Citation Nr: 1304518 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 05-25 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for headaches related to head injury. 2. Entitlement to service connection for cognitive/psychiatric/neurological disability or other residuals of head injury. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to March 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was last remanded in September 2011 for further development. The Veteran presented testimony at a Board hearing in May 2008, and a transcript of the hearing is associated with his claims folder. Although the issue on appeal has been described in terms of residuals of head injury to include headaches and cognitive/psychiatric disability, the Board has bifurcated the issues as shown on the first page of this decision in view of the fact that the Board finds that a partial grant of the benefits sought is warranted in this case. FINDINGS OF FACT 1. The Veteran's headache disability is causally related to head injury during service. 2. Cognitive/psychiatric/neurological disability is not causally related to head injury during service, and there are no other residuals of head injury during service except for headaches. CONCLUSIONS OF LAW 1. Headache disability was incurred during the Veteran's active duty service. . 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 2. Cognitive/psychiatric/neurological disability or other residuals of head injury were not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in August 2004. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran an August 2008 correspondence that fully complied with Dingess. The claim was subsequently readjudicated, curing the timing error. Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the claim in June 2010 and October 2011, with him failing to appear without good cause for later VA examinations; and afforded the Veteran the opportunity to give testimony before the Board. VA has no further duty to examine the Veteran as he failed to appear for the most recent VA examinations without providing good cause for such failure. See 38 C.F.R. § 3.655 (2012). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's September 2011 remand by attempting to fully examine the Veteran, but he failed to cooperate; and then by readjudicating the claim. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issue before the Board involves a claim of entitlement to service connection. 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. § 1131; 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic disease of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). When entitlement to a benefit cannot be established or confirmed without an examination and a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (2012). The Veteran appeals the RO's denial of service connection for residuals of a brain injury (to include headaches). He asserted in August 2005 that he was treated for his brain condition in service. Virtual VA (VA's electronic data storage system) currently contains no relevant medical records. Service treatment records show that the Veteran was seen in January 1977 after allegedly consuming more than a fifth of gin and then slipping and falling in the latrine, striking the back of his head against a commode. He had had no witnessed loss of consciousness but complained of visual disturbance initially, and headache. On evaluation he was agitated and holding his head. He was oriented to person and place but was unclear about the circumstances immediately following the injury. He had a small stellate laceration in the left occiput. His pupils were equal, round, and reactive to light, and external ocular movements were equal. The assessment was possible concussion; rule out fracture. A week later, sutures were removed. There was no mention of headaches or neurological impairment. On service discharge examination in February 1977, the Veteran's head, psychiatric, and neurological statuses were normal. The Veteran mentioned problems with his back and side but reported that everything else seemed to be in excellent condition. In March 1977, he reported that there had been no change in his medical condition since the separation examination. On VA examination in May 1977, the Veteran reported back and side pains. The Veteran's neurological and psychiatric evaluations were normal and the examiner stated that there were no objective findings of a head injury on examination. Private medical records dating from 1975 to 1997 which are contained in the Veteran's claims folder make no reference to headaches, psychiatric impairment, cognitive impairment, or traumatic brain injury. On VA evaluation in May 1996, the Veteran reported a previous auto accident with head injuries. On VA examination in June 1998, the Veteran reported striking his head against a commode in service. The examiner noted that there was no mention of any loss of consciousness but that the Veteran just had some headache. On examination, his head was normal. He was oriented to time, place, and person. His behavior had no complications. His comprehension was adequate, and his responses were adequate. Emotional reaction was stable and he responded well to social and environmental status. The diagnosis was post-traumatic 1977 head injury with possible mild concussion, but with no clinically detected neuromuscular or cognitive deficits. It was felt that mild headaches were likely secondary to a post-traumatic head injury syndrome. On private evaluation in September 1998, the Veteran reported that he was still having some problems with headache. On VA evaluation during hospitalization in December 1999, the Veteran complained of a headache which he stated had been occurring for the past 20 years after he fell out of bed one evening. Ever since he was attacked with a lead pipe in November 1999, resulting in loss of consciousness, his headache had been getting worse. A VA psychiatrist assessed chronic headache. Another VA record from this hospitalization shows a recent history of head trauma with headache. December 1999 VA medical records show assessments of mood disorder secondary to substance dependence. A May 2000 VA medical record shows that the Veteran complained of headache and neck pain following an injury sustained that month. The impressions were status post contusion to the head; and cervical strain. On private evaluation in February 2002, the Veteran reported a headache and the assessment was muscle spasm headache. In May 2003, he complained of headache and of muscle pain in his neck and back. The assessment was muscle pain. On VA evaluation in February 2004, the Veteran reported having a headache for years. On VA evaluations in March and August 2004, bipolar disorder was reported. On VA evaluation in October 2004, the Veteran reported that headache began when he got hurt in service. Headaches were less frequent when he was younger but more severe now. He stated that he fell from the top of the barracks to the floor and lost consciousness in service. The impression was migraine - rebound. In March 2005, he reported daily headaches since a head injury 25 years beforehand. CT scans of his head then and in August 2005 were normal. In October 2005, he reported headaches for decades. In November 2005, the impression was migraine rebound. He reported a loss of consciousness after the service head injury again in January 2006. During the Veteran's May 2008 hearing before the undersigned, he testified that post-service, he went back to the same job he had had pre-service, but he was having problems going to sleep at night and trying to run the machinery. His mind would be in a daze. In August 2009, the Veteran reported that during service, he got dizzy and fell from the top to the bottom of a long staircase. The next thing he remembered was that he was in the hospital and the doctors were standing over him telling him that they thought he would (not) be alive because his brains were swollen so big. He reported that he did not have memory loss until this happened. He started having problems getting up for duties, getting in formation, and dealing with other soldiers. On VA examination for compensation purposes in June 2010, the Veteran reported headaches. The Veteran's claims folder was reviewed. It was noted to contain no service treatment records and that the available medical records began in 1999. The examiner noted that the claims folder had been lost and rebuilt. In available medical records, there was a notation of a long history of headaches. The Veteran reported an in-service head injury. He advised that he had been going up stairs in service and blacked out or something. He fell backwards down the stairs perhaps 12 feet. He awoke in the hospital and they told him that his brain had swelled up really badly and that it was a miracle that he was still alive. He was hospitalized for several days and then sent back to the barracks. He did not perform well and was put at a desk for a time. He had had headaches since the fall. The assessment was migraine with daily headache and prostrating attacks weekly by history but unsubstantiated in the medical record. There was at least a thread in the medical record that suggested that his headaches trace back to service. The examiner could not tell if the Veteran was just burned out from substance abuse, borderline intelligent, or had post-traumatic brain disorder. He felt that the Veteran needed neuropsychiatric testing. Such testing was performed and showed invalid results. A specific memory test for malingering was abnormal and indicative of malingering. The examiner concluded that there was no convincing evidence of a cognitive disorder related to head trauma. On VA examination in October 2011, the Veteran reported falling down stairs in service and being told that his brain was swollen up. His head was hurting and he stayed in the hospital about 3 days. His memory had never been good since then and it never improved until after he began taking medicine for his memory about 20 years beforehand. On testing, the Veteran had mild impairment of memory and judgment. Prior neuropsychological testing was noted to have been performed in June 2011 and the results were felt to be invalid. The examiner indicated that the Veteran's explanation of what happened would be consistent with a traumatic brain injury likely mild to moderate in severity. He described no amnestic period once he awoke the next day in the hospital, and remembered what the doctor told him. He blamed everything that he had difficulty with on that injury and indicated that the symptoms never significantly improved. The examiner noted that a lack of any significant improvement in symptoms was not usually associated with mild or moderate traumatic brain injury. Most symptoms usually resolve or improve significantly. To have such profound symptoms when associated with a traumatic brain injury, usually a severe traumatic brain injury was involved with prolonged duration of unconsciousness and post-amnestic period, and most of the time, there would be some residuals shown on CT scan years later. The examiner found nothing in the records or in the description that would indicate that the Veteran's cognitive issues would be directly related to traumatic brain injury. His headaches may have initially been caused by the injury but the traumatic brain injury could not fully explain his symptoms. The Veteran failed to report for VA examinations in November and December 2011. Evidence which might have been obtained as a result of such examinations therefore cannot be considered. Analysis The evidence persuasively shows that the Veteran did suffer a head injury during service. The question is whether he has any current disability resulting from the inservice head injury. After reviewing the evidence, the Board finds that a reasonable doubt exists as to whether the Veteran's headache disability is causally related to the inservice injury. He did complain of headaches at that time, and the evidence reasonably suggests that he did suffer headaches off and on over the years. Although there is some suggestion that a post-service injury or injuries may be the cause of the headaches, the overall evidence is in a state of equipoise. In fact, one VA examiner commented that the headaches may have initially been caused by the inservice injury. Under the circumstances, the Board finds that service connection for headache disability related to inservice head injury is warranted. 38 U.S.C.A. § 5107(b). However, the Board must also conclude that the preponderance of the evidence is against a finding that a psychosis or psychiatric disorder, cognitive, neurological, or other disability (other than headache disability) is related to the inservice-head injury. None were manifest in service or within a year post-service and the Veteran's psychiatric and neurological status were normal on service discharge examination in February 1977. The Veteran reported himself to be in excellent condition at the time, and he indicated that there had been no change in his condition in March 1977. Moreover, no objective findings of psychiatric impairment, cognitive impairment, neurological impairment were present on VA examination in May 1977, shortly after service, or for many years post-service. This evidence is deemed to be more probative than the Veteran's more recent statements to the contrary, of symptoms in service and continuity since service, as it was contemporaneous to service. Moreover, in June 2010, a VA examiner found that there was no convincing evidence of a cognitive disorder related to head trauma, and this was based in part on neuropsychiatric testing which showed malingering. An examiner in October 2011 found nothing in the Veteran's records or description indicating that current cognitive issues were related to a traumatic brain injury. He based this in part on his knowledge of the effects of brain injuries, and the history provided by the Veteran at that time. The Board notes that in August 2008, the Veteran attributed in-service bedwetting to the in-service head injury, but the service treatment records show a history of bedwetting before he fell in January 1977. No current psychiatric disease has been related to service by any competent medical evidence. The Board has considered the Veteran's statements regarding symptoms of head injury (other than headaches) since service, but does not find such statements to be credible when viewed against that backdrop of the overall record. Such statements are inconsistent the Veteran's failure to report such for a number of years after service although he sought medical treatment over the years for other disorders. Moreover, the medical opinions of trained medical personnel argue against a finding of pertinent symptoms over the years. In sum, the Board finds that the evidence is in a state of equipoise on the question of whether headache disability is causally related to the inservice head injury. However, the preponderance of the evidence is against a finding that the inservice injury resulted in any other residuals, whether they be cognitive/psychiatric, neurological, or otherwise. ORDER Service connection for headache disability is warranted. To this extent, the appeal is granted. Entitlement to service connection for cognitive/psychiatric/neurological disability or other residuals of head injury is not warranted. To this extent, the appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs