Citation Nr: 1301546 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-01 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residual headaches from head injury. 2. Entitlement to service connection for residual scars from head injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and Son ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from December 1941 to January 1946. This matter comes to the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Board video-conference hearing was held before the undersigned Veterans Law Judge in November 2012. The RO has treated the matter on appeal as one issue. However, given the different outcomes herein, for clarification purposes, the Board has separated the issues and characterized them as set forth on the front page of this decision. The issues of service connection for bilateral hearing loss and tinnitus were also appealed by the Veteran. However, these issues were subsequently granted in a December 2009 rating decision. As this was a full grant of the benefits sought on appeal, these issues are no longer in appellate status. The issue of service connection for throat cancer was also appealed and addressed in a December 2009 statement of the case. However, in his December 2009 substantive appeal, the Veteran indicated that he no longer wished to continue his appeal of this issue. Accordingly, this issue is also not before the Board. The issue of entitlement to an increased rating for the Veteran's service-connected bilateral hearing 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. A review of the Virtual VA claims processing system does not reveal any additional documents pertinent to the appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for residual scars from head injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Residual headaches due to head injury are causally related to the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for residual headaches due to head injury have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to service connection for residual headaches due to a head injury. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any 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). In his statements of record and at the Board hearing, the Veteran has asserted that in 1944, he suffered a head injury while aboard the USS Manila Bay when the ship was attacked by two Kamikaze airplanes. He claims that when one of the planes hit the flight deck, his head was hit with metal shrapnel. At that time, he did not lose consciousness, and given the severity of the injuries of fellow service-members, he did not seek or receive medical treatment. However, he has continued to experience headaches since that time. The Veteran's service personnel records and ship history clearly show that the Veteran was stationed aboard the USS Manila Bay when the ship was attacked by the Kamikaze airplanes as described by the Veteran. Thus, the provisions of 38 U.S.C.A. § 1154(b) are applicable and the Veteran's assertions regarding injuring his head are accepted despite the lack of supporting documentation in service treatment records. See Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). VA treatment records showed that in June 2007, the Veteran again indicated that he had received an injury to his scalp when his ship was attacked by Kamikaze bombers. He experienced scalp discomfort. However, an x-ray of the scalp showed no evidence of opaque foreign bodies. The Veteran was afforded a VA examination in October 2009 for traumatic brain injury. After examining the Veteran, the examiner determined that based on the history, current patterns and test data, it did not appear that there was residual impairment consequent of trauma-related damage to the cerebral cortex in 1944. In support of his claim, the Veteran submitted a January 2010 private opinion by S.S., M.D. The opinion reiterated that during service, the Veteran received shrapnel wounds to the top of his head during a Kamikaze attack on his ship. Since the injury, the Veteran had chronic pain and tenderness on top of his head and headaches. The doctor believed this was due to nerve damage. He indicated that based on x-rays and MRI/MRA studies, there was no shrapnel present. Lyrica had been prescribed for neurogenic and neuropathic pain. Treatment record from Dr. S.S. also documented a diagnosis of chronic headaches due to shrapnel injury, neurologic. The Veteran was afforded another VA examination in May 2011. After reviewing the claims file and examining the Veteran, the examiner determined that the Veteran's headaches were chronic tension headaches, which were less likely than not related to the head injury in service because post-concussion headaches due to injury did not last this long. The Board is thus faced with a conflicting record as to whether the Veteran's headaches are due to the head injury he suffered in service. In support of the Veteran's claim is the medical opinion by Dr. S.S., who determined that the Veteran's headaches were due to nerve damage from the head injury and prescribed medication for the neurogenic and neuropathic pain. Although there is no indication that the doctor reviewed the claims file, he knew the circumstances surrounding the head injury that occurred in service as well as the Veteran's medical history. However, against the Veteran's claim are October 2009 and May 2011 VA examinations and opinions in which the first examiner found that the Veteran did not suffer from a traumatic brain injury and the second examiner diagnosed chronic tension headaches, which were not related to the head injury. All of the examiners were aware of the accurate facts surrounding the head injury in service as well as the Veteran's medical history, but still came to different medical conclusions. Accordingly, the Board is presented with conflicting evidence that is essentially in a state of equipoise as to the medical conclusions to be drawn. In such situations, a decision favorable to the appellant is mandated by 38 U.S.C.A. § 5107(b). Thus, service connection is warranted for residual headaches from head injury. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in June 2009, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for residual headaches from head injury is granted. REMAND The present appeal also includes the issue of service connection for residual scars from head injury. The Veteran also claims that he has tender scars from the head injury he suffered in service. Nevertheless, the Veteran has not been afforded a VA examination to address the nature, extent and etiology of any scars. Therefore, the Veteran should be afforded a VA examination to address this issue. See generally 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be scheduled for an appropriate VA examination to determine the nature, extent and etiology of any residual scars from a head injury. The claims file must be made available to the examiner for review. The examiner should be informed that the Veteran's assertions regarding injuring his head in service while stationed aboard the USS Manila Bay when the ship came under attack from Kamikaze airplanes are accepted as fact despite the lack of supporting documentation in service treatment records. After reviewing the claims file and examining the Veteran, the examiner should opine as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran has any residual scars from his head injury in service. A detailed rationale for all opinions expressed should be furnished. 2. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for all opinions expressed. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 3. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs