Citation Nr: 1306485 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 03-29 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to residuals of blunt head trauma to include traumatic brain injury (TBI). 2. Entitlement to service connection for psychiatric disability claimed as depression. REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney at Law ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the claims of entitlement to service connection for residuals of blunt head trauma and depression. In December 2005, the Board denied service connection for TBI and depression. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2007 memorandum decision, the Court vacated the Board's decision and remanded the case to the Board. In June 2008, the Board again denied the claims. The Veteran appealed this decision to the Court. In May 2010, the Court issued a Memorandum Decision vacating and remanding the claims. The Board has recharacterized the psychiatric claim on appeal more broadly reflect the benefit sought. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In a February 2011 and October 2012, the Board remanded the case for further evidentiary development. The case has been returned for Board disposition. FINDINGS OF FACT 1. Symptoms attributable blunt head trauma or TBI are not shown. 2. Depression, anxiety, irritability, and impulsivity are not attributable to service to include boxing and history of head injury in service. CONCLUSIONS OF LAW 1. Residuals of blunt trauma to the head, to include traumatic brain injury, were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. A psychiatric disorder, to include depression, was not incurred in or aggravated by active service. 38U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran filed his claims in April 2002 and May 2004. While he was provided an initial VCAA letter in June 2003, he was not provided fully adequate VCAA notice prior to the July 2003 rating decision that initially denied service connection for blunt head trauma and depression. However, the RO subsequently provided the Veteran with fully adequate VCAA notice in a letter dated in October 2012. Following the provision of all required notice and completion of all indicated development of the record, the originating agency readjudicated the claim in November 2012. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Therefore, the Board finds that VA has satisfied its duty to notify. The Board also finds the Veteran has been afforded adequate assistance in regard to the claims on appeal. VA obtained the Veteran's service treatment records (STRs) along with all other relevant medical treatment records identified by the Veteran. These records have been associated with the claims file. While the record shows that the Veteran was awarded Social Security Administration (SSA) disability compensation based on right knee disability, these records are not pertinent to the instant VA claims and, therefore, VA is not required to obtain this evidence. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009)(VA's duty to assist is limited to obtaining relevant SSA records and relevant records are "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim."). VA further afforded the Veteran appropriate VA medical examinations. It is noted that this case was previously before the Board and it was determined that additional development was necessary to include obtaining a VA medical opinion. The Board finds substantial compliance with the requirements articulated in the Board's prior remand decisions. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Neither the Veteran nor his attorney has identified, and the record does not otherwise indicate, the existence of any additional evidence that is necessary for a fair adjudication of the claims. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the Board will address the merits of the claims. II. Claims for Service Connection The Veteran seeks service connection for residuals of blunt head trauma to include TBI and psychiatric disability to include depression. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. A. General Legal Criteria Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that 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. In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, supra. B. Factual Background The Veteran served on active duty in the U.S. Navy from June 1978 to June 1982. STRs reflect no psychiatric complaints or abnormal findings. These records show no treatment for blunt head trauma. A report of service separation examination is not associated with these records. The Veteran filed an original application for VA compensation in April 1999. At that time, he did not claim blunt head injury or psychiatric disorder. In April 2002, the Veteran filed a claim for depression. He reported date of onset as July 1998. In May 2003, he filed a claim for residuals of blunt head trauma to include depression related to boxing in service. VA mental health initial evaluation dated in April 2002 reflects that the Veteran presented with complaints of depression; he stated "can't do it anymore...got knee injury [in] 1998 and surgery [in] 1998...depressed since 7/98. Fighting it...angry, sleep issues." The assessment was major depression without psychosis. A January 2002 VA mental health treatment plan, signed by Dr. L.L., assessed the Veteran with a "Depressive Disorder Not Otherwise Specified" and stated that this disorder was "parobably [sic] secondary to head injury with past boxing experience." In a May 2002, addendum to a mental health evaluation, Dr. L.L. noted that the Veteran "endorse[d] a history consistent with concussive head injury stating that in his twenties he worked as a sparring partner for another boxer" and that she "explained [to him] the possible connection of sequential concussive head injury and irritability, impulsivity, and depression later in life." In January 2003, Dr. L.L. diagnosed the Veteran with depressive disorder, not otherwise specified, which is probably secondary to head injury with past boxing experience. In April 2003, Dr. L.L. assessed "Depression NOS (Not Otherwise Specified) vs Affective Disorder Secondary to Medical Disease," and parenthetically noted, "past head injury, blunt trauma to the head." In a May 2003 statement in support of claim, the Veteran wrote that he was "filing a claim [for service connection] for residuals of blunt head trauma to include depression." He also submitted a letter to the RO stating that his depression should be service connected "[b]ased upon recent medical research to the effect that concussions or repeated blunt trauma to the head results in depression in later years." He reported that, while he was in the military, he boxed for several years on his ship's boxing team, he sparred with a member of the all-Navy boxing team, and he had been hit hard on several occasions. The Veteran also stated that "[i]t never occurred to me that my prior athletic activities caused my present depression. I never knew or accepted the fact that I was depressed." He reported that Dr. L.L. "explained to [him] that [his] knee surgery triggered [his] depression" but that his "depression was initially caused from blunt trauma to the head.... Trauma [he] did not realize [he] had suffered from boxing in the military." In a subsequent statement, the Veteran reported that "To the best of my recollection I was knocked out several times and knocked down several times while boxing in the military. I was sent to sick bay and checked out by the hospital corpsmen. No concussions were found." In a statement dated in July 2003, the Veteran indicated that the RO "will not find a diagnosis for blunt head trauma [and depression] while [I] was in the service because [I] never complained about this disability or any other disabilities [during] ... service." In February 2012, the Veteran underwent two VA examinations, one for TBI and one was for mental disorders. The claims file was reviewed. The physician acknowledged receipt of an affidavit in the mental disorder report. Report of TBI examination dated in February 2012 reflects history of head trauma in service. The Veteran denied symptoms of dizziness, vertigo, seizure, imbalance, incoordination, motor or sensory dysfunction, memory or cognitive impairment, neurobehavioral change, genitourinary disorder, hypersensitivity to light/sound, difficulty with speech/swallowing; and decreased sense of taste. He reported that headaches were unchanged since his childhood. He reported sleep disturbance due to his neighborhood. He reported mild fatigue related to depressed mood. It was noted that the Veteran was depressed but not on any medication or receiving any treatment; and that he was irritable due to paranoid ideation. The physician opined that these symptoms were unrelated to TBI. It was noted that cognitive testing in 2000 showed no organic factor and the Veteran was "able to concentrate when task is agreeable to him, high anxiety [was] related to paranoia, ego weakness, [he] distorts reality, borderline [sic] nadnarcissistic with aggressive traits." The physician indicated that the Veteran had completed a college degree in economics and had been in an electrical engineering program. Report of VA mental disorders examination reflects a diagnosis for major depressive disorder. The physician indicated that the Veteran did not have a diagnosed traumatic brain injury (not shown in records). By history, the Veteran first obtained mental health treatment-individual therapy-in 2002. He denied current treatment. The Veteran complained of depressed mood, anxiety, chronic sleep impairment, chronic hopelessness, and irritability. The physician opined that, based on the information reviewed and the examination, it was less likely than not that the Veteran's current depression was due to or the result of blunt head trauma, or aggravated by military service. The physician noted that "He reports blunt head trauma from boxing 6 months to one year in 1978 or 1980." But the physician explained that Veteran dates the onset of depression to August 1998 after his surgery to the right knee. In a February 2012 addendum to the TBI VA examination report, the physician reported that there was no sign of TBI in the military and no diagnosis of TBI in military records or VISTA medical records. The physician concluded that there was no diagnosis of TBI or residuals. In October 2012, the Board requested an addendum to the recent medical examinations and opinions. Specifically, the Board requested that the physician opine whether the Veteran's symptoms of depression, anxiety, irritability, and impulsivity were caused by or aggravated by his boxing activities in service (including being hit hard several times and being knocked out). In a November 2012 addendum to the February 2012 VA reports of examination, the physician opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury; or aggravated by the claimed in-service injury. His rationale was as follows: Documentation of impulsivity was neither found in records reviewed nor reported during his exam of February 8, 2012. Mr. [redacted] shared that his depression started around August of 1998 after surgery on his right knee. Documentation in his C-file is consistent with this report. Regarding his anxiety he could not recall when it started. There is no documentation of anxiety during service. Irritability he reports is related to frustration associated with everyday life. He also reports that he had no difficulties during service. None of the symptoms cited was documented in his service record. The records reviewed seemed consistent with Mr. [redacted] report of depression related to knee surgery. There is no documentation reviewed or information shared by the Veteran that posits or related his symptoms to boxing during service. Aggravation of his symptoms by boxing seems unlikely given that there were no symptoms documented in in-service records that were related to boxing. The physician reiterated that symptoms of TBI were not shown and further indicated that he reviewed the conflicting medical evidence but believed the medical evidence showed no symptoms related to TBI. C. Analysis Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for residuals of blunt trauma to the head to include TBI and for a psychiatric disorder to include depression. Symptoms attributable to head injury or TBI are not shown by the record, and the Veteran's diagnosed major depression disorder along with his other symptoms/complaints of anxiety, irritability, and impulsivity are not related to head trauma or boxing in service. As an initial matter, the Board observes that the Veteran has on several occasions denied symptoms attributable to head injury or TBI other than depression or psychiatric problems. Additionally, the medical evidence of record is negative for organic disorder of the brain or non-psychiatric symptoms attributable to head injury or boxing in service. Additionally, there is no credible evidence of a continuity of any symptoms since he boxed in service. In this regard, the Board notes that the Veteran reported on his VA compensation application and during VA examination in 2012 that his depression started around August 1998, more than 15 years after service discharge. Also, the Board observes that the Veteran reports inconsistently that he never sought out treatment in service for head trauma but then reports that he was seen after he was boxed unconscious-but noted that no concussion was found. Given the inconsistencies in his statements, and the fact that he reported an onset of symptoms long after discharge directly to health care providers, the Board must find that any suggestion he has made in support of his claim of experiencing a continuity of symptoms since service is not credible. Lastly, although the Veteran has been diagnosed with a major depressive disorder and he has reported symptoms of anxiety, poor sleep, irritability, and impulsivity, the more probative evidence of record shows that this disorder and the accompanying symptoms are not attributable to head injury, boxing, or any other incident of service. The Board accepts that the Veteran is competent to report his injuries, symptoms, and treatment. Layno supra. at 469; see also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). Here, however, having already found that there is no credible evidence of continuous symptoms since service, the Board finds that, as a lay person, he is not other competent to offer an linking his current diagnosed disorders to service. The Board has given particular attention to the medical opinions of Dr. L.L. However, the Board finds that these opinions have little probative value. In this regard, the Board recognizes that Dr. L.L. has stated alternatively that the Veteran's depressive disorder was probably or possibly related to his history of blunt head trauma in service (i.e. blows to the head during boxing). However, the examiner makes almost no reference to that fact that previous clinical records attributed his complaints of depression and other psychiatric symptoms to ongoing physical disabilities, including back and knee problems. The examiner also fails to reconcile her conclusion with the fact that the Veteran himself specifically dated the onset of his depression only after knee surgery in August 1998. The Board finds this omission particularly significant not only because this date of onset is consistent with earlier treatment records that attributed his depression to physical disabilities, but because the February 2012 VA examiner's opinion relied in large part upon the reported date of onset being so many years after separation from service. Dr. L.L.'s failure to more directly address these significant aspects of the record significantly diminishes the probative value of her opinions. The Board assigns greater probative value to the report of VA examination dated in February 2012 showing no symptoms attributable to head injury or boxing in service, and the negative VA medical opinion with the supporting rational provided in November 2012. As noted, this evidence was prepared by a skilled and neutral medical doctor, with consideration given to the Veteran's own reports as to his history, the favorable medical opinions of Dr. L.L., and the treatment records associated with the record. Contrary to Dr. L.L., the VA examiner opined that it was less likely not that the Veteran had TBI symptoms related to or aggravated by his boxing and head injury in service, or that any currently shown psychiatric symptoms were related to or aggravated by head injury in service. In reaching this conclusion, the VA examiner relied in large part on the statements of record by the Veteran as to the nature and date of onset of his own symptomatology, which the Board has found to be the most credible. Consequently, the Board concludes that the preponderance of the evidence in this case weighs against the claim of service connection. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of blunt head trauma to include traumatic brain injury is denied. Service connection for psychiatric disability claimed as depression is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs