Citation Nr: 1302199 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 06-29 696 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for claimed residuals of a head injury, to include headaches, memory loss, impaired concentration, and sleep impairment. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active military service from September 1985 to September 1989. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2005 rating decision in which the RO declined to reopen a claim for service connection for residuals of a head injury, to include headaches, memory loss, and impaired concentration. The Veteran filed a notice of disagreement (NOD) in January 2006, and the RO issued a statement of the case (SOC) in August 2006. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) later that month. In November 2006, the Veteran testified at a hearing before RO personnel at the RO; a transcript of that hearing is of record. In August 2010, the Board reopened the claim for service connection for residuals of a head injury, and remanded the claim for service connection, on the merits, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claim (as reflected in January 2011 and October 2012 supplemental statements of the case (SSOC)) and returned the matter on appeal to the Board for further appellate consideration. Consistent with the Veteran's assertions, and what has actually been considered and adjudicated, the Board has identified sleep impairment as among the claimed residuals of in-service head injury/ FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran's recurrent headaches, memory loss, concentration and sleep impairment first manifested, and were first documented, years after the Veteran's discharge from service, and the weight of competent medical evidence and opinion is that there is no medical relationship between these symptoms and any incident of the Veteran's military service-in particular, a mild concussion and head laceration in 1986. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury, including headaches, memory loss, and impaired concentration, and sleep impairment, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a September 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The December 2005 RO rating decision reflects the initial adjudication of the claim after issuance of the September 2005 letter. A March 2006 letter provided the Veteran with information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the March 2006 letter, and opportunity for the Veteran to respond, the August 2006 statement of the case reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as in a statement of the case, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of two November 2011 VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's RO hearing, along with various written statements provided by the Veteran, a friend, and by his representative on his behalf. The Board also finds that no additional RO action to further develop the record on the claim for service connection for residuals of a head injury is warranted. In summary, the duties of notice and assistance have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal at this juncture. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006)] (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background The Veteran served as a U.S. Navy seaman with duty aboard an aircraft carrier. He contends that his symptoms of headaches, memory, and concentration impairment are residuals of a head injury in active service. Service treatment records show that the Veteran incurred a laceration of the scalp when his head struck a shipboard bulkhead in September 1986. A sick bay hospital corpsman noted the Veteran's reports of no loss of consciousness, nausea, vomiting, or dizziness. Ears, nose and throat were normal with no vision deficits. The corpsman noted a five centimeter laceration with active bleeding but no foreign objects. The corpsman irrigated and closed the wound with five sutures. The corpsman prescribed an analgesic medication and authorized limited duty for 24 hours. The treatment was reviewed by a physician. A week later, another corpsman removed the sutures. The Veteran denied headaches, tenderness, pain, or drainage. The assessment was "resolved laceration to the scalp." There are no further records of follow up care for any residual symptoms such as dizziness, vision deficits, or headaches. The Veteran successfully completed the remainder of his tour of duty on the aircraft carrier. In an August 1989 separation physical examination, a military physician noted that the Veteran's head, face, neck, and scalp were normal and that the Veteran denied frequent or severe headaches, dizziness, or fainting spells. There was no mention by the examiner or the Veteran of the scalp laceration three years earlier. The VA treatment records dated from February 1999 through February 2000 reflect that the Veteran was treated for substance abuse with no complaints of any residuals of the head injury. In February 1999, the Veteran underwent a VA neurologic examination. The examiner noted the Veteran's report of hitting his head on a ship bulkhead during service. The Veteran reported that he sustained a laceration and was dizzy but had no loss of consciousness. He reported that he experienced pain at the site of the injury for several weeks, which was relieved with aspirin. The Veteran further reported that starting seven years before the current examination, he began to experience headaches over the temporal region occurring once per week and lasting 48 hours. The Veteran reported that starting four years earlier he began to experience difficulty in concentration and retaining material that he had read. The examiner diagnosed chronic headache disorder with unclear etiology and mild concentration deficit. In March 2000, the RO denied the Veteran's claim for service connection because there was no evidence that he had any residuals from the head injury during service. VA treatment records dated from May 2002 through January 2008 also reflect three courses of inpatient treatment in 2002, 2004, and 2005 for abuse of alcohol, heroin, and cocaine. The Veteran had occasional complaints of headaches, but denied having headaches at other times. In June 2004, the Veteran was examined prior to a course of VA inpatient substance abuse treatment. The Veteran denied any headaches, history of loss of consciousness, or any other medical problems. In May 2005, the Veteran was admitted for care at a VA domiciliary. He reported a history of head injury during service and complained of memory impairment and difficulty concentrating. In August 2005, a VA neuropsychologist noted that testing seemed to confirm the presence of impairment in verbal memory that seemed unrelated to his psychiatric state, substance abuse withdrawal or other functional cause. A magnetic resonance image was normal. In a November 2006 RO hearing, the Veteran stated that for the remaining three years of service on the aircraft carrier after his injury he regularly used aspirin and alcohol to self-treat recurrent headaches. He stated that he currently experienced headaches twice per week and that they resolved with twenty minutes of rest and meditation. In December 2006, the Veteran underwent a VA mental health consultation. A staff psychiatrist noted the history of head trauma in service without review of the details of the injury in the service records. The psychiatrist also noted a long history of alcohol, cocaine, and heroin use and diagnosed "traumatic brain syndrome possibly complicated by alcohol amnesic syndrome." The psychiatrist referred the Veteran for a neurologic examination. In January 2007, a VA neurologist performed a bedside examination, noting the psychiatrist's diagnosis of traumatic brain syndrome. He noted the Veteran's report of the start of memory problems two years earlier when he stopped using drugs and alcohol. The neurologist noted that the examination was normal with intact general knowledge and memory and diagnosed cognitive problems and possible Korsakoff's syndrome (a Vitamin B deficiency typically associated with alcoholism or severe malnutrition). In a follow up encounter in March 2007, the neurologist noted that a concurrent magnetic resonance image was normal and that his clinical examinations showed no organic neurologic deficiencies. In March 2007, a VA neuropsychologist noted the Veteran's report of the head injury that included a loss of consciousness followed immediately by several years of headaches and increased alcohol use. Several tests showed both cognitive strengths and weaknesses but average intelligence. The Veteran had difficulty sustaining attention but memory retention was satisfactory once he learned the task. The neuropsychologist considered an attention deficit/hyperactivity disorder but concluded that the Veteran did not meet the criteria for that diagnosis. There were some symptoms of anxiety and depression which could account for some of his cognitive difficulties, but "his head trauma during his service in the Navy could not be ruled out as a contributing factor." The Veteran underwent another series of VA neurological and psychological examinations, imaging studies, and speech pathology consultations later in 2007 and in May and June 2008. A third magnetic resonance image was normal. The Veteran continued to experience headaches and some memory and concentration deficits. The Veteran reported to examiners that he was unsure whether he had lost consciousness when he "split his head open" and that he immediately experienced recurrent headaches and used aspirin "like candy." A VA clinician in March 2009 noted the Veteran's report that he did lose consciousness at the time of the injury, and he diagnosed organic brain syndrome. In June 2009, a VA psychiatrist noted the following mental health diagnoses: anxiety disorder and possible cognitive disorder, bipolar disorder, opiate, and alcohol abuse, and personality disorder. In August 2010, the Board considered the appeal and noted a head injury during service with no residuals other than a healed laceration. The recent VA treatment records, however, showed cognitive impairment and some suggestion that the head injury during service might be a contributing factor. There was also evidence of a long history of polysubstance abuse, "traumatic brain syndrome", and possible Korsakoff's syndrome. Given the in-service head injury, post-service findings of cognitive impairment, medical evidence suggesting a possible relationship between the two, and the absence of any current medical opinion on the question of nexus, the Board reopened the Veteran's. The Board concluded that further examination and medical opinion is needed to resolve the claim for service connection. The Board remanded the appeal to obtain VA treatment records since January 2008 and a VA neurology or neuropsychology examination and opinion whether any of the current symptoms of headaches, memory loss, impaired concentration, and cognitive impairment are the result of the head injury in 1986. In November 2010, the Veteran underwent separate neuropsychological and neurological examinations with reference to the traumatic brain injury examination protocol. Both examiners noted a review of the claims file and the electronic medical records and assessed the Veteran's symptoms and his contended relationship to the head laceration in service. A VA psychologist noted the circumstances of the injury that resulted in a short, immediate, but not prolonged spell of dizziness and no loss of consciousness. The Veteran was assigned rest for a short time and received no follow-up care other than the removal of sutures. The psychologist noted the long history of substance abuse and that the only current symptoms that could potentially be associated with the injury were headaches, occasional irregular thumping sounds in the ear, and impaired sleep. Although the Veteran reported memory and concentration problems, none were noted on testing or clinical examination. Judgment, social interaction, communications, and motor function were all normal. The psychologist concluded that the recurrent headaches were not associated with the head laceration in service and that the difficulty staying asleep was a symptom of a sleep disorder and not a head injury. Although not noted on examination, the neurologist concluded that "a more parsimonious explanation" for the Veteran's reported memory and concentration problems was his long history of opiate, cocaine, and alcohol abuse. The psychologist concluded that there were no residuals of a traumatic brain injury. A VA neurologist conducted a subsequent examination and noted the findings of the psychologist. The neurologist also noted the differences between the Veteran's description of his injury and immediate symptoms and the service records that were silent for any symptoms after the laceration healed. The neurologist noted the Veteran's reports of recurrent headaches, insomnia, memory and concentration problems. On clinical examination, the neurologist noted no abnormalities including vision, balance, motor, reflex, taste, smell, or objective evidence of peripheral neuropathy. The neurologist diagnosed a mild head concussion but no traumatic brain injury. The mild concussion and laceration in service subsequently resolved with no memory or cognitive loss at that time. The neurologist referred to the psychologist's conclusions regarding the origins of the headaches and current memory and concentration deficits. In a November 2010 letter, a childhood friend of the Veteran noted that she observed the Veteran's behavior since he returned from military service. She observed the Veteran having difficulty with focus on a task, recurrent headaches with nausea and vomiting, and irregular sleep patterns. Additional VA outpatient treatment records through September 2012 were obtained and associated with the claims file or available in Virtual VA electronic records. The Veteran received inpatient VA treatment in July 2012 for ongoing cocaine abuse, detoxification, homicidal ideations, and violent behavior. The records are silent for any neurologic symptoms including headaches, memory, or concentration difficulties. III. Analysis Service connection may be granted for 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. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease or residuals of injury diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for residuals of a head injury must be denied. Simply stated, the weight of the competent, credible, and probative evidence establishes that the Veteran's current symptoms of headaches, memory, and concentration deficits are not residuals of an in-service head laceration, but, rather, manifested after service and are likely consequences of prolonged substance abuse. In addition to the medical evidence, in adjudicating this claim, the Board has considered the assertions of the Veteran and his friend. Although they are competent to report on experiences in service and current observable symptoms, the Board places less probative weight on the Veteran's description of the severity of the in-service injury as he reported to many attending clinicians. His reports of a loss of consciousness and immediate and prolonged headaches are not consistent with the service records, particularly of his denial of any symptoms on the discharge physical examination after three years of satisfactory performance of duty and no additional treatment. Throughout the clinical history, the Veteran has been inconsistent in his reports of the onset of symptoms. The Board acknowledges the friend's observation of the symptoms and they are consistent with clinical observations after 1999. The Board places low probative weight on the friend's suggestion that the symptoms must have developed in service because that is inconsistent with the service records, the post-service VA treatment records and the Veteran's own reports to clinicians of an onset in the 1990s and at other times in the mid-2000s. As for the medical evidence, there is competent evidence of a current disability manifested by recurrent headaches, memory loss, and concentration impairment, and there are medical opinions both for and against the existence of a relationship between the current symptoms and events in service, in particular, the head laceration. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171, 173 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must ensure that any medical opinion is based on sufficient facts or data. Jones v. Shinseki, 23 Vet. App. 382 (2010). A medical opinion that is inconclusive does not by itself render it inadequate for rating purposes. Id. at 389 (providing guidance in determining whether an inconclusive medical opinion is adequate for adjudication purposes). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. The inability to opine on questions of diagnosis and etiology cannot be the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have a bearing on the requested opinion. Id. at 389. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). There are several observations and conclusions that tend to support the Veteran's claim. In February 1999, a VA neurologist noted the Veteran's reports of the onset of symptoms several years after service. This examiner diagnosed a headache disorder and concentration deficit but was unable to provide an opinion on the etiology. The Board places less probative weight on this opinion because it is inconclusive and suggests but does not fully discuss the delay in onset of symptoms or the severity of the laceration as shown in the service treatment records. In December 2006, a psychiatrist diagnosed "traumatic brain syndrome" without a review of the details of the service injury. The Board places less probative weight on this opinion because the examiner was not a neurologist and in fact referred the Veteran for further neurological examination. Moreover, the psychiatrist noted that the symptoms were in part complicated by alcohol abuse. Furthermore, the diagnosis of an organic brain syndrome by this examiner and carried forward by outpatient clinicians was based on the Veteran's more severe description of the injury and is not consistent with imaging studies and neurologic examinations that fail to reveal any organic abnormalities. In March 2007, a VA neuropsychologist noted that a relationship of the Veteran's cognitive deficiencies to the laceration in service could not be ruled out. The Board places low weight on this conclusion because it is conditional and based on the understanding that the Veteran experienced unconsciousness and a continuity of symptoms not shown in the records and not originally reported by the Veteran in 1999. On the other hand, there are several observations and opinions against a relationship to service that warrant greater probative weight. In January 2007, a VA neurologist performed the follow-up recommended by the psychiatrist in December 2006 and concluded that there was no neurologic deficiency. The Board places greater weight on this opinion because the examiner was a specialist in evaluating the impact of trauma to the head and nervous system. Moreover, the neurologist addressed the results of negative imaging studies and explained that the cognitive deficits could be associated with malnutrition and alcohol abuse. Although this was stated conditionally, the opinion was confirmed by later examiners. The Board places greatest probative weight on the opinions of the two VA specialists in November 2011 who reviewed the claims file and specifically commented on the less severe circumstances of the injury as shown in the service records. Both examiners rejected the diagnosis of traumatic brain injury. The November 2010 psychologist accurately described the severity of the injury, clearly limited the number of current symptoms that could be related to a traumatic head injury, eliminated the head injury as a cause, and explained other causes for the symptoms including the long history of substance abuse that was well documented in the medical history. Moreover, after testing that yielded many normal results, the psychiatrist clearly concluded that there were no residuals associated with the head injury. The November 2010 neurologist noted the psychologist's assessment and also confirmed from his own examination that the Veteran did not currently have any neurologic residuals of a head injury. This conclusion was supported by the history of at least three normal imaging studies. Moreover, the neurologist also confirmed the psychologist's explanation that the memory and concentration deficits were associated with prolonged substance abuse. Taken together, the three opinions that do not support a relationship of the current symptoms to the head laceration in service warrant greater weight because they are based on a more accurate, less severe initial injury; recognize and account for the contribution of well documented substance abuse are consistent with normal imaging studies; and are based on current and comprehensive testing that fail to show current neurological abnormalities that are medically accepted consequences of brain trauma. Accordingly, the Board finds that the most persuasive opinion and other evidence weighs against the claim. As indicated above, the claim turn on the medical matter of and whether there exists a relationship between the symptoms and the mild concussion and laceration in service, a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). VA must consider all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence'). In this case, the Veteran does not have the appropriate medical training and expertise, he is not competent to render a probative opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions that his symptoms are residuals of a head injury are not categorically rejected but have much less probative value than the medically competent and highly credible opinions to which the Board assigns much greater weight. For all the foregoing reasons, the Board finds that the claim for service connection for residuals of a traumatic brain injury and in particular symptoms of recurrent headaches, mild memory and concentration deficits, and sleep impairment must be denied. 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 claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for residuals of a head injury, to include headaches, memory loss, impaired concentration, and sleep impairment, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs