Citation Nr: 1303640 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 03-03 239 ) 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. 2. Entitlement to service connection for encephalitis (inflammation of the brain). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1963 to November 1966. This matter is before the Board of Veterans' Appeals (Board) following a November 2011 order from the Court of Appeals for Veterans Claims (CAVC or the "Court") vacating a September 2010 Board decision. [Incidentally, the Veteran has recently submitted correspondence indicating his belief that he "won" his case at the CAVC and he is entitled to disability benefits. That is simply not the case.] The issues were originally on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board had previously remanded these claims in December 2003 and March 2008, and most recently in April 2012, in attempt to provide the Veteran with a VA examination notwithstanding the fact the Veteran is currently incarcerated. The case now returns to the Board for further appellate review. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. In November 2012, the Board received additional evidence from the Veteran which consists of a written response to the November 2012 Supplemental Statement of the Case. In January 2013, through his representative, the Veteran waived his right to initial consideration of this evidence by the RO. 38 C.F.R. §§ 19.9, 20.1304(c). In that statement, the Veteran requested legal assistance, but VA does not appoint attorneys to assist claimants. He has been represented by the service organization listed above, and although he felt they had not helped him, that organization has submitted briefs on his behalf in 2003, 2008, 2010, 2012 and 2013. FINDINGS OF FACT 1. The Veteran had a head injury during his military service. 2. The Veteran does not currently have a medical diagnosis of encephalitis or any other disorder attributable to a head injury or other incident of his military service. CONCLUSIONS OF LAW 1. Residuals of a head injury were not incurred in or aggravated by service, nor may they be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112 and 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309 (2012). 2. Encephalitis was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112 and 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). 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 holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. Prior to and after the initial denial of the present claims, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits in notice letters sent in December 2001, February 2004, June 2005, August 2005, October 2006, March 2006, and April 2008. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claims. The RO further described what evidence that the Veteran should provide in support of his claims. Although the Veteran was not provided with an explanation of how VA determines the disability rating and effective date of a disability once service connection has been established, pursuant to Dingess, until after the initial adjudication of the claims (in 2006 and 2008 letters) the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Moreover, the Veteran and his representative were provided with copies of the above rating decision, the SOC, and the SSOC, which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) are included in the record. The Board notes obtaining post-service medical records proved difficult because the Veteran has been incarcerated since October 1976. VA and private medical records prior to 1976 have been obtained, to the extent possible. From October 1976 to present, however, no medical records could be obtained despite multiple efforts by the VA to obtain them because the correctional facility in which the Veteran currently resides declined releasing them due to the fact that the Veteran is still incarcerated. The Veteran identified a Dr. P. that he said cured his encephalitis. He was not able to provide an address for this physician. He indicated that the treatment was provided at Menard Psychiatric Center, which had since closed. He recently stated that Dr. P. was now in private practice in St. Louis. However, the Veteran has at no time provided an authorization form, completed in full with Dr. P.'s information, for VA to request his records. The RO did notify him that he had to provide complete contact information. These are private medical records and without proper authorization from the Veteran, VA cannot assist him any further in obtaining these records. The Board finds the VA has made reasonable efforts to obtain all medical records identified by the Veteran. The RO made several efforts over almost a nine-year time period to obtain the Veteran's medical records and an opinion or examination. Any further efforts would be futile. In this case, the VA attempted to afford the Veteran a VA examination to ascertain whether he had any residuals, to include encephalitis, related to an in-service head injury and nose fracture. Due to the Veteran's current incarceration, however, the Veteran could not report for a VA examination and the RO could not find a health care professional to evaluate the Veteran at his place of incarceration. The VA did, however, send the Veteran's file to be reviewed by an appropriately qualified medical specialist so that an opinion could be rendered based on the evidence of record in May 2010. The May 2010 VA opinion was based on a complete review of the Veteran's claim folder, to include the Veteran's own contentions documented in various submitted written statements. Nonetheless, in November 2011 the CAVC granted a Joint Motion for Remand (JMR) indicating further attempts to provide the Veteran with a VA examination should be made. Specifically, the JMR cites to particular provisions in VA's Adjudication Procedures Manual (M21-1MR), which sets forth procedures relevant to examining incarcerated veterans. See M21-1MR, "Examinations of Incarcerated Veterans." Part III.iv.2.A.11.d. Under circumstances where the Veteran is not prohibited to be transported to a VAMC (VA Medical Center) for a VA examination and where a VA employee cannot be transported to the Veteran, as is the case here, the manual instructs that the RO or VHA exam coordinator confer with the authorities "to determine whether the Veteran should be...examined at the prison by...prison medical providers at VA expense...[and] if a problem cannot be resolved at the local level, [they] should contact C&P Service Program Staff (214A) for assistance." Id. The Board notes that the correctional facility was uncooperative even insofar as releasing medical records to the VA and, therefore, there is no indication the facility would be cooperative in offering the Veteran an examination, even at the VA's expense. The Board finds the RO's efforts to obtain medical evidence and afford the Veteran a VA examination in connection with these claims were well-documented. The VA is obligated to treat incarcerated veterans the same, but there is no obligation to provide services to incarcerated veterans above and beyond those that would be offered to non-incarcerated veterans. See generally Wood v. Derwinski, 1 Vet. App. 190 (1991) (nothing that if VBA cannot arrange for an examination, it must document efforts to do so in the claims file and concluding that the Court could not "lightly infer that the duty to assist a Veteran in developing his [sic] claim applies any less to an incarcerated Veteran than to a non-incarcerated veteran"). Additionally, as provided by 38 C.F.R. § 19.5 (2012), the Board, in its consideration of appeals, "is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs. The Board is not bound by Department manuals, circulars, or similar administrative issues." Id. (emphasis added); see also 38 U.S.C.A. § 7104(c) (2006). In light of the JMR and Court order, in April 2012, the Board remanded the claims and requested that the RO make additional efforts to afford the Veteran an examination in accordance with M21-1MR, Part III.iv.2.A.11.d. Pursuant to that remand, in May 2012, the RO scheduled a VA examination for the Veteran that he failed to attend. A September 2012 electronic mail message (e-mail) from the VBA state that they worked with the Director of the Medical Centers to arrange for the Veteran to be escorted via armed guards to a VAMC for an examination. However, the Veteran was not "brought up" and failed to appear for the September 2012 VA examination. An October 2012 e-mail communication from VA to VBA states that a VA employee contacted the Veteran's correctional facility and spoke with the Veteran's counselor who stated that the Veteran will never be released and that the correctional facility does not have the required entities to perform the TBI (traumatic brain injury) examination that had been requested. The counselor also stated that the Veteran could be transported to a VAMC for an examination, but that he would have to remain in handcuffs during the examination and had to be escorted at all times by two armed guards from the correctional facility. However, the VA police informed the VA employee that no incarcerated veteran can be brought on VA property handcuffed and/or under armed guard. The RO later determined that all efforts to provide the Veteran with an examination had been exhausted. While it does not appear that the RO contacted the C&P Service Program Staff (214A) for further assistance with scheduling a VA examination for the Veteran, pursuant to the Board's April 2012 remand, the Board finds that further attempts at scheduling an examination would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to the requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result of a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). It would clearly be futile here since the correctional facility states they do not have the ability to have an examination conducted there, and even if the Veteran were transported to a VA facility, it would be in handcuffs and with armed guards, which is simply against VHA's policy. Moreover, it must be emphasized here that an examination or opinion is not even needed based on the record. Although there is a head injury in service, there is absolutely no persuasive and competent evidence that the Veteran has current diagnoses of disorders that may be associated with that injury or otherwise with his military service. The Veteran is not competent to relate any symptoms he now experiences as being a residual of head trauma, and there is no medical evidence showing such. This is discussed in more detail below. Thus, the Board finds that VA has satisfied the duty to assist and inform the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claims. II. Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. 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) (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, on the claims. The Veteran must 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as brain hemorrhage or brain thrombosis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Here, as will be explained more thoroughly below, although service treatment records indicate the Veteran likely suffered an in-service head injury, there is no competent medical evidence indicating the Veteran suffered from brain hemorrhage or brain thrombosis at any time during or after his military service. 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 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006). Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection. Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Veteran's STRs confirm in September 1966 the Veteran was involved in a fight and was kicked in the face, fracturing his nose. X-rays at that time revealed "undisplaced fractures of the nasal bones with surrounding soft tissue swelling." The Veteran was hospitalized for several days to place the fracture. His November 1966 separation examination reveals the Veteran at that time complained of frequent headaches, dizziness, eye trouble and "running ears" related to his fractured nose. Other than noting the Veteran's complaints, the physician at that time did not diagnose the Veteran with any specific disorder related to his symptoms or the September 1966 injury. Accordingly, while the STRs indeed confirm an in-service injury, the records do not support in-service incurrence of chronic residuals of a head injury or encephalitis. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The crucial inquiry, then, is whether the Veteran currently has chronic residual disorders or encephalitis attributed to his in-service nose fracture. The Board concludes he does not. The Board finds it noteworthy that the Veteran is currently service-connected for residuals of his fractured nose, to include traumatic deviation of the nasal septum. The Veteran now claims he also suffered a head injury at the time of the September 1966 fight and suffers from "permanent damage of the left hemisphere of [his] brain." He further claims he had encephalitis after undergoing nose surgery related to the in-service nose fracture. This case is complicated by the fact that the Veteran was incarcerated in October 1976 and remains incarcerated to this day. The correctional facility has declined releasing medical records to the VA despite multiple requests and, therefore, post-service medical records are scarce. Post-service, VA treatment records dated May 1969 indicate the Veteran requested rhinoplasty after fracturing his nose a second time (after service) and complaining that the second fracture did not set as well. There are no records on file confirming any actual surgery. The only other medical evidence, is a letter from the office of the Veteran's private physician Dr. Berry dated October 1979. The letter, written by a medical secretary, merely confirms the Veteran was seen by Dr. Berry in March 1972 for neck pain, which at that time was diagnosed as a neck sprain after X-rays returned within normal limits. Dr. Berry no longer worked at the office so further records could not be provided. The Veteran has identified other treatment, mainly received while incarcerated. The correctional facility, as mentioned above, however, has declined releasing these records because the Veteran is still currently incarcerated. The RO obtained a VA medical opinion in May 2010 to ascertain whether the evidence in this case supported a finding of current disorders related to the September 1966 in-service injury. The VA examiner opined that because the nose fracture was incurred in a fight, it is "at least as likely as not" that the Veteran suffered a mild head injury at the time of his in-service nose fracture. On the other hand, there simply is no medical evidence documenting any particular persistent symptoms over time, such as chronic headaches, dizziness, concentration problems, and so forth. Accordingly, the VA examiner could not diagnose or otherwise quantify any specific residuals with his in-service head injury. The VA examiner further noted the STRs do not confirm any evidence of skull fracture or orbital fracture and there is no post-service documentation of the Veteran ever having an encephalitis, and, therefore, the VA examiner opined that "the encephalitis, which is claimed by the [V]eteran, is likely not related to the [V]eteran's nasal fracture or treatment in the service." The Board finds the VA examiner's opinion persuasive. It is based on a thorough review of the Veteran's claims folder, to include STRs associated with his in-service nose fracture. While the VA examiner found it likely the Veteran suffered a mild head injury at the time of the September 1966 nose fracture, there simply was insufficient medical evidence to diagnose the Veteran with any residual, to include encephalitis, related to the in-service head injury. In short, due to the unfortunate lack of medical records, the claims folder simply does not confirm medical evidence of current diagnoses related to an in-service head injury, to include encephalitis. On review of the evidence above, the Board notes that the Veteran has complained of neck pain, but pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, there is no medical evidence showing that any diagnoses related to an in-service head injury, to include encephalitis, have been present at any time during the pendency of the claims and the report of a current records review shows the VA examiner could not diagnose or otherwise quantify any specific residuals with his in-service head injury; he has accordingly not shown a current disorder for which service connection can be granted. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Lay evidence can, in some circumstances, also be competent to establish a medical diagnosis. See Davidson, supra. In this regard, the Board recognizes that there is no bright line rule that laypersons are not competent to offer diagnoses or etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has current diagnoses related to an in-service head injury, to include encephalitis, due to an in-service head injury is too complex to be addressed by a layperson. While the Veteran is certainly competent to testify to symptoms he observed during and since his service, such as neck pain, he is not competent to offer an opinion as to the cause of this disability. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of any current disabilities is not competent evidence and is entitled to low probative weight. For the foregoing reasons, the claims for service connection for residuals of a head injury and encephalitis must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, 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 Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for encephalitis (inflammation of the brain) is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals