Citation Nr: 1304311 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 05-32 451A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for residuals of a head injury, to include headaches, hydrocephalus with a shunt, and concussion. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esquire WITNESS AT HEARINGS ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1983 to May 1987. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an August 2009 decision, the Board denied service connection for an acquired psychiatric disability to include depression and posttraumatic stress disorder (PTSD), residuals of a head injury, to include headaches, hydrocephalus with a shunt, and concussion, residuals of a neck fracture with neck pain, and residuals of a back fracture with back pain. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court issued a memorandum decision in April 2011 in which the Board's August 2009 decision was affirmed in part and vacated and remanded in part. The Court affirmed the Board's decision as to the denial of service connection for an acquired psychiatric disability to include depression and PTSD, residuals of a neck fracture with neck pain, and residuals of a back fracture with back pain. Therefore, these issues are not before the Board. The Veteran testified at hearings before the Board in July 2007 and July 2009. The transcripts of the hearings are associated with the Veteran's claims file. Because two different Veterans Law Judges held hearings in this appeal, the following decision will be reviewed and signed by a panel of three Veterans Law Judges, which includes the Veterans Law Judges who presided over the July 2007 and July 2009 hearings. See 38 C.F.R. § 20.707 (2012). In June 2012, the Veteran was sent a letter asking if he wanted to have another hearing before a third Veterans Law Judge. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011) (holding that a veteran is entitled to an opportunity for a hearing before all the [VLJs] who will ultimately decide his hearing). In July 2012, the Veteran responded that he desired a videoconference hearing. Therefore, the Board remanded the Veteran's claim for a hearing in September 2012. However, in November 2012, the Veteran's representative stated that the Veteran wished to withdraw his request for a hearing. Therefore, the Board's remand was substantially completed and the Board will proceed with the decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In a December 2011 rating decision, the RO denied the Veteran's petition to reopen the claim of service connection for partial seizures. The decision has not been appealed and is therefore not before the Board at this time. FINDING OF FACT The evidence in this case is in equipoise as to whether the Veteran's residuals of a head injury, to include headaches, hydrocephalus with a shunt, and concussion, are the result of an injury suffered in active service. CONCLUSION OF LAW Residuals of a head injury, to include headaches, hydrocephalus with a shunt, and concussion, were incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 1137, 5103, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As the claim for service connection is being granted, the decision is favorable to the Veteran and therefore there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). LAW AND ANALYSIS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). However, medical evidence of a current disability and nexus is not always required to establish service connection. See 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) (footnote omitted). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). The Veteran testified that he believes his headaches and hydrocephalus were the result of a fall that he sustained during his period of active service. He stated that he fell off his top bunk in 1985 when he was stationed in Okinawa, Japan. He reported that he landed on his forehead on a concrete floor from about five feet up. He stated that he sought treatment for neck pain and was given a neck brace. He testified that he continued to have headaches and neck pain during service. The July 23, 1985 service treatment record shows that the Veteran complained of neck pain. He stated that a few weeks ago, he fell from his bunk and since then, he had a sore neck. A cervical collar was issued. The assessment was listed as moderate strain. A subsequent July 31, 1985 treatment record noted that the Veteran was seen for follow-up of cervical strain. The Veteran reported experiencing headaches for three days. He stated that he went out drinking the last couple nights. It was noted that there was alcohol on his breath when he arrived to sick bay. The impression was listed as alcohol smell and resolving muscle strain to the neck. The August 2, 1985 service treatment record noted questionable alcohol smell on breath and an impression of resolving cervical strain/sprain. A December 1985 consultation sheet shows that the Veteran was referred to the counseling center as a result of a command referral because the Veteran received a DWI on December 11, 1985. It was noted that the Veteran began drinking regularly at age 17. The evaluator explained that the health record revealed treatment for injured neck resulting from falling out of his rack while intoxicated - August 2, 1985. The January 1986 service treatment record shows that the Veteran reporting falling from his top bunk and hitting his head and since then, he found himself falling asleep and developing headaches. The February 1986 service treatment record showed that the Veteran continued to complain of headaches. The separation report of medical examination does not reveal any neurological abnormalities. Following separation from active service, the Veteran was admitted to the emergency room after a motorcycle accident in June 1994. At the time of his admission, the Veteran smelled of alcohol, reported having consumed a half case of beer, and was determined to be intoxicated. A CT scan of the Veteran's head conducted on admission revealed hydrocephalus, which was noted as probably old, and the Veteran underwent surgery for placement of a ventriculoperitoneal shunt. The Veteran's private neurosurgeon, Dr. N.T., submitted a letter dated in August 2007. Dr. N.T. explained that he treated the Veteran since June 1994. The Veteran presented with an acute head injury due to a motorcycle accident in June 1994. At the time, he was found to have severe hydrocephalus, or water on the brain, which required the placement of a ventriculoperitoneal shunt to drain the fluid. It was clear that the hydrocephalus was not due to his acute head injury in 1994. Dr. N.T. explained that if it had been, it would most certainly have been fatal. Therefore, Dr. N.T. came to the conclusion that the hydrocephalus was chronic and had been there for many years. The Veteran's only other history of head trauma significant enough to have caused the hydrocephalus was a fall while he was in the Marine Corps in Japan in 1985. At that time, he reported that he suffered a concussion and a significant neck injury which was testimony to the severity of the head injury. Dr. N.T. stated that while it was impossible in the absence of CT scans before that injury to absolutely provide that it was the cause of the hydrocephalus, it can be said with a reasonable degree of medical certainty, that the injury was the most likely cause of the hydrocephalus. Dr. N.T. stated that it was perfectly reasonable to honor the Veteran's claim for service-connected disability. The Veteran underwent a VA traumatic brain injury examination in July 2008, during which he reported his in-service fall and resulting loss of consciousness and neck injury. The examiner opined that the Veteran's hydrocephalus was caused by his reported in-service head injury, as the hydrocephalus discovered in 1994 was thought to be the result of a prior injury, and the Veteran was treated for headaches in service after his fall. In a letter from the Veteran's VA physician, Dr. C.M.S., it was noted that the Veteran had been treated for seizures for the last seven years (The Board notes that the issue of service connection for seizures has been denied by the RO and is not before the Board at this time). It was noted that the Veteran reported that he fell in August 1985 and developed neck pain. Dr. C.M.S. stated that when people fall from a height on the ground, due to the design of human anatomy of the head and neck, it was almost impossible to hurt the neck without hurting the head. From a reasonable degree of medical certainty, Dr. C.M.S. believed that the Veteran sustained a head injury when he fell from the bunk bed while asleep in August 1985. First, the medical evidence shows that the Veteran has a current disability. The VA treatment records show that the Veteran has been assessed with hydrocephalus status post shunt placement. See also McClain v. Nicholson, 21 Vet. App. 319 (2007). The August 2007 letter from Dr. N.T. noted that the Veteran had current hydrocephalus. In addition, the July 2008 VA examination report includes a diagnosis of headaches. Next, with respect to an in-service event, injury, or disease, the service treatment records show that the Veteran sought medical treatment for headaches and neck pain following an injury after falling off his bunk. The January 1986 service treatment record also shows that the Veteran mentioned hitting his head during the fall. In the August 2009 decision, the Board determined that the Veteran's in-service injury, which involved a fall from his bunk, was the result of willful misconduct due to alcohol intoxication. Disabilities resulting from willful misconduct are not considered incurred in the line of duty and, therefore, are not compensable. 38 U.S.C.A. § 105(a), 1110, 1133. In the Court's memorandum decision, the Court acknowledged the Veteran's long history of alcohol abuse. However, the Court determined that the Board's finding that the Veteran's in-service injury was sustained while intoxicated was erroneous. The Court explained that the Board relied on the December 1985 service treatment record which noted that the health record revealed treatment for injured neck resulting from falling out of his rack while intoxicated - August 2, 1985. However, the August 1985 service treatment record was dated after the Veteran's injury in July 1985 and only appears to note that the Veteran had alcohol on his breath the date of his admission in August 1985. In addition, the July 31, 1985 record also noted that the Veteran had alcohol on his breath and reported drinking the last couple of nights. However, the July and August 1985 records do not provide any documentation that the Veteran was drinking at the time of his injury. The Court noted that there was no conclusion reached for the determination that the Veteran was intoxicated at the time of his fall. The Court therefore reversed the finding that the Veteran was intoxicated at the time of his fall, as well as the conclusion that any injury resulting therefrom was the result of willful misconduct. In light of the Court's decision, the Board determines that the Veteran sustained an in-service injury, consisting of head trauma, during his period of active service. In reviewing the evidence of record, the Board concludes that in this case, as it now stands, the evidence is at least in relative equipoise as to whether the Veteran's residuals of a head injury are etiologically related to his in-service injury. As noted above, the service treatment records show that the Veteran complained of neck pain after he fell from his bunk in 1985 and thereafter complained of headaches and neck pain. The Veteran's VA physician also opined that it was reasonable that the Veteran sustained a head injury at the time of his fall in 1985. Thus, the Board finds that it is reasonable to believe the Veteran's assertions that he hit his head when he fell from his bunk. In addition, there is positive evidence relating the Veteran's residuals of a head injury to his in-service injury. The Veteran's private physician, Dr. N.T., opined that the hydrocephalus was not due to the head injury in 1994 and arrived at the conclusion that the hydrocephalus was chronic and had been there for many years. The physician opined that it could be said with a reasonable degree of medical certainty that the in-service injury was the most likely cause of the hydrocephalus. In addition, the July 2008 VA examiner reviewed the claims file, examined the Veteran, and opined that it was at least as likely as not that the Veteran's hydrocephalus was caused by head injuries that he had in the service and that his headaches were most likely caused by the head injuries he had in service. However, the examiner did note that he or she was unable to find the service treatment records of a head injury. Although the Board could remand for another nexus opinion regarding the etiology of the Veteran's claimed disability, the Board finds that the medical evidence is sufficient to decide the Veteran's claim. 38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose). Indeed, the Board finds that Dr. N.T.'s opinion is persuasive as the opinion is well reasoned and supported by reference to objective medical evidence. Accordingly, resolving the benefit of the doubt in favor of the Veteran, the Board will grant service connection for residuals of a head injury, to include headaches and hydrocephalus with a shunt and concussion. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for residuals of a head injury, to include headaches and hydrocephalus with a shunt and concussion, is granted. Mark D. Hindin L.M. Barnard Veterans Law Judge Acting Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ Dennis F. Chiappetta Chief Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs