Citation Nr: 1306265 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 04-28 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for residuals of traumatic brain injury, to include neurological disorders manifested by dizziness, memory loss, and cognitive difficulties. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied entitlement to service connection for a neurological condition. The Veteran was scheduled to present testimony before a traveling Veterans Law Judge in October 2005, but he failed to report to the hearing without explanation and has not requested that the hearing be rescheduled. See 38 C.F.R. § 20.704 (2012). In October 2007, January 2011, and April 2012, the Board remanded this complex case for further evidentiary development. In accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, in January 2013 the Board requested, and in February 2013 received, a medical expert opinion from the Veterans Health Administration (VHA). The original claimed disability has been recharacterized as residuals of traumatic brain injury (TBI), to include neurological disorders manifested by dizziness, memory loss, and cognitive difficulties, in order to be consistent with the evidence of record. FINDINGS OF FACT 1. The Veteran is presumed to have been in sound condition at entry into service, as clear and unmistakable evidence of a pre-existing TBI disorder is not present. 2. The Veteran has residuals of traumatic brain injury, to include neurological disorders manifested by dizziness, memory loss, and cognitive difficulties that are related to traumatic brain injury during active service. CONCLUSION OF LAW The criteria for service connection for residuals of TBI, to include neurological disorders manifested by dizziness, memory loss, and cognitive difficulties, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.304 (2012). NOTICE AND ASSISTANCE VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claims entitlement to service connection for residuals of TBI, to include neurological disorders characterized by dizziness, memory loss, and cognitive difficulties. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Id. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) and as revised by 71 Fed. Reg. 52744-52747 (final rule revising § 3.310 to conform to the Court's holding in Allen v. Brown, 7 Vet. App. 439 (1995) (en banc)). Some chronic diseases, including brain hemorrhage, brain thrombosis, or tumors of the brain or spinal cord or peripheral nerves, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may be established presumptively for a chronic disability resulting from an undiagnosed illness or medically unexplained chronic multisymptom illness if such illness became manifest either during active service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). An "undiagnosed illness" is defined as one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). For these purposes, manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness includes both neurological signs or symptoms, and neuropsychological signs or symptoms. 38 C.F.R. § 3.317(b)(6). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Factual Background The Veteran's service personnel records confirm that he served in the Southwest Asia Theater of operations during the Persian Gulf War. The Veteran's service treatment records include the September 1979 enlistment examination report of medical history, showing in pertinent part, that he reported he had not had frequent or severe headaches, dizziness or fainting spells, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble; but he did have a history of a head injury prior to service that included a period of unconsciousness. He explained that he fell from a tree in 1967 with a brief unconsciousness. The associated report of examination shows that neurologic and psychiatric evaluations were normal. Service treatment records demonstrate that the Veteran had at least four head injuries during service. He was treated in December 1980 after he tripped and slammed his head into a bulkhead. He complained of pain in the neck from striking his head. The assessment was cervical strain. He was seen in June 1981 with complaints including being dizzy and light headed with loss of equilibrium. He reported a history of head trauma 13 years before, and he was doing well until six months before. Presently he had progressive symptoms of "pressure" on the eye, tinnitus, light headedness, and he described expressive aphasia. The impression was neurological symptoms-soft; and the plan was to run neurological examination due to concern about the aphasia symptoms. An associated consultation sheet contains a provisional impression of expressive aphasia secondary to unknown etiology. The Veteran was treated in October 1981 after hitting his head while walking through a hatch, receiving a laceration to the mid-cranium, with no loss of consciousness. The assessment was laceration mid cranium. The Veteran was treated in August 1982 for complaints of loss of feeling in the right hand and foot. He reported a history of head trauma with concussion about 18 years before, and that he had occasional headaches, anxiety and depression in the past. He was treated in October 1982 for complaints of vertigo with recent attacks of three to four times a week. The Veteran was treated in October 1983 following a motor vehicle accident during which his head struck the windshield with brief loss of consciousness. He reported complaints of cervical neck pain and head pain; he was now sleeping more; and his right shoulder had fallen asleep twice since the injury. The assessment was cervical strain. The Veteran was treated in May 1984 after trauma to his head when a baseball or softball hit him at the bridge of the nose and shattered his glasses. He reported complaints of dizziness but no loss of consciousness. Radiographic examination of the skull facial bones showed two fractures of the nasal bone. The assessment was fracture of nasal bridge. The Veteran was seen in February 1987 for complaints of dizzy spells, headaches, and disequilibrium for two to four months, which was assessed then as vertigo of unknown etiology. Other medical records in February and March 1987 show complaints of light headedness in the past six months, intermittent stuttering, and memory difficulties. An April 1987 report of CT examination contains a provisional diagnosis of TBI; and after examination, an impression of small right focal lesion of right parietal lobe, which may represent a post traumatic change, but a meningioma could not be excluded. When seen in May 1987 the Veteran reported that in the last six months, he had multiple neurologic complaints, including ringing in the ears, buzzing, and lightheadedness, and loss of concentration. The assessment was to rule out meningioma; rule out traumatic residual. A May 1987 report of CT examination contains an assessment of questionable primary slow growing brain tumor or possibly avascular malformation that is partially calcified; or possibly an inflammatory process. The report of a June 1987 MRI scan of the head concluded that, in essence, the scan was normal. Service treatment records show treatment for psychiatric complaints variously diagnosed to include depression; anxiety/situational reaction; and occupational problem-no depression or psychosis. At the February 1992 separation examination, the report of medical history shows that the Veteran reported he had had dizziness or fainting spells, head injury, broken bones, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble. The report contains a notation that in 1970 the Veteran suffered a head injury with severe concussion and coma for six months, with sequela of right ear hearing loss, amnesia for past events, and dizziness, all resolved. He reported that he had depression, nervousness, and insomnia during a cruise from June to December 1991. The February 1992 report of the separation examination contains no abnormal evaluations regarding neurologic or psychiatric examination. Post-service medical evidence and lay statements of the Veteran show that the Veteran has current neuropsychological symptomatology including dizziness, memory loss, and cognitive difficulties. A May 2010 VA treatment record shows that the Veteran reported having increased loss of memory, confusion, and difficulty problem-solving. He thought that his cognitive skills had deteriorated and was seeking available services. A May 2010 VA examination for mental disorders noted in pertinent part that significant non-psychiatric illnesses included insomnia and tinnitus. An October 2010 VA neurology clinic record shows that the Veteran was seen for TBI evaluation. He reported present complaints of minor headaches. The provider noted that the Veteran was seen in July 2010 for TBI evaluation with memory problems. After examination the impression was (1) history of TBI, and (2) migraine headaches. The report of an October 2011 VA examination for PTSD indicates that the Veteran had psychiatric symptoms. The report noted in pertinent part that the Veteran had chronic sleep impairment, mild memory loss, difficulty concentrating. VA treatment records in January 2012 show that the Veteran was seen for a long history of migraines, with a recent onset of migraine with right facial weakness, dysphasia, confusion, right arm feeling funny. On neurology consultation, examination showed right facial droop, and the diagnosis was complicated migraine. In response to a Board request, in February 2013 a medical expert from the VHA provided an opinion as to whether there is an etiological nexus between the Veteran's period of service and any present neuropsychological symptomatologies, to include as being a result of head injury/TBI, or as due to an undiagnosed illness acquired as a result of environmental exposures during service in the Southwest Asia Theater of operations during the Persian Gulf War. In the opinion, the medical expert (a board certified neurologist) reviewed the clinical record, essentially as it is discussed above, and answered pertinent questions posed by the Board as follows. With respect to the question of whether there was aggravation in service of a preexisting neuropsychological disability, the medical expert opined that there was no clear and unmistakable evidence that a temporary loss of consciousness in 1967 associated with falling from a tree at that time had resulted in complaints of dizziness, memory loss or cognitive difficulties experienced while on active duty. As to whether there is an "undiagnosed illness" associated with neuropsychological disorder characterized by dizziness, memory loss or cognitive difficulties, the examiner opined that these symptoms were associated with a diagnosis as explained below. With respect to the question of whether there is a diagnosed disorder etiologically linked to service or to a service-connected disability, the medical expert concluded that the Veteran sustained a mild TBI in service, based on the clinical history in service and specifically the Veteran's comment in June 1981 that he had had vertigo for six months since the incident in December 1980. With respect to TBI associated symptoms reported by the Veteran, the medical expert noted: that the reported vertigo or dizziness is acknowledged to be associated with mild TBI with a broad differential diagnosis; that the cognitive difficulties the Veteran reported experiencing have been seen in other patients with mild TBI; that the Veteran's difficulty concentrating or learning new things could be associated with frontal lobe damage, or diffuse axonal injury (not visible using CT or MRI technology at the time of injury). The medical expert concluded with the following opinions: (1) The Veteran had a mild TBI on active duty, most likely documented in the clinic note of December 1980, although other head traumas, especially hitting his car's windshield, may have also caused mild TBI. The December 1980 accident was the most likely and the one that the Veteran commented on having persistent symptoms six months later. (2) These symptoms occurred on active duty. (3) If these symptoms are still present, their origin was while on active duty. Analysis The Veteran originally claimed service connection for a neurological condition. The procedural history shows that the claim has been adjudicated by the RO as to the issue of whether a current disability was due to either head injuries in service, or alternatively as due to an undiagnosed illness. As succinctly discussed by the VHA medical expert above, the evidence overall does not support an etiology associated with an undiagnosed illness as the Veteran's claimed neurological condition is diagnosed as residuals of mild TBI. Presently, in pertinent part, service connection is already in effect for (1) posttraumatic stress disorder; (2) undiagnosed neurological condition, ulnar neuralgia right extremity; (3) undiagnosed neurological condition, left lower extremity; (4) undiagnosed neurological condition, peripheral neuralgia, right lower extremity secondary to Gulf War illness; (5) undiagnosed neurological condition, left upper extremity. Thus the service connection analysis does not include these service-connected neurologic or neuropsychological disabilities. Based on the VHA medical expert's cogent and probative opinion, with a supporting rationale that is entirely consistent with the record, the Veteran is considered sound at entry into service in September 1979. The Veteran's service treatment records show a number of concussive type head injuries resulting in contemporaneous neurological symptoms as discussed, and include a significant diagnosis of TBI in 1987. Post-service medical evidence and lay statements of the Veteran show that the Veteran has current neuropsychological symptoms including dizziness, memory loss, and cognitive difficulties. The February 2013 VHA medical expert opinion provides the most probative evidence as to the likelihood that the current residuals of TBI, to include neurological disorders manifested by dizziness, memory loss, and cognitive difficulties, are related to TBI in service. Based on an accurate review of the clinical record, the medical expert opined that the Veteran's residuals of TBI had their origin while on active duty. In light of the competent evidence of the Veteran's in-service TBI, the Board finds that residuals of TBI had onset during service, and service connection for residuals of TBI, to include neurological disorders manifested by dizziness, memory loss, and cognitive difficulties, is warranted. ORDER Entitlement to service connection for residuals of TBI, to include neurological disorders manifested by dizziness, memory loss, and cognitive difficulties, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs