Citation Nr: 1007346	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  03-05 448	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUES

1.  Entitlement to service connection for blackouts.

2.  Entitlement to service connection for impaired vision.

3.  Entitlement to service connection for a psychiatric 
disorder.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

P. Childers, Associate Counsel
INTRODUCTION

The Veteran, who is the appellant, served on active duty from 
April 1963 to March 1965 and from May 1965 to May 1968.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision in June 2002 of a Department 
of Veterans Affairs (VA) Regional Office (RO).

In February 2005, the Veteran appeared at a hearing before a 
Veterans Law Judge.  

In a decision in September 2005, the Board reopened the 
claims of service connection for blackouts, impaired vision, 
and a psychiatric disorder, and remanded the claims for 
additional development.

During the pendency of the appeal, in a rating decision in 
July 2006, the RO granted service connection for residuals of 
head injury with headaches and dizziness.

In September 2007, the Board afforded the Veteran the 
opportunity for another hearing as the Veterans Law Judge, 
who conducted the hearing in 2005, was no longer at the 
Board.   The Veteran has not indicated that he wants another 
hearing.

In documents received in March 2007 and December 2007, the 
Veteran raised the claim of service connection for neuropathy 
secondary to exposure to herbicides, and the claim for an 
earlier effective date for the grant of service connection 
for residuals of a head injury to include headaches and 
dizziness, which are referred to the RO for appropriate 
action. 

In September 2005 and in March 2008, the Board remanded the 
claims for additional development.  As the requested 
development has been completed, no further action is 
necessary to comply with the Board's remand directives.  
Stegall v. West, 11 Vet. App. 268 (1998). 

The claims of service connection for impaired vision and for 
a psychiatric disorder are REMANDED to the RO via the Appeals 
Management Center (AMC), in Washington, DC.  


FINDING OF FACT

Blackouts are causally related to the service-connected 
residuals of head injury with headaches and dizziness.


CONCLUSION OF LAW


Blackouts are proximately due to the service-connected 
residuals of head injury with headaches and dizziness.  38 
U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. 
§ 3.310(a). 

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate a claim.  

As the claim of service connection for blackouts, the only 
claim decided, is resolved in the Veteran's favor, the Board 
need not address VCAA compliance. 




REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
military service.  38 U.S.C.A. § 1110, 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred coincident with service, or if 
preexisting such service, was aggravated by service.  This 
may be accomplished by affirmatively showing inception or 
aggravation during service.  38 C.F.R. § 3.303(a).

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.  If chronicity in service 
is not established, a showing of continuity of symptoms after 
discharge is required to support the claim.  38 C.F.R. 
§ 3.303(b). 

Service connection may also be granted for a disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d).

Secondary service connection may be granted for a disability 
that is proximately due to or the result of a service-
connected disability.  38 C.F.R. § 3.310(a).  Secondary 
service connection includes the concept of aggravation of a 
nonservice-connected disability by a service-connected 
disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  In 
October 2006, 38 C.F.R. § 3.310(a) was amended to conform 
with Allen, additionally, other substantive changes were 
made.  As the claim was filed before the other substantive 
changes were made, only the changes that conform to Allen 
apply.



Evidentiary Standards 

VA must give due consideration to all pertinent medical and 
lay evidence in a case where a veteran is seeking service 
connection.  38 U.S.C.A. § 1154(a).  The Veteran does not 
argue, and the record does not show, that the claimed 
disability was the result of participation in combat with the 
enemy and the combat provision of 38 U.S.C.A. § 1154(b) does 
not apply. 

Competency is a legal concept in determining whether medical 
or lay evidence may be considered, in other words, whether 
the evidence is admissible as distinguished from weight and 
credibility, a factual determination going to the probative 
value of the evidence, that is, does the evidence tend to 
prove a fact, once the evidence has been admitted.   Rucker 
v. Brown, 10 Vet. App. 67, 74 (1997). 

Competent lay evidence means any evidence not requiring that 
the proponent have specialized education, training, or 
experience.  Lay evidence is competent if it is provided by a 
person who has knowledge of facts or circumstances and 
conveys matters that can be observed and described by a lay 
person.  38 C.F.R. § 3.159.

Competent medical evidence means evidence provided by a 
person who is qualified through education, training, or 
experience to offer a medical diagnosis, statement, or 
opinion.  38 C.F.R. § 3.159.

The Board, as fact finder, must determine the probative value 
or weight of the admissible evidence.  Washington v. 
Nichloson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. 
Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in 
veterans cases is to be done by the Board)). 

When there is an approximate balance of positive and negative 
admissible evidence regarding any issue material to the 
determination of a matter, the Secretary shall give the 
benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b). 



Blackouts

Facts 

The Veteran seeks service connection for blackouts.  In 
statements and in testimony, the Veteran asserts that he lost 
consciousness on two separate occasions during service 
following blows to the back of the head and that he has 
suffered from blackouts since then. 

The service treatment records contain no complaint, finding, 
history, treatment, or diagnosis of blackouts. 

After service, private medical records show that in May 1999 
the Veteran gave a history of head injuries in service when 
he fell off a truck and hit the back of his head in 1964 and 
when he was hit in the back of the head in 1967 and in each 
instance he had loss of consciousness.  In July 2002, the 
Veteran was evaluated for residuals of head injuries.  The 
assessment was head injury with problems with headache and 
dizziness and temporary blackout.  A CT scan of the brain was 
normal.  In 2005, the Veteran was seen several times for 
dizziness and blackouts. 

In a statement in August 2000, F.A., stated that in 1966 or 
1967 in Vietnam he and the Veteran were returning from work 
when they came upon a fight and when the Veteran tried to 
stop the fight he was hit from behind by a soldier with an 
entrenching tool and knocked unconscious. 

In a statement in February 2005, L.E., MD, stated that the 
Veteran's headaches, dizziness, and blackouts were most 
likely due to the head trauma in 1964 (fell from a truck) and 
in 1967 (hit with an entrenching tool). 

On VA examination in January 2006, the Veteran was evaluated 
for the head injuries sustained in service.  After describing 
the two head injuries (fell and hit his head in 1964 and was 
hit in the head with an entrenching tool in 1967), the 
Veteran stated he had lost consciousness after each incident 
and that he has had brief blackouts since then.  The 
diagnosis was status post head injuries in the military.  The 
VA examiner expressed the opinion that the etiology of the 
blackouts was uncertain, but it was reasonable that a person, 
who had a post-traumatic headache syndrome may have brief 
episodes of syncope to go along with the above condition. 

In a rating decision in July 2006, the RO granted service 
connection for the residuals of head injury with headaches 
and dizziness. 

On VA examination in September 2006, the same VA examiner, 
who conducted the examination in January 2006, stated that 
the brief history of blackouts during service were at least 
as likely as not to be secondary to the in-service head 
trauma.  The VA examiner also stated that he could not be 
sure without resorting to mere speculation that any recent 
blackouts were related to the head injuries in service. 

Analysis

The Veteran is already service-connected for residuals of 
head injury with headaches and dizziness.  The remaining 
question is whether the blackouts are related to the service-
connected disability. 

A private physician has expressed the opinion that the 
Veteran's headaches, dizziness, and blackouts were most 
likely due to the head trauma in 1964 (fell from a truck) and 
in 1967 (hit with an entrenching tool).  On VA examination in 
January 2006, the VA examiner expressed the opinion that the 
etiology of the blackouts was uncertain, but it was 
reasonable that a person, who had a post-traumatic headache 
syndrome may have brief episodes of syncope.  To this extent, 
head injury in service, residuals of headaches and dizziness, 
and blackouts in service and since service, the Board finds 
both opinions to favorable to the claim.  Although the same 
VA examiner later stated that he that could not be sure 
without resorting to mere speculation that any recent 
blackouts were related to the head injuries in service.



When, after careful consideration of the entire record, a 
reasonable doubt arises regarding a material fact, one upon 
which the outcome of the case turns, such doubt will be 
resolved in favor of the Veteran.  By reasonable doubt is 
meant one which exists because of an approximate balance of 
positive and negative evidence which does not satisfactorily 
prove or disprove the claim.  38 C.F.R. § 3.102.  

In this case, the significant facts are not disputed, namely, 
the Veteran sustained head injuries in service and has 
residuals of headaches and dizziness, which are service 
connected, and the Veteran experience blackouts in service 
and since service.  Although the same set of facts were 
considered in the opinions of the private physician and the 
VA examiner, the VA examiner ultimately reached a 
contradictory conclusion that he could not be sure without 
resorting to mere speculation that any recent blackouts were 
related to the head injuries in service.  To this extent, the 
opinion opposes the claim. 

As two physicians, considering the same set of facts, have 
reached contradictory opinions, the Board finds that there is 
an approximate balance of positive and negative evidence, 
which does not satisfactorily prove or disprove the claim of 
secondary service connection.  Under these circumstances, as 
there is a reasonable doubt regarding whether blackouts are 
residuals of service-connected head injury,  such doubt is 
resolved in favor of the Veteran.  38 C.F.R. § 3.102.

Accordingly, and resolving reasonable doubt in favor of the 
Veteran, the Board finds that service connection for 
blackouts secondary to the service-connected residuals of 
head injury with headaches and dizziness is established under 
38 C.F.R. § 3.310. 


ORDER

Service connection for blackouts as secondary to the service-
connected residuals of head injury with headaches and 
dizziness is granted.


REMAND

On the claim of service connection for impaired vision, after 
the Veteran's file was forwarded to the Board, the Veteran 
timely provided information, pertaining to additional 
evidence in support of the claim.  Under 38 C.F.R. § 
3.159(c)(1), VA will make an initial request for records not 
in the custody of a Federal agency.

On the claim of service connection for a psychiatric 
disorder, the service treatment records show that on 
separation examination the Veteran indicated a history of 
nervousness, and it was noted that the Veteran took pills for 
nervous trouble while in Vietnam.

On VA examination in September 2006, the diagnosis was 
anxiety disorder. According to the VA examiner, the Veteran's 
anxiety disorder was not the result of in-service head 
injuries, but a full examination for posttraumatic stress 
disorder may be indicated.  

As the symptoms for which the Veteran is seeking service 
connection may be associated with another psychiatric 
diagnosis with a possible association with service, the claim 
can not be limited to consideration of a single psychiatric 
diagnosis.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a 
claim should be construed on the reasonable expectations of 
the claimant and the evidence developed in processing the 
claim. 

As the evidence of record is insufficient to decide the claim 
of service connection for a psychiatric disorder, further 
development under the duty to assist is needed. 38 C.F.R. § 
3.159.



Accordingly, the case is REMANDED for the following action:


1.  Obtain the records of Ophthalmology 
Associates, 400 Nix Medical Center, 414 
Navarro St., San Antonio, Texas, 28205, 
as authorized by the Veteran in January 
2010.  If the records do not exist or 
further efforts to obtain the records 
would be futile, notify the Veteran in 
accordance with 38 C.F.R. § 3.159(e).

2.  Ensure VCAA compliance to include a 
PTSD Questionnaire on the claim of 
service connection for posttraumatic 
stress disorder raised by the record. 

3.  Obtain the Veteran's service 
personnel records.  

4.  After the development requested above 
has been completed and any further 
development deemed necessary to decide 
the claims, for example, affording the 
Veteran a VA examination or obtaining a 
VA medical opinion, adjudicate the 
claims.  If any benefit sought on appeal 
remains denied, furnish the Veteran and 
his representative a supplemental 
statement of the case and return the case 
to the Board. 

The Veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded.  Kutscherousky 
v. West, 12 Vet. App. 369 (1999).






This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).



______________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs