Citation Nr: 1031229 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 09-42 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for traumatic brain injury manifested by short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD H.J. Baucom INTRODUCTION The Veteran had active service in the Navy from April 1973 to March 1975 and in the Army from August 1975 to February 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an June 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Salt Lake City, Utah, which denied service connection for traumatic brain injury manifested by short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings. In March 2010 a Board hearing was held before the undersigned and the transcript is of record. FINDINGS OF FACT 1. The Veteran sustained a concussion in November 1974 while in service. 2. The preponderance of the evidence demonstrates that the Veteran's traumatic brain injury manifested by short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings is not related to his in-service injury or event. CONCLUSION OF LAW The criteria for service connection for a traumatic brain injury manifested by short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in March and June 2008. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claims for service connection were denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696, (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service medical records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of disability, and afforded the Veteran the opportunity to give testimony before the Board, which he did. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for traumatic brain injury manifested by short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings which he contends were caused by his concussion in service. The Veteran testified that during a fire drill in November 1974 he ran down a passageway on the ship and jumped, hitting his head on the top of a hatch. He was unconscious for an unknown period of time, approximately 5-10 minutes, and when he woke up he was bleeding from a cut on his head. He reported to sick bay and received stitches. The Veteran testified as to being dizzy and seeing stars at the time but was not nauseous. The service treatment records show that on November12, 1974 the Veteran reported hitting his head with an "IRON". Clinically, there was a shallow 1/2 laceration, slight bleeding, and no sutures were needed. The following morning, the veteran was seen for complaints of dizziness and inability to sleep well that night. It was noted that he stumbled while walking and he was referred to a medical officer. A following notation shows that the Veteran complained of dizziness and headaches. He was neurologically intact. The impression was status post "severe injury with iron." On November 14, the assessment was post- concussion, symptoms resolved except for slight dizziness. Romberg testing was negative and his coordination was within normal limits. On January 6, 1975 he received 7 sutures for a two inch laceration on the top of his head. The Veteran reported no other problems at the time. The following day the sutures were described as intact and the veteran was having no other problems. A week later, the sutures were removed from his scalp. The issue at hand is whether the Veteran's in-service head injuries caused a traumatic brain injury manifested by reported symptoms of short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings. The service treatment records show no diagnosed residuals or chronic symptoms related to the Veteran's in service head injuries. The Veteran's separation examination from the Navy in January 1975 did not note any relevant residual injury or complaints. In April 1977 he complained of a headache along with cold symptoms such as sore throat, coughing, congestion, and chills. In March 1978 he reported to be in good health and checked the box "no" as to whether he had ever had a head injury. A March 1978 medical examination report similarly did not note any history or current symptoms of a head injury. In 1980 (month unknown) the Veteran complained of a headache for three days and being dizzy. A June 1980 notation shows the Veteran complained of bitemporal headaches, and it was noted that he had a history of tension headaches. There was post nasal drainage and tender maxillary sinuses. The impression was sinusitis. In a February 1981 medical history report the Veteran again checked "no" as to whether he had ever had a head injury. The February 1981 medical examination similarly did not find any residuals of head injury. After active service the Veteran served as a civilian at an Air Force base. In medical examinations and self reported medical histories from November 1981, December 1984, July 1986 and January 1990 the Veteran reported he was in good health, checking "no" as to having had a head injury, and was found to have normal clinical evaluations which include normal neurologic and psychiatric aspects. In July 1986 the Veteran reported that he took Tylenol for headaches but he was in "excellent" health. In November 2007, a VA examination was conducted to evaluate the Veteran's service connected scar on the head due to his head injury in 1974. (The issue of evaluation of the scar is not on appeal.) At the exam the Veteran reported no further complications except for occasional headaches. The examiner opined that this far removed from any actual injury that it would not indicate a post concussion type headache, as they generally resolve within six months to two years. The Veteran reported he felt a loss of focus and attention since his head injury. In a February 2009 mental health note the Veteran reported that he has had depression all his life, over 30 years, but it got worse in 2006. In April 2009 a VA psychological examination was conducted. The Veteran reported feeling increasingly irritable. He reported a history of depression and anxiety which began 10 years ago. A December 2008 CT examination and a February 2009 MRI did not reveal any abnormalities that were reported to be indicative of a traumatic brain injury. The Veteran reported a worsening of symptoms of depression and anxiety in the last 10 years. Neuropsychological testing was conducted which indicated adequate and expected performance on tasks of intellectual functioning, verbal memory, visual memory, working memory, processing speed, and language abilities. His results indicated difficulties on tasks of attention, organization and delayed recall, which all appeared to be due to concentration, attention, and motivation difficulties resulting from his symptoms of anxiety and depression. The examiner opined that it was highly unlikely that these difficulties were the result of the concussion that the Veteran suffered in 1974. The examiner noted that the Veteran's anxiety and depressive symptoms do overlap with a number of symptoms commonly seen in people with mild traumatic brain injury; however the Veteran reported that these symptoms originated within the last 10 years and did not cause functional or symptomatic difficulties immediately after his concussion. In a July 2009 letter the Veteran's private physician, Dr. J.D., stated that the Veteran was being treated for depression and that he had a "post mag brain injury" in service. Dr. J.D. stated that it has been shown that individuals who suffer post traumatic brain injury have symptoms very similar to depression with increased anger, irritability and frontal lobe syndrome. However Dr. J.D. did not offer an opinion as to the cause of the Veteran's current symptoms and instead stated that he could not argue for or dispute an individual's history of post traumatic brain injury. In a July 2009 progress note Dr. J.D. reported that the Veteran had a history of depression that could in etiology be a form of frontal lobe syndrome with post traumatic head injury, and that the Veteran had responded to therapies which have been used in individuals with posttraumatic brain injuries. At an August 2009 VA examination, the Veteran reported the onset of headaches to be 10-20 years prior or 1974, possibly, but he was uncertain. The examiner found that if the Veteran had truly sustained a loss of consciousness at the time of the head injury the rating of his traumatic brain injury at the time of the injury would be mild. However as it is uncertified that there was a loss of consciousness, without it the Veteran does not qualify for any diagnosis of traumatic brain injury. The Veteran reported episodes of dizziness every two months. The examiner found that the Veteran was not receiving any specific treatments related to a traumatic brain injury but rather due to general anxiety disorder and depression. The examiner opined that the Veteran's reported symptoms of short term memory loss, noise sensitivity, anxiety, depression, sudden anger and mood swings are not caused by or a result of a traumatic brain injury. His development of depression and anxiety did not occur in the military and he was never treated for such during that time. His difficulties with short term memory began at least several years after the possible traumatic brain injury. There was no evidence of sudden anger beginning in conjunction with the alleged head injury or associated with that time period, and there were no sequela of traumatic brain injury noted in any of the military medical reports after the head injury. Although the Veteran experienced a head injury or injuries in service, the medical evidence is against a finding that any inservice head trauma caused any of the Veteran's reported manifestations of short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings. The Veteran's in service injury occurred in November 1974. Moreover, by his own report, the Veteran did not have alleged manifestations, specifically anxiety and depression, until 10 years prior to the 2009 VA examinations. Furthermore inservice treatment records after 1974 and post service medical records show the Veteran consistently denied any prior head injury and none of the records include any of the reported manifestations such as short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings. Although the Veteran claims his headaches may have began in 1974, headache was reported only twice in the seven years following the head injury. Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran genuinely believes that his traumatic brain injury is manifested by short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings, and is related to an in service injury; however, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent medical opinion on a matter as complex as the diagnosis or etiology of a traumatic brain injury and its residuals. While the Veteran's lay assertions have been considered, they do not outweigh the definite negative opinions of the VA medical examiners who opined that the Veteran's reported symptoms are not related to any in service head injury or concussion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The findings of the VA examiners weigh against the Veteran's claim, and there is little competent medical evidence to the contrary. The preponderance of the evidence is against the claim of service connection for a traumatic brain injury manifested by short term memory loss, noise sensitivity, anxiety, depression, sudden anger, and mood swings; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs