Citation Nr: 1128046 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 06-24 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active military service from December 1973 to April 1974. Afterwards, the Veteran was a member of the reserve service through approximately 1997, during which he had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that denied the benefit sought on appeal. The August 2005 rating decision also denied entitlement to service connection for residuals of a left knee injury which the Veteran also appealed. A March 2007 rating decision granted service connection for left knee chondromalacia patella with an initial 40 percent rating, effective in March 2005, and an RO letter, also dated in March 2007, informed the Veteran of the decision. There is no indication in the claims file that the Veteran appealed either the initial rating or the effective date. Hence, neither the issue of the initial rating nor the effective date is before the Board and they will not be addressed in the decision below. 38 C.F.R. § 20.200 (2010). An August 2007 RO letter informed the Veteran that the Travel Board hearing he requested was scheduled for September 13, 2007. There is no indication in the claims file that the Veteran did not receive the letter or that the letter was returned to VA by postal authorities as undeliverable. The Veteran failed to appear for his scheduled hearing, and the claims file reflects no evidence that he requested that the hearing be rescheduled. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2010). In February 2010, the Board remanded the case to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development, including completion of development directed in the October 2008 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The AMC/RO completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. The issue of entitlement to an increased rating for left knee chondromalacia patella has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The AMC/RO completed the additional development as directed in the February 2010 Board remand. 2. The preponderance of the evidence of record shows the Veteran was not diagnosed with a head injury or otherwise shown to have sustained a head injury during a period of ACDUTRA or INACDUTRA. CONCLUSION OF LAW A head injury was not incurred in or during ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107(b) (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.1(k), 3.6(a),(c)(3), 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. See 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). While time-compliant, the April 2005 letter was not fully content-compliant, as it did not inform the Veteran how disability ratings and effective dates are assigned in the event service connection was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds no prejudice to the Veteran, however, as that deficiency was cured by a March 2006 RO letter. Further, following issuance of the March 2006 RO letter, full VCAA notice was included in the statement of the case, and the claim was reviewed on a de novo basis, as shown in the July 2006 statement of the case. Thus, any timing-of-notice error was cured and rendered harmless. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case), is sufficient to cure a timing defect). The claim was reviewed de novo again in November 2009 after a fully content-compliant November 2008 AMC letter. The Board also finds the content defect was rendered non-prejudicial to the Veteran, as the rating decision and the statement of the case fully apprised the Veteran of why his claim was denied and what was required to prove the claim. The evidence of record shows the Veteran had and exercised his opportunity to participate in the decision on his claim. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, any VCAA notice error was rendered harmless. See 129 S. Ct. 1696 (2009) (2009). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. 38 C.F.R. § 3.159(c). While the Veteran may not have received full notice prior to the initial decision, as found above, after notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim. The Board notes the Veteran's representative's assertion that the case should be remanded again because the VA examination conducted on remand was inadequate. The Board rejects that assertion for the reasons set forth later in this decision. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See id. Hence, the Board may address the merits of the appeal. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d) (2010). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. §§ 101(22), 316, 502, 503, 504, 505; 38 C.F.R. § 3.6(c)(3). Presumptive periods do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status will not always constitute competent medical evidence. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Analysis The Veteran has not, and does not, assert that he was injured during his initial term of active service. He asserts that he sustained a head injury in a motor vehicle accident in 1986 during a period of ACDUTRA. VA Outpatient records note the Veteran's complaints of chronic headaches which the Veteran reports is a residual of the claimed head injury. The Veteran was afforded two examinations: a May 2010 examination conducted by a neuropsychologist, and a June 2010 examination conducted by a neurology physician's assistant (certified). The May 2010 neuropsychology examination report notes that the Veteran reported that he lost consciousness for an unknown period of time secondary to the 1986 accident. He also reported that he was wearing a seatbelt, but it broke due to the force of the accident. The Veteran reported that, over the years after the accident, problems with headaches, occasional dizziness, a roaring sound in the ears, short-term memory problems, and floaters in his field of visions, started and insidiously progressed. The Veteran reported that he hit his head on the support beam between the windshield and driver's side window in 1999 (post-service) accident. The Veteran denied any loss of consciousness or posttraumatic amnesia after the 1999 accident, but he believed his cognitive problems significantly worsened after the 1999 accident. The May 2010 VA examiner specifically noted that "the records from St. Francis hospital were reviewed." The examiner noted that the 1986 medical records associated with 1986 accident noted the Veteran did not have a loss of consciousness as a result of the accident and there was not any mention of a concussion. The examiner noted that the medical records in the claims file contained no evidence of brain trauma. Test results indicated verbal and visual memory were mildly impaired, but the testing evidence strongly suggested inadequate effort/motivation. The May 2010 VA examiner concluding by stating: In sum, because of strong evidence suggesting inadequate effort/motivation, there is no objective evidence from test data to support the Veteran's subjective complaints. There is no evidence of brain trauma from medical records located in his c-file. Similarly, the June 2010 VA traumatic brain injury (TBI) examination report notes that the examiner conducted a review of the claims file as part of the examination. The report notes the Veteran denied any history of seizures, autonomic dysfunction, numbness, paresthesias, or other sensory changes. The Veteran did report daily, throbbing-type, headaches which, on a scale of 1 to 10, the Veteran assessed as 9/10 severity. Physical examination revealed reflexes of 1+ in all spheres of the upper and lower extremities. Plantar flexion reflexes were normal. Sensory was normal in the upper and lower extremities, as was motor strength at 5/5 against resistance. Muscle tone was normal, and there was no evidence of muscle atrophy. The examiner noted that the physical findings did not reveal any evidence of autonomic nervous system impairment; imbalance or tremors; spasticity or rigidity; fasciculations; cranial nerve dysfunction, hearing problems; or, endocrine dysfunction. The examiner noted that the Veteran reported to him in 2008 that he sustained a major head injury in 1986, but the examiner noted that at that time he, the examiner, had no documentation of a head injury. The examiner noted further that a review of the claims file revealed a knee injury, but the examiner could not find any indication of a head injury from the 1986 motor vehicle accident. The examiner noted that the physical examination did not reveal evidence of a prior major head injury. Nor did it confirm the Veteran's subjective complaints of headaches. The June 2010 VA examiner concluded that: I find no indication of a major head injury, The C-file documentation does not reflect any major head injury from the 1986 car accident. He was treated at the time for injury to his left knee. He was subsequently in an MVA in 1999 that was not in the line of duty. He c/o severe daily headaches that are not evident on this examination. Thus, both VA examinations clearly weigh against the claim. The Veteran's representative asserts that the TBI examination report is contrary to the evidence of record; specifically, the fact that the contemporaneous records note the Veteran sustained abrasions and contusions of the face, which would seem to indicate the Veteran suffered some possible injury to the head, but the examiner failed to discuss those records and their import. As noted earlier in the discussion of VCAA compliance, the Board rejects the representative's assertions. The January 1986 records of the private hospital to which the Veteran was taken after the accident notes the Veteran reported that the car he was in was hit on the side, a seat belt was not in use, and he denied any loss of consciousness. The report also noted that there was no documented loss of consciousness. The admitting report also reflects that the Veteran complained of pain from the neck down and left knee pain. Physical examination revealed the Veteran was awake and alert, and the Veteran was in no apparent distress. There were multiple facial abrasions, and the pupils were equal, round, and reactive to light. Cranial nerves were intact. Skull x-rays were interpreted as negative. The left knee had already shown marked effusion. The admitting diagnosis was probable torn quadriceps. The admitting physician noted the principal diagnosis involved the Veteran's left knee, and the abrasions and contusions of the right face was the secondary diagnosis. When the Veteran was discharged from the emergency room to the ward, the nurse notes reflect he arrived with a cervical collar in place and sandbags around his splinted left leg. A dressing had been applied to the right forehead, and the Veteran could move all four extremities voluntarily on command. The Veteran's pupils were equal, round, and reactive to light, and he was alert and oriented. His sole complaint was knee pain. All of the records related to the Veteran's initial emergency treatment note that there were no focal neural deficits. The Veteran subsequently underwent surgery to repair the left knee injury. Service treatment records include a January 1988 Report Of Medical Examination For Annual that notes all areas, including neurologic, were assessed as normal. An August 1989 Report Of Medical History reflects the Veteran denied any history of a head injury, and the August 1989 Report Of Medical Examination notes the neurologic area was assessed as normal. The Veteran again denied a history of head injury or loss of consciousness on a March 1997 Report Of Medical History, though he did note the 1986 left knee injury. The March 1997 Report Of Medical Examination notes the neurologic area was assessed as normal. Treatment records of the Veteran's private physician, W.T.J., M.D., for the period 1995 to 1999, reflect no report of complaints of headaches by the Veteran between 1995 and July 1999. Dr. J's notes reflect physical examination revealed the absence of any focal deficits during that period. Dr. J noted in September 1999 (after service) that the Veteran was involved in a motor vehicle accident, and the Veteran sustained a left eye injury, cracked nose, and bruised ribs. Although the Veteran reported in December 1999 that he was still seeing white spots, Dr. J noted the Veteran's vision was normal and there were no focal deficits. Interestingly, Dr. J records no complaints of headaches between 2000 and 2005. The Veteran's principal complaint was back pain. Against the backdrop of the evidence set forth above, the June 2010 VA examiner had an adequate factual basis to opine the records associated with the Veteran's 1986 treatment afforded no factual basis for a head injury. See Nieves v. Rodriguez, 22 Vet. App. 295 (2008). The VA examiner who rendered the opinion which weighs against the claim considered all of the evidence of record, which included the records pertaining to the treatment provided after the 1986 accident. His opinion was fully informed and is persuasive. Rather than showing a major head injury which could cause brain trauma, the 1986 treatment records showed only contusions, lacerations and/or abrasions. In essence, there was nothing significant for the examiner to discuss. The Boards notes further that the representative does not comment on the May 2010 neuropsychology examination report, in which the examiner specifically reported reviewing the 1986 St. Francis Hospital records and concluded that there was no major head injury. This opinion which weighs against the claim is uncontradicted. The Veteran is fully competent to present testimonial evidence of the events surrounding the 1986 and 1999 accidents and also as to the symptoms of any disorder he may have experienced or is experiencing. See 38 C.F.R. § 3.159(a)(2). The Board is also mindful that the Board may not reject the Veteran's personal assertions solely because of the absence of contemporaneous evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The absence of contemporaneous medical evidence, or the presence of contrary contemporaneous evidence, however, is a valid consideration when assessing the credibility of the Veteran's assertions. Id. The Board is firmly convinced that the Veteran's assertions are not credible at worse, and his recall is unreliable at best. In either event, the Board rejects the Veteran's asserted basis for his claim to entitlement to service connection for a head injury and resultant residuals, as the evidence of record is compellingly contrary to the Veteran's assertions. The fact the Veteran sustained facial abrasions and contusions is not ipso facto evidence that he sustained a head injury. Competent medical professionals who treated the Veteran noted no complaint of head injury nor did they diagnose head trauma, brain trauma, or resultant residuals. As already noted, there is no record of complaints related to a head injury either immediately thereafter or in the interim years between 1986 and 1989. Dr. J noted no complaints of headaches even after the 1999 accident. In light of the above, the Board is constrained to find the preponderance of the evidence is against the claim. 38 C.F.R. §§ 3.1(k), 3.6(a),(c)(3) 3.303. The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for residuals of a head injury is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs