed head injury with skull fracture with post-traumatic head injury disorder with obvious cognitive sequelae by reported symptoms. He noted that the veteran had not been tested before to determine the presence of cognitive impairment. He also noted that although a prior diagnostic study of the head in 1990 was normal, without any evidence of a skull fracture, the skull fracture could have been missed. Dr. DeVita suggested that the veteran undergo a neuropsychological examination regarding the cognitive loss. In a November 1997 statement, Dr. A. Peskind, a psychologist, explained that he had treated the veteran since December 1996. He noted that Dr. DeVita's examination revealed a sequelae of injuries, specifically the head injury from the incident in service. He noted that, from a psychological perspective, the veteran had symptoms of PTSD, to which the veteran also attributed his memory loss. Dr. Peskind commented that the major physical sequelae of the in-service assault was the right frontal skull fracture; the primary emotional sequelae was the PTSD; and the primary cognitive sequelae "apparently" involved some cognitive deficits. He explained that further neuropsychological testing was needed to determine what cognitive deficits were actually present. The veteran has submitted several Bulletins from the Good Samaritan Center in support of his claim. The Bulletins discuss frontal lobe injuries, noting that such injuries could result in impaired executive function, and that such impairment might be present despite strong intellectual skills and normal language function. The Bulletins indicate that the frontal lobe regulates behavior, in that it coordinates attention, memory, language, perception, motor function, and social behavior. The Bulletins also address the mechanisms of brain damage in head injury, noting that head injuries can result in cognitive, social and behavioral consequences. The Bulletins indicate that the broad areas of cognition commonly impaired following brain injury are attention and concentration; visual processing; memory; reasoning and judgment; executive functions; and communication. The Bulletins additionally address possible psychosocial consequences following brain injury. During a VA psychiatric examination in March 1998, the veteran indicated that since his in-service beating, he had experienced anxiety and trouble with thinking and performing. He provided the example of losing the ability to read music in service. He indicated that he recently became aware of a defect in his skull. The examiner noted that the veteran's work history demonstrated a pattern of obtaining progressively higher paying jobs, but noted the veteran's assertion of current difficulty in school. Physical examination showed an indentation on the right forehead, with a thinning of the scalp starting in the mid-right frontal area and running backward up into the parietal region where it disappeared. There was no distinct lack of skull beneath the scalp thinning. Mental status examination showed that the veteran was alert and oriented, but was circumstantial in speech and had to be redirected. Cognitive testing suggested lowered performance in concentration, attention, and difficulty with abstract reasoning and memory. The examiner concluded that the pertinent diagnosis for the veteran was possible residuals of closed head injury. The examiner clarified that the issue of possible brain damage remained unsettled, explaining that the cognitive tests performed were inadequate for revealing subtle brain damage. He recommended neuropsychological testing to determine the presence of brain damage. The examiner explained that even if such testing did reveal brain damage, any damage would be subtle, and would account for only a small portion of his difficulty in light of his ability to function in positions of considerable responsibility for many years. The examiner noted that the veteran's psychiatric problems represented the predominant disability picture. The veteran was diagnosed as having PTSD, major depression, and a cognitive disorder not otherwise specified. The examiner also offered an Axis III diagnosis of possible residuals of a closed head injury, pending results of neuropsychological evaluation. In a report dated in March 1998, a private neuropsychologist, Dr. L. D.-W., related that she had examined the veteran that month, and had reviewed his available medical records. She noted that another physician had suspected the presence of a learning disorder in the veteran since at least high school, based on his self-report of trouble reading and retaining information. She noted that he reported experiencing a beating during service with loss of consciousness and a resulting skull fracture. She noted that he did not receive medical attention for the injuries, and that the veteran denied a history of any other blows to his head resulting in unconsciousness. He reported first noticing attention problems in 1965, although he explained that he noticed problems with reading music soon following the service assault. His current complaints included attention, memory, and information retention problems, as well as mild problems with word finding. His wife reported noticing his problems with problem solving and executive functions, particularly after losing his job in 1990. Following examination of the veteran, he was diagnosed as having a history of head trauma with skull fracture. Dr. D.- W. commented that the veteran had an extremely complicated medical and psychiatric history with significant ongoing depression that made it very difficult to determine the relative contribution of various factors to his documented cognitive difficulties. She noted that her neuropsychological testing of the veteran revealed cognitive deficits, as well as motor abnormalities which were not clearly lateralized to either cerebral hemisphere. In a January 1998 letter, the U.S. Marine Corps indicated that any record of a courts-martial for the veteran's staff sergeant in service would have been destroyed. In a letter dated in April 1998, the U.S. Marine Corps indicated that a review of the veteran's service records did not show any information concerning the alleged incident to which the veteran had referred in letters he wrote (namely, the "blanket party"). An August 2004 diagnostic study of the veteran's head revealed findings compatible with atrophy of the cortical sulci. On file is a September 2004 psychiatric examination report of the veteran by Dr. S. Melnick, in connection with his receipt of Workers Compensation benefits through the Department of Labor. The veteran reported noticing memory problems starting immediately after the service assault, when he could no longer read music. He indicated that his memory loss worsened after the work stress incident in 1990 or 1991. He also reported attention problems. He explained that the work environment at his last job was hostile from the moment he started working in 1986, and that he was actively pursuing his EEOC complaint against his former employer. The veteran reported that he repeated the third grade, and had dropped out of high school. He described his job history, noting that he left some jobs for greater pay or promotion opportunities, and left others because of conflicts. Dr. Melnick did not perform formal cognitive testing, and noted that psychological testing was possibly invalid because of exaggeration. She explained that several aspects of the testing were, however, clinically corroborated, such as confusion and memory problems. She noted that past testing had revealed a lifetime reading and learning disorder. She noted that he now had diagnostic evidence of Alzheimer or vascular-type dementia. Dr. Melnick concluded that the veteran's cognitive disorder emerged around 1998, and was of unknown etiology. She noted that the personality disorders and learning disabilities predisposed him to the difficulties he experienced at his job since 1986. She also noted that following his 1991 termination, he remembered the service assault, and expanded his focus on getting justice for that beating. With respect to the effect of the in-service beating, Dr. Melnick concluded that it had led to PTSD, but that his personality disorders likely preexisted the beating. She indicated that she did not believe he was malingering. In a January 2005 statement, Dr. J. Harper indicated that he has treated the veteran since 2002 for major depression and PTSD, and that he now likely suffers from a neurocognitive disorder. Dr. Harper noted that the veteran's depression stemmed from the workplace incidents. The veteran attended an April 2005 VA psychological examination. He reported that he still experienced residuals from a severe beating in service. He related that he was told he had a prior injury to the left forehead, and maintained that he had a skull fracture on the right forehead. He indicated that he did not recall anything about the incident in service until around 1978. He reported that he was a poor student even prior to service, and dropped out of high school. During service, he would attend classes only once before quitting; he was not able to clearly explain to the examiner how he knew he could not do the coursework in service when he never attended the classes. The veteran reported holding a number of jobs between 1961 and 1977, and indicated that he was fired from his last job after encountering a stressful work environment. The examiner noted that the evidence was conflicting as to whether the veteran ever had a skull fracture, and noted that there was no evidence showing that any skull fracture was incurred in service. The examiner also reviewed the veteran's performance ratings in service, and concluded that the ratings suggested that the service assault did not affect conduct or performance. The examiner also noted the absence of medical sequelae or cognitive deficits in the service medical records. Mental status examination was considered marginally valid, at most, because of lack of full cooperation by the veteran. The examiner specifically noted that the veteran's performance was suggestive of conscious malingering, and provided examples in support of his determination. The examiner reviewed Dr. D.-W.'s report, noting that the results argued against lateralized deficits in cortical functioning. He also noted that the results showed intellectual functioning consistent with the veteran's pre-service academic performance, and that the results did not show any evidence of impairment in cognitive functioning. The examiner diagnosed the veteran as malingering, and also diagnosed him with an undifferentiated somatoform disorder, a dysthymic disorder, and two types of personality disorders. With respect to the matter of whether the veteran experienced a brain injury in service, the examiner concluded that the veteran's conduct and proficiency ratings were inconsistent with the occurrence of significant brain injury. He noted that the service records did not show treatment for any type of head injury or of deterioration in function. He further explained that the records did not show the kind of cognitive problems characteristic of head injury during the veteran's three years of service, although such cognitive problems would have been the most severe immediately following the injury, followed by a pattern of improvement. He noted that this pattern was not shown in the veteran's case. The examiner concluded that if the veteran had received a head injury in service, he did not experience measurable residuals or impaired functioning as a result. He further concluded, after reviewing certain medical records and the veteran's family history, that the more likely source of any cognitive problems was familial cortical atrophy. The examiner opined that the veteran's psychiatric and other problems were not due to any event in service. He lastly explained that the veteran's reported difficulties with coursework in and after service were more consistent with motivational or psychological problems, rather than with cognitive limitation. At his April 2005 VA neurological examination, the veteran explained that he was beaten to unconsciousness in service, and was refused medical attention, despite severe ecchymosis of the face. He recalled that his head was painful, but did not recall any swelling. He indicated that he was forced to participate in training the next day for a short time, but then allowed to rest, only to return to training two days later. The veteran presented service personnel records which showed he was downgraded during basic training. He indicated that he was never able to read music again after the beating. He also explained that he was selected for several other positions in service, but that he found he was unable to learn new things, and was placed in a position which did not require much intellectual capacity. He indicated that sometime in the 1970s, he noticed that his left hand was weaker and less coordinated than his right. He also reported that throughout his life, he has experienced deficiency in memory retention. His last job was as a resident engineer, where he was fired for poor performance after more than three years. He reported continued difficulty in coursework. The examiner noted that a recent diagnostic study of the veteran's head revealed mild atrophy of the cortical sulci, and that recent electromyography studies of the left lower extremity revealed findings consistent with spinal stenosis. Physical examination showed his head was normocephalic. There was a small well-healed scar on the left forehead and mid-frontal area, and a defect in the bony calvarium in the right frontal parietal area above the hairline, extending about 1.5 inches. The examiner described the defect as compatible with a skull fracture. Neurological examination was normal, except for diminished strength in the non- dominant left arm. The veteran would not, or could not, raise his left knee against resistance, although the left thigh had more muscle than the right. Tests of fine motor coordination were poorly performed. Reflexes were not pathologic. The examiner did not conduct tests of cognitive function or otherwise mention any mental status findings. He diagnosed cognitive disorder with evidence of mild cerebral atrophy; closed head injury incurred on active duty; coordination and motor disability of the left upper and lower extremities with evidence suggesting poly radiculopathy from spinal cord or nerve root impingement; PTSD; and dysthymia. The examiner described the veteran's story was plausible, commenting that the veteran was too immature at the age of 17 to realize the extent of his injuries and too intimidated to do anything about the injuries. He also commented that the "cover-up by his superiors would almost be expected." He noted that losing the ability to read music alone demonstrated the mental changes following the injury. he concluded that the veteran's cognitive dysfunction was most likely caused by or a result of the beating in service. He explained that the left-sided neurological symptoms were probably secondary to problems with the spine rather than with left hemiparesis from a right parietal injury. At a May 2007 neurological examination, the examiner noted that there was no documentation of the beating incident, or more importantly of any objective observations of loss of consciousness, signs of central nervous system damage (such as lethargy, diplopia, disequilibrium, nausea, or vomiting) during the 24-hour period following the incident, or any other sequelae. He noted that the remainder of the service medical records following the purported assault were silent for any neurological symptoms such as seizures, discoordination, or other physical or psychological abnormalities suggestive of brain injury. The examiner noted that the radiculopathy the veteran had affecting his left upper and lower extremities would not be the result of any brain impairment. Physical examination showed a very slight linear bony irregularity on the right, but with an identical irregularity on the left. The examiner also noted that while there was a slight depression in the skull on the right, there was an identical depression on the left. The examiner concluded, given the symmetry of the bony defects, that nothing about the irregularities suggested a skull fracture versus normal variant of the skull or an accessory "suture" originating in early childhood. Mental status examination showed that the veteran's memory was intact in several respects. There was some dysmetria with testing of fine motor coordination. There was symmetrically reduced motor strength in the upper extremities. There were some abnormalities on sensory examination, with some lack of cooperation by the veteran; the examiner questioned the validity of the veteran's responses on testing, in light of prior diagnostic studies. The examiner diagnosed mild cerebral atrophy based on the August 2004 diagnostic study; variable cognitive and behavioral problems by history; and minor, nonspecific peripheral neurologic abnormalities. Turning to the question of whether the veteran had a skull fracture, the examiner concluded that the prior finding of a skull fracture by Dr. DeVita was invalid, given that a diagnosis of skull fracture based on palpation alone (without diagnostic studies) is only possible where there has been a "major" trauma, usually a depressed fracture with subsequent neurosurgical intervention. He explained that a diagnostic study would be expected to miss a skull fracture only where the fracture is that of a small fracture line. He further explained that the disfiguring type of fracture with bony displacement that can be seen on the face (as described by Dr. DeVita) is not the type that can be missed on a computed tomography scan. He also noted that subsequent diagnostic studies have shown no bony abnormality. Turning to whether, regardless of the presence of a resulting skull fracture, the service beating resulted in impairment, the examiner noted that the medical records on file do not suggest the presence of lateralizing signs or seizures, and the service medical records do not suggest the presence of loss of consciousness, or signs of central nervous system damage during the 24-hour period following the incident. The examiner noted that the veteran's report of being unable to read music after the beating was consistent with traumatic brain injury. He noted that the veteran nevertheless moved up through positions of increasing job responsibility with complexity in his life, with little evidence of cognitive impairment, although he might have had behavioral maladaption. The examiner noted that the mild atrophy shown on diagnostic studies was bilateral, and not consistent with an injury which might have been caused by a skull fracture in the right temporal area. He also noted that the neuropathies afflicting the veteran were consistent with spinal disorders, and not brain injury, and that it was unlikely that those neuropathies were related to the claimed incident in service. The examiner concluded that while the veteran might have experienced symptoms of traumatic brain injury during the early 1960s, there was little evidence that any cognitive disabilities persisted thereafter. Therefore, it was unlikely that the current cognitive disabilities, or cortical atrophy, was a result of traumatic brain injury in service. He also concluded that it was unlikely that the veteran had a significant skull fracture, or that any such fracture contributed to the cortical atrophy and associated cognitive impairment. The veteran was examined by a VA psychologist in May 2007. The examiner concluded that the veteran's cognitive impairments with diffuse cortical atrophy were not likely caused by head trauma in service. He concurred with the April 2005 psychologist as to the veteran's academic and vocational failure being due to motivational and psychological factors. On file are July 2007 statements Dr. M. Malos. He indicates that recent diagnostic studies of the veteran's brain showed a benign lipoma below the inferior caliculus; he concluded that the brain findings were unrelated to any mental disorders. He noted that the veteran reported experiencing cognitive problems since service. He noted that palpation of the skull revealed a right parasaggital groove of the frontal region which was consistent with an old healed fracture. He noted that review of a recent Magnetic Resonance Imaging study showed no evidence of a healed skull fracture. In August 2007, the veteran submitted statement with several questions answered by Dr. M. Malos. The answer was "yes" to the question "Can a skull fracture taken by an MRI and CT scan be missed, due to the well healed skull fracture?" The answer was "yes" to the question "Can a [c]ognitive d[y]sfunction occur from one who has a skull fracture?" To the question "Do you agree the report I showed you of a 1998 [neuropsychological evaluation] from [Dr. D.-W.] shows an accurate diagnosis and recommendations?", the answer was "No comment. I am not a neuropsychologist." In several statements, the veteran maintains that the beating in service resulted in a skull fracture, and that the residuals of the beating are manifested primarily by brain damage, as evidenced by his adverse job pattern and social problems. He contends that he now does recall experiencing memory loss since the service head injury, and argues that the memory loss had affected his jobs since that time. He has submitted a video cassette of a motion picture depicting a "Code Red" performed on one Marine by two other Marines. The veteran contends that a physician has concluded that the trauma from the service beating possibly produced neurological consequences that were not recognized until years later Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service incurrence of an organic disease of the nervous system during peacetime service after December 31, 1946, may be presumed if manifested to a compensable degree within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service medical records are silent for any reference to a head injury or other injuries stemming from the claimed assault in service, and the U.S. Marine Corps has indicated that it does not possess any records suggesting such an assault took place (despite the veteran's assertion that an investigation was initiated, and that his sergeant was tried for the incident). Nevertheless, given the corroborative statements by service comrades, the Board finds the veteran's statements as to the occurrence of a head injury during an assault in service to be credible. After reviewing the evidence of record, the Board concludes that the preponderance of the evidence is against the claim. In this regard, although the veteran's assertions concerning the occurrence of a head injury in service are credible, the Board finds that his account of experiencing a skull fracture from the assault, and of experiencing cognitive and motor function impairment since the assault to lack credibility. The service medical records are entirely silent for any finding of a skull fracture, or for any complaints or finding of pertinent complaints. Although the veteran explains that he was not initially allowed to seek treatment for his injuries, the Board points out that he remained in service for almost three years after the incident, and does not contend that he was continually prevented from reporting any problems. Moreover, given that the veteran contends that he did report the assault to authorities, he clearly was not prevented from seeking treatment (if at all) for more than a brief period. Although he points to the one low performance rating earned during recruit training, as well as his varied job assignments in service as evidence of the presence of cognitive impairment, he admits that he served time in the brig during basic training for the very incident which purportedly incited the service assault. Moreover, his performance ratings following basic training were exemplary. Although he was in the band for only several months, his performance ratings were high, and he served in his next specialty for almost a year with exemplary performance and conduct ratings. Moreover, there is no postservice evidence of a skull fracture or of cognitive or motor function impairment until decades after service, despite the veteran's assertion that he had experienced at least cognitive impairment since the assault. The first reference to cognitive impairment occurred in 1990 following workplace harassment. The first reference to motor function impairment occurred many years after the workplace incident. The first reference to a possible skull fracture was in 1997, several years after a diagnostic study showed no evidence of such a fracture. The Board finds it particularly noteworthy that when he filed his first claim in October 1991, he did not mention any cognitive or motor function impairment associated with the service assault. Rather, he only reported experiencing hearing loss as a result. In fact, it was not until 1997 that he began to allege that he had noticed cognitive residuals immediately following the assault. Given the absence of any documentation of pertinent complaints in the service medical records, in any postservice record until 1990, and in any claim prior to 1997 when he "discovered" a skull fracture, the Board finds that his statements as to symptoms in service and their continuity prior to 1990 to be inconsistent with the record and to otherwise lack credibility. Turning to the medical evidence of record, and with respect to the claimed skull fracture, the Board finds that the evidence is, at best, equivocal as to whether any such fracture even exists. Dr. DeVita's diagnosis of a skull fracture was based solely on his palpation of the skull and the veteran's assertions concerning a skull fracture in service. Dr. Peskind's conclusion that the physical sequelae of the service assault was a fractured skull was based on Dr. DeVita's findings, and not on his own physical examination. Dr. D.-W. diagnosed a skull fracture by history, and did not physically examine the skull. The April 2005 VA examiner described the veteran's right frontal defect as compatible with a skull fracture. He did not provide findings as to the left frontal area. In contrast, the May 2007 VA neurologist, after reviewing the prior medical opinions on file, noted that his physical examination of the veteran's skull revealed that there was a symmetrical defect over the left frontal area as well, suggesting that the defect represented a developmental defect or normal variant, rather than a skull fracture. He challenged Dr. DeVita's diagnosis, explaining that diagnosing a skull fracture by palpation of the skull alone was inappropriate in the veteran's case. The neurologist also found it significant that diagnostic studies of the veteran's skull consistently demonstrates the absence of a fracture, and he explained that Dr. DeVita's belief that such studies could miss the presence of such a fracture was incorrect in the case of a defect the size of that in the veteran. The Board notes that while Dr. Manlos also indicated that a fracture could be missed on diagnostic studies, he did not specify whether this was true for all fractures, including one as large as to cause a defect the size of that in the veteran. The Board accords the opinion of the May 2007 VA examiner greater probative value than the opinions of Drs. DeVita, Peskind and D.-W., the April 2005 VA neurologist, and the opinions of the veteran himself. The Board finds it particularly persuasive that the May 2007 examiner extended his evaluation to both sides of the veteran's skull, providing findings not mentioned (and perhaps not even noticed) by the other physicians, and also providing an explanation of the significance of the symmetry in skull defects. His opinion is also supported by the consistent absence on diagnostic studies of any evidence of a skull fracture, and the Board finds his explanation persuasive as to the likelihood that a skull fracture resulting in a defect as large as that in the veteran would be detected on such studies. The other opinions are based on mere palpation of the veteran's skull. The Board notes that a skull fracture is not the type of medical condition subject to lay diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), In short, while the evidence shows that the veteran does have a skull defect, the preponderance of the evidence shows that the defect is not the result of a skull fracture. Even assuming, however, that the defect does represent a skull fracture, the preponderance of the evidence shows that it is not related to service or the service assault. In this regard, there is no evidence concerning the defect in service or until 1997. A diagnostic study in 1990 did not reveal any skull fracture. As already noted, the opinions of Dr. DeVita and Dr. Manlos that a skull fracture could be missed on such studies is contradicted by the May 2007 examiner's explanation that such would be true only for a skull fracture of a much smaller size than that involved in the veteran's case. The May 2007 examiners concluded that any current skull fracture did not originate in service. The Board finds that those opinions are better supported by the actual evidence of record than the opinions of Drs. DeVita, Peskind and D.-W., or the opinion of the April 2005 VA neurologist. The Board consequently finds that the preponderance of the evidence shows that any current skull fracture or defect is not related to service or any injury in service. In summary, there is no competent or credible evidence of a skull fracture in service, and the more probative evidence of record indicates that any skull fracture that the veteran does have is not related to service. Turning to the claimed cognitive impairment, the evidence in support of the veteran's claim arguably consists of the opinions of Drs. DeVita, Peskind, and D.-W., as well as the March 1998 examiner and April 2005 neurologist. Notably, however, although Dr. DeVita concluded that the veteran had cognitive sequelae of the head injury in service, he clarified that his opinion was based on the veteran's own report of symptoms, and not on confirmation of any cognitive problems. In fact, Dr. DeVita specifically acknowledged that testing to determine the presence of cognitive impairment had not been accomplished, and recommended such testing. Dr. Peskind indicated only that the head injury "apparently" involved cognitive impairment, suggesting that he also was relying on the veteran's account of symptoms since service. Dr. Peskind also recommended further testing to determine any cognitive impairment. In other words, both Dr. DeVita and Dr. Peskind based their opinions as to the presence and etiology of cognitive impairment on the veteran's own account. As discussed previously, the Board has found the veteran's account of the presence of cognitive impairment prior to 1990 to lack credibility. The Board consequently finds that the opinions of Dr. DeVita and Dr. Peskind lack probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (a medical opinion premised upon an unsubstantiated account is of no probative value). The March 1998 VA examiner, while noting some cognitive abnormalities on testing, clarified that he did not know whether this represented brain injury rather than a symptom of psychiatric disability. He also recommended further testing. Dr. D.-W. did accomplish the neuropsychological testing, but explained that while the testing showed cognitive deficits, the relative contribution of various factors to that impairment remained unclear. In other words, Dr. D.-W. confirmed the presence of cognitive deficits, but did not provide a clear opinion as to the etiology of those deficits. The April 2005 VA neurologist concluded that the current cognitive complaints were due to the head injury in service. His opinion was based on the veteran's account of symptoms following the head injury. Specifically, the claimed loss of the ability to read music. As already noted, the Board has found this account by the veteran of cognitive deficits in service to lack credibility, particularly in light of his performance reports. The Board also finds unpersuasive the examiner's speculation that the veteran was too immature and intimidated in service to either recognize cognitive deficits or to seek treatment for such symptoms. In this regard the Board points out that if the veteran had the courage to report the assault to the proper authorities (and to participate in the courts-martial of his sergeant), then there is no reason to believe that he would be too intimidated to also seek treatment for his complaints. Moreover, the Board finds it unlikely that a musician, even if still a teenager, who suddenly loses the ability to read music would lack the maturity to recognize the deficit as one meriting medical attention. In contrast, the record contains the opinions of the April 2005 VA psychologist and May 2007 VA neurologist and psychologist. Each of those examiners, after reviewing the record and examining the veteran, concluded that the veteran's cognitive deficits were not the result of the service assault. The opinions were based on a review of the service medical records showing the absence of the type of complaints expected following a head injury, his performance ratings suggesting the absence of any impact of the head injury on performance or conduct, the absence of any evidence of cognitive deficits or impaired work performance until decades after service, and the veteran's conduct on examination, which reflected considerable investment in seeking justice for the assault and which at one point suggested malingering. The opinions also noted more likely (and nonservice-related) etiologies for the cognitive deficits, including vascular-type dementia, and lifetime learning deficits. The Board notes that the opinions are not only supported by the evidence of record, but also by Dr. Coverstone's belief that psychological testing was not suggestive of organic brain impairment, and by Dr. Melnick's statement that the cognitive impairment began in 1998, and remained of unclear etiology. The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. See Madden v. Gober, 125 F.3d. 1477, 1481 (Fed. Cir. 1997); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). For the reasons stated above, and in the context of the evidence of record, the Board places greater weight on the May 2007 VA opinions in particular, than on the opinions of Drs. DeVita, Peskind, or D.-W., or those of the March 1998 VA examiner and April 2005 VA neurologist. As already explained, the opinions supportive of the claim are based on a history supplied by the veteran which is not considered credible, and which is not corroborated by contemporaneous evidence. Those opinions are therefore of no probative value. Reonal v. Brown, 5 Vet. App. 458, 460 (1993). The Board notes that the veteran has submitted several medical articles discussing the effects of brain injuries. To the extent he suggests that the articles suffice to link his current cognitive deficits to his period of service, the Board points out that the articles are general in nature and do not purport to address the veteran's particular medical situation, and are otherwise too generic to constitute competent medical evidence in support of his claim. Sacks v. West, 11 Vet. App. 314 (1998). The Board also notes that to the extent the veteran himself believes his cognitive deficits are related to the service head injury, as a layperson, his statements as to medical causation do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Although he also asserts that a certain physician informed him that his cognitive problems could be related to service, the only statement on file from the referenced physician does not corroborate his account. Turning to the claimed motor function impairment, the only medical opinions addressing the etiology of such impairment are against the claim. The April 2005 VA neurologist explained that the motor function deficits likely resulted from a spinal disorder. The May 2007 neurologist concluded that the veteran's head injury would not be responsible for any current motor deficits. Dr. D.-W. noted that the veteran's deficits were not clearly lateralized to either cerebral hemisphere. Although the veteran himself contends that his head injury resulted in motor function impairment, as a layperson, his statements as to medical causation do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, the preponderance of the evidence shows that any current motor function deficits are not attributable to service. In sum, the record shows that although the veteran sustained a head injury in service, he did not develop an associated skull fracture or other chronic sequelae from the injury. There is no competent and credible evidence demonstrating the presence of any cognitive or motor function deficits in service or until decades thereafter, and the evidence as a whole does not show that any such deficits are etiologically related to service, or that the veteran otherwise has any residuals from his head injury. The Board therefore concludes that the preponderance of the evidence is against the claim of entitlement to service connection for residuals of a head injury. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The veteran's claim is denied. ORDER Entitlement to service connection for residuals of a head injury is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs