Citation Nr: 1306537 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 10-38 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of head trauma, to include a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1969 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2012, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In October 2012, the Board received new evidence from the appellant. The Board notes that VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2012). In a written statement dated in October 2012, the appellant waived RO consideration of the new evidence. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. FINDING OF FACT The competent medical, and competent and credible lay, evidence of record demonstrates that the appellant has residuals of head trauma that are related to service. CONCLUSION OF LAW Residuals of a head trauma were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 claim. The appellant 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) The claim has been granted in full, as discussed below, as such, the Board finds that any defect related to VA's duties to notify and assist under the VCAA is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mlechick v. Mansfield, 503 F.3d 1340 (2007). II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997). Certain chronic disabilities, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. II. Analysis The appellant contends that he has residuals of head trauma due to being hit by a tree in Vietnam in 1970. For the reasons that follow, the Board finds that service connection is warranted. The appellant contends that he injured his head in service after being hit by a tree. Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A December 1970 service hospitalization discharge summary indicates that the appellant was hit by a tree and air evacuated from Vietnam. The record reflects that the appellant's chief complaint was pain in the lower back and the left hip. There are no references to a head injury in the appellant's available service treatment records. However, the claims file does not contain complete records from the appellant's hospitalization in October 1970. The service treatment records in the claims file reflect that the appellant was hospitalized for his hip from October 1970 to December 1970. At the October 2012 Board hearing, the appellant reported that he was treated at Ton Son Nhut Air Force Base, Andrews Air Force Base in Maryland, and Fort Devens, Massachusetts. (October 2012 Hearing Transcript (Tr.) at p. 7-8) He also reported that he was treated at a mental health clinic. (Tr. at p. 9) However, the only service record in the claims file regarding the incident is a narrative discharge summary. The next service treatment record is dated in January 1972 and reflects that he complained of mental problems, including memory problems. The appellant denied a history of head injuries in an April 1973 report of medical history and no head conditions or scars were noted in an April 1973 separation examination report. In a claim received in July 1978, only five years after service, the appellant claimed entitlement to service connection for a cut on the right side of the forehead. He stated that the cut occurred in October 1970. The appellant was afforded a VA examination in August 1982. The examiner noted that the appellant stated that he lost consciousness in 1970 while cutting down trees with a bulldozer. The examiner stated that: "From the record, there was a dislocation of the left hip and laceration of the right side of the head. The laceration was sutured and a plaster of Paris spica applied and was returned to the zone of the interior." On examination, the appellant had an asymptomatic scar on the right side of his head. In an August 1982 rating decision denying the claim for a laceration of the right side of the forehead, the RO stated that service treatment records "are silent as to any notation of a laceration on the head in any area." However, the August 1982 VA examiner's statement indicates that he viewed records indicating the appellant had a laceration on the right side of his head in service. Additionally, as discussed above, there are likely service treatment records from the appellant's in-service hospitalization that are missing from the claims file. As noted above, the appellant is competent to report symptoms capable of lay observation, such as a head injury in service. Pursuant to 38 U.S.C.A. § 1154(a), VA must consider the places, types, and circumstances of the appellant's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. Based on the above evidence, the Board finds the appellant's assertion that he had a head injury in service to be credible. The evidence of record reflects that the appellant has consistently reported having a head laceration in service. The appellant initially filed a claim for a laceration on the right side of the forehead in July 1978, only five years after service. The August 1982 VA examination report indicates the appellant had a scar on the right side of the head, which his consistent with the appellant's assertion. The VA examiner also stated that he viewed a record indicating the appellant had a dislocation of the left hip and laceration of the right side of the head. The December 1970 service treatment record reflects that the appellant was hospitalized in October 1970 after being hit by a tree and dislocating his left hip. As noted above, records of the appellant's hospitalization have not been associated with the claims file. The appellant's assertion that he injured his head when he was hit by the tree is consistent with the available evidence of record. Thus, the Board finds the appellant's assertion that he had a head injury in service to be credible. The appellant was provided with a VA examination in October 2009. The examiner stated that the appellant was knocked by a tree in Vietnam while driving, hit his head on the steering wheel, lost consciousness and woke up after an unknown length of time, slightly confused. The examiner stated that the appellant was sent to the military base, had stitches on his head, and was put in a body cast for 8 weeks. The examiner stated that old medical records from 1970 indicated the appellant had a laceration of the right side of the head and a left hip dislocation. The examiner found that the appellant had a mild traumatic brain injury during service caused by an accident. He opined that the appellant's dizziness was most likely caused by the mild traumatic brain injury. The examiner also stated that the appellant had a history of syncope which most likely was caused by dizziness. However, there was no syncope in the past 4 years. As discussed above, the Board finds the appellant's assertion that he injured his head in service to be credible. As the October 2009 examiner based his opinion on the fact that the appellant injured his head in service, the Board finds the opinion to be probative. As the examiner found that the appellant had dizziness that was most likely caused by an in-service mild traumatic brain injury, the opinion supports a finding that the appellant has residuals of a head injury that are related to service. The Board finds that a preponderance of the evidence supports the appellant's claim for service connection for residuals of a head injury. The December 1970 service treatment record reflects that the appellant was injured by a tree in service. In 1978, the appellant filed a claim for a laceration of the right forehead. The Board finds the appellant's assertion that he injured his head in service to be competent and credible. The October 2009 examiner found that the appellant had a mild traumatic brain injury caused by an accident during active duty. The examiner further found that the appellant had dizziness that was most likely caused by a mild traumatic brain injury. The examiner based his opinion on the appellant's competent and credible statements that he had an in-service head injury. Consequently, the Board finds the October 2009 opinion to be probative. As the opinion indicates there is a nexus between the appellant's current symptoms and his in-service head injury, the Board finds that the evidence supports a finding that the appellant has residuals of an in-service head trauma. Giving the appellant the benefit of the doubt, the Board finds service connection for residuals of a head trauma is warranted. ORDER Entitlement to service connection for residuals of a head trauma is granted. _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs