Citation Nr: 1237249 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-30 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals of a head injury, to include headaches and tinnitus. 2. Entitlement to service connection for a psychiatric disorder, to include as secondary to headaches and tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In May 2010, the Board issued a decision in this case reopening the Veteran's claim for service connection for residuals of a head injury to include headaches and tinnitus, and denying service connection for residuals of a head injury, to include headaches and tinnitus, as well as denying entitlement to service connection for a psychiatric disorder. The Veteran appealed the Board's May 2010 decision to the United States Court of Appeals for Veterans Claims (Court). By a Memorandum decision in June 2011, the Court vacated and remanded that part of the May 2010 decision that denied service connection for residuals of a head injury, to include headaches and tinnitus, as well as that part of the decision that denied entitlement to service connection for a psychiatric disorder for further action. The Board remanded the claims in November 2011 for additional development and the case has since been returned to the Board for review. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). . The issue of entitlement to a psychiatric disorder is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's residuals of a head injury, to include headaches and tinnitus are not causally or etiologically related to active military service or had their onset in active service. CONCLUSION OF LAW Residuals of a head injury, to include headaches and tinnitus, were not incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's June 2006 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran submitted a release form in December 2011 identifying VA medical records from May 1982 through December 2011. However, these records had already been obtained and associated with the claims file. This case was remanded in November 2011 to request Social Security Administration (SSA) records. The records were requested and records were sent via photocopy and associated with the claims file. However, the records associated with the claims file pertain to the Veteran's former wife and are not pertinent to the issues on appeal. The RO found that the records did not exist and further efforts to obtain them will be futile. The Board therefore finds that the November 2011 remand directive was substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Veteran was also provided VA examinations in conjunction with the claim on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Pursuant to the Board's November 2011 remand, VA provided the Veteran with a neurological examination in March 2012 and a audiological examination in March 2012. The medical examinations are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examinations of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Although the March 2012 examiner could not provide an opinion without resorting to speculation, the VA examiner explained the reasons for this conclusion and, therefore, the opinion is adequate. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (noting that a speculative medical opinion is not per se inadequate, but the examiner must provide a basis for that determination and the phrase "without resort to speculation" should reflect the limitations of the medical community at large and not those of a particular examiner/reviewer). The Board finds that there has been substantial compliance with its November 2011 remand as the VA examinations were adequate. See 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Service connection may be granted for a 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 may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends that he has residuals of an in-service head injury and that the residuals have existed since the time of the injury. On enlistment examination, the Veteran reported a head injury prior to service but the examining physician noted that there were no residuals. The Veteran's service treatment records show that the Veteran was hospitalized for four days for observation in January 1968 following being struck in the right forehead area with a cue ball. He initially developed a large swelling in the right forehead area and complained of severe headaches. There was no loss of consciousness and the neurological examination was normal. Post-concussion syndrome was diagnosed. The Veteran was temporarily placed on limited duty. The January 1968 separation report of medical examination shows that the Veteran's head was evaluated as normal. The January 1968 report of medical history shows that the Veteran checked yes as to experiencing frequent and severe headaches. In the examiner's summary and elaboration of all pertinent data, the examiner noted post-traumatic headaches since April 1966 and that the Veteran reported occasional headaches now. VA clinic records dated in February 1984 note that the Veteran reported that he had taken Tylenol #3 for headaches since the head trauma during service. He was hospitalized at a VA facility in April 1984 for evaluation of the headaches. The summary of the hospitalization provides a history of the in-service head injury. The neurological evaluation, which included a brain scan, was completely negative. A diagnosis of muscle contraction headaches was assigned. In June and July 1987 VA outpatient treatment records, the Veteran reported having constant headaches and anxiety. Diazepam was prescribed. A private psychiatrist evaluated the Veteran in August 1987 and diagnosed antisocial personality disorder, probable drug abuse, and a significant degree of anxiety and nervousness. In March 1988, a private clinical psychologist noted the Veteran's reported history of having sustained as many as 10 to 12 concussions in his lifetime from beatings, car accidents, and fights. VA clinic examiners from September 1987 to January 1991 related the Veteran's headaches to either muscle tension or anxiety. The examiner at a VA psychiatric compensation examination in May 1991 discussed the Veteran's history in detail and diagnosed antisocial type personality disorder, by history, and intermittent explosive personality, by history. The examiner stated that the Veteran's history of anxiety symptoms and tension headaches was secondary to the described "personality and adjustment and social problems" and that there was no evidence of organic brain syndrome. In October 2006, a VA psychologist diagnosed depressive disorder, not otherwise specified, and antisocial personality disorder. The examiner commented that although the Veteran reported having experienced headaches several times a week since the in-service head injury, he did not report a change in the severity or frequency of his depressed mood secondary to the physical discomfort or restricted physical functioning. The examiner therefore indicated that it was "less likely than not" that the Veteran's depression was due to the head trauma in service. The examiner further opined that the Veteran's functional impairment was primarily the result of his antisocial personality disorder. The examiner at a VA neurological compensation examination in November 2006 discussed in detail the Veteran's history and noted a minimal degree of lower extremity spasticity and impaired upper limb motor control. The diagnoses included nonspecific behavior-related headache and personality disorder. The examiner concluded that the noted neurological findings could not be the result of any service related events, including the "cue ball incident" in service. The examiner added that the Veteran's headaches were a component of his personality disorder. The VA treatment records dated from the 1980s to the 2000s show that the Veteran has complained of chronic headaches and stating that the onset of the headaches was during service following his head injury. In other VA treatment records, to include a July 2011 VA treatment record, the Veteran has reported numerous head injuries in the past. In March 2012, the VA examiner at a VA neurological compensation examination explained that given the unreliability of the Veteran's medical history, the Veteran's personality disorder detailed in his claims file, and the numerous head injuries that the Veteran sustained before, during, and following his military service, an opinion as to whether the head injury that occurred in January 1968 was the cause of his claimed headaches could not be provided without resorting to speculation. The examiner listed a diagnosis of headaches, unexplained. In reviewing the medical evidence of record, the Veteran's headaches have not been related to his inservice head trauma. The medical evidence has related the headaches to a personality disorder. A personality disorder is not a disability subject to compensation for VA purposes. See 38 C.F.R. §§ 3.303(c); 4.127 (2012). In addition, the March 2012 VA examiner reviewed the claims file, examined the Veteran, considered the Veteran's lay statements, and explained that an opinion could not be given without resorting to speculation and provided an explanation. The Board finds that the VA examiner's opinion is persuasive as the examiner reviewed the claims file and explained why an opinion could not be provided due to the unreliable history of the Veteran, the reports of multiple head injuries before and after service, and the Veteran's personality disorder. A finding of service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102 (2012). The Veteran's lay statements are competent evidence that he has experienced headaches. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). However, his lay statements are not competent evidence that a chronic headache disorder was caused by active service. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As the Veteran is not a physician, his statements are not competent evidence that his headaches are the result of his active service as opposed to any other factor. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the Board has considered the Veteran's statements that his headaches have existed since his January 1968 inservice head injury. The Veteran is competent to report his symptoms of headaches and that they have existed since active service. The service treatment records show that the Veteran complained of headaches immediately after his January 1968 in-service head injury. The separation report of medical history shows that the Veteran checked yes as to having frequent and severe headaches. However, in the summary and elaboration of all pertinent data on his service separation examination, it was noted that the Veteran reported headaches since 1966 before service and that he had occasional headaches. However, the Veteran has provided inconsistent statements regarding the onset of his headaches. Although he related his headaches to head trauma prior to active service during the January 1968 separation report of medical examination, in the August 1987 private psychiatric evaluation, the Veteran reported that he had headaches since he was in a motor vehicle accident on June 12, 1987. Given the inconsistency of the Veteran's statements, the Board finds that the Veteran's statements as to the onset of his headaches and continuity of symptomatology are not credible. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, service connection for tinnitus is not warranted. As noted above, the service treatment records confirm that the Veteran had an in-service head injury. However, at the time of the injury and thereafter, the Veteran did not report that he experienced tinnitus. In a statement dated in April 1974, the Veteran stated that he was hit in the right side of his head when stationed in Germany but he did not mention experiencing tinnitus. In a statement dated in March 1984, the Veteran requested that his claim for residuals of a head injury be reopened due to his headaches, but he did not mention experiencing tinnitus. In a September 1992 VA treatment record, the Veteran reported that his chief complaint was tinnitus and that its onset was one year ago. The Veteran was examined by a VA audiologist in November 2006 regarding his claim for service connection for tinnitus as a residual of the in-service head injury. The examiner reviewed the claims file, noting in particular that the injury was to the Veteran's forehead and that there was no mention of tinnitus in the service treatment records. The examiner concluded that in light of the presence of normal hearing at separation, the absence of evidence of tinnitus during service, and normal skull x-rays during service, there was no indication that any current tinnitus was related to service. The Veteran was afforded a VA audiology examination in March 2012. The examiner opined that the tinnitus was "less likely as not" caused by or a result of a head injury. The examiner explained that the service medical records documented several times the symptoms the Veteran was having when his head was injured and during follow-up. Headaches and dizziness were among the symptoms mentioned but tinnitus was not mentioned. The examiner explained that: "The Veteran reports that it began at that time, but in the medical report and the documents from the follow-up visits he never mentioned tinnitus." The Veteran's statements are competent evidence regarding the onset of his tinnitus. See Charles v. Principi, 16 Vet. App. 270; Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran's statement are not credible evidence with respect to his statements regarding the onset and continuity of symptomatology of his tinnitus. Although the Veteran contends that he has had tinnitus ever since his head injury in service, the evidence of record shows his statements are inconsistent, and are inconsistent with the evidence of records Although, the Veteran claimed that his tinnitus has existed since service, in a September 1992 VA treatment record, the Veteran reported that his tinnitus onset one year previously. The Veteran testified at his hearing before the Board that he complained of tinnitus at the time of the hospitalization in Germany during service following the in-service head injury. However, the service treatment records do not document any such complaints. Further, none of the post-service treatment or examination records indicate that the Veteran complained of tinnitus until this claim. Caluza, 7 Vet. App. at 506. Moreover, the VA audiologists who examined him in November 2006 and March 2012 provided negative nexus opinions. The Board finds that the examiners' opinions are probative as the examiners reviewed the claims file, examined the Veteran, and provided opinions with supporting rationale. For all the foregoing reasons, the claim for service connection for residuals of a head injury, to include headaches and tinnitus, must be denied. There is no evidence of record of a chronic residual of the in-service head injury, to include headaches and tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for residuals of a head injury, to include headaches and tinnitus, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for residuals of a head injury, to include tinnitus is denied. REMAND Pursuant to the Board's November 2011 remand, the Veteran was afforded a VA psychiatric examination in March 2012. The examination report reveals a diagnosis of mood disorder. The examiner explained that the Veteran claimed to have only been hit over the head once in spite of the fact that he has a long history of being in various fights and had reported head blows prior to the military. The examiner commented that: "There is no evidence-based reason to attribute either a mood disorder or a personality disorder to the head blow." The examiner explained that some cognitive disorder symptoms may be due to some kind of brain insult and everything depends on whether one wishes to credit his report that he has never been struck in the head before or after the service or whether one credits the neurologist's report that there had been a long history of multiple head blows in which case it was "less likely than not" that the symptoms of his cognitive disorder can clearly be credited to any one given insult. Accordingly, the examiner opined that it was "less likely than not that a clear connection can be made with an appalling amount of speculation between the head blow sustained in the military and current discerned psychiatric diagnoses." In an addendum to the examination report, the examiner noted that the claims file was not reviewed. In an April 2012 addendum by another VA psychologist, it was noted that the claims file and the March 2012 VA examination report were reviewed. The VA psychologist noted the reported head trauma before and after service. The VA psychologist concurred with the initial opinion offered by the March 2012 examiner and that it was "less likely than not" that the Veteran's mental health diagnoses were incurred in or as a result of tenure in the military. Here, the Board finds that a new VA examination with opinion is required. The November 2011 remand requested that the examiner provide opinions as to whether the disorder was caused by residuals of the head injury treated during service or whether the disorder is due to any other incident of service. The Board March 2012 VA examiner did not have access to the claims file at the time of the examination. In addition, the March 2012 VA examiner only addressed the Veteran's inservice head trauma and opined that it was "less likely than not that a clear connection can be made with an appalling amount of speculation between the head blow sustained in the military and current discerned psychiatric diagnoses." Thus, while the examiner provided an adequate opinion and rationale as to whether the psychiatric disorder is related to inservice head trauma, the examiner did not address whether the Veteran's psychiatric disorder was otherwise causally or etiologically related to active service. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (finding that a medical opinion is inadequate when it does not address all aspects of a claim when the medical examiner was directed to do so by the Board). The RO requested an addendum to the March 2012 VA examination report as the examiner did not have access to the claims file. The April 2012 addendum to the March 2012 VA examination report shows that another VA psychologist reviewed the claims file, again noting the Veteran's history of head trauma before and after service, and concurred with the March 2012 VA examiner's opinion. The Board finds this opinion is inadequate. No rationale for this opinion was provided. Consequently, although the opinions are adequate as to whether the Veteran's psychiatric disorder is causally or etiologically related to inservice head trauma, the opinions are not adequate as to whether the Veteran's psychiatric disorder is otherwise related to military service. Therefore, the RO has not substantially complied with the directives of the November 2011 remand and a remand for curative active is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998)(holding that RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance). "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that a remand for another VA examination and opinion is required for this reason. Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded the appropriate VA examination to determine whether any current psychiatric disorder found is related to the Veteran's military service . The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the evidence of record, the clinical evaluation, and with consideration of the Veteran's lay statements, the examiner must state whether any currently diagnosed psychiatric disorder had its onset in active service or is causally/etiologically related to the Veteran's military service. The examiner must discuss the finding of "anxiety neurosis" on the January 1968 separation report of medical examination. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. The RO must review the examination report to ensure that it is in complete compliance with the directives of this and the November 2011 remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. Thereafter, the RO must readjudicate the claim. If the benefit sought remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have been given an opportunity to submit additional argument, the appeal must be returned to the Board for further review. 4. THIS APPEAL HAS BEEN ADVANCED ON THE BOARD'S DOCKET. Expedited handling is required. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs