Citation Nr: 1310265 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-41 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from November 1942 to January 1946. This appeal arose before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA), Regional Office (RO). In June 2011, the Veteran testified before the undersigned at a personal hearing conducted at the RO. A transcript of this hearing has been associated with the claims file. In October 2011 and December 2012, the Board remanded this case for additional evidentiary development. A review of the record indicates that the instructions contained in these remands have been substantially complied with and review of the case may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran does not have any residuals of a TBI that can be related to his period of service. CONCLUSION OF LAW The residuals of a TBI were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by development letters sent to the Veteran on February 5, 2009, November 20, 2009, October 25, 2011, and February 6, 2013. These letters advised the Veteran of the information necessary to substantiate his claim and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). It also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are not available due to a fire at the National Personnel Records Center. However, all available VA treatment records are in the file. The Veteran has not indicated that there are other records available that the RO has not obtained. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded a VA examination in December 2011. See 38 C.F.R. § 3.159(c)(4). The opinion in this case was rendered by a medical professional following a thorough examination and interview of the appellant and review of the claims file. The examiner obtained a history, to the extent possible from the Veteran and listened to the appellant's assertions. The examiner laid a factual foundation and reasoned basis for the conclusion that was reached. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Law and regulations 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) (2012). 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) (2012). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Factual background and analysis The Veteran has claimed that he suffers from the residuals of a head trauma sustained in service. He stated that this injury occurred when he was exposed to the concussive trauma of German bombs. As noted above, the Veteran's service treatment records were destroyed in the 1973 fire at the National Personnel Records Center. The limited personnel records in the claims folder showed that he served with the US Army Quatermaster unit in Europe from August 1944 to December 1945. His separation examination indicated that his unit had served in Belgium, the Rhineland, and Central Europe. He was a base maintenance man responsible for issuing clothing and equipment. In October 2008 and May 2011 statements, and in his June 2011 hearing before the undersigned, the Veteran had stated that he had been 50 to 100 feet away from bomb detonations. He reported that he had felt the concussive blast but was not otherwise injured by either shrapnel or debris. On his February 2010 Notice of Disagreement (NOD), the Veteran stated he was currently experiencing nausea, convulsions, seizures, an inability to awaken from sleep, dilation of the pupils, slurred speech, weakness and numbness of the extremities, loss of coordination, confusion, restlessness, and agitation. During his Board hearing, he testified only to experiencing mental distress that interfered with his sleep. He indicated that he had sought treatment for hearing loss and tinnitus, but not for any other symptoms. The Veteran's first post-service treatment record dates from August 1998, when he was seen by VA on an outpatient basis. These records did not note any complaints of or treatment for any of the symptoms noted in his various statements and hearing testimony. In March 2001, he was treated for insomnia related to stress experienced as an apartment complex manager. In June 2002, he was treated for neck and back complaints following a whiplash injury suffered two weeks earlier. A nurse practitioner noted in October 2008 that the Veteran possibly had mild cognitive loss, which could also have been the result of his hearing loss. Additional treatment records, dated from October 2008 to June 2012, have also been reviewed. Other than elevated PSA and issues with his hearing, he was in overall good health for an individual of 90 years of age. On June 22, 2010, he was treated for insomnia, but there were no other symptoms attributable to a head injury. In December 2011, the Veteran was examined by VA. The examiner noted that there were no service treatment records available, nor was there any prior TBI examination. The Veteran told the examiner that he had been "vibrated in his body each night during the Battle of Bulge in Belgium for 1-2 years." After many probing questions, the examiner determined that there had been no loss of consciousness longer than ten second and no loss of memory of more than a minute. The examiner stated that such report "implicates possible concussions in WWII. The Veteran indicated that he had been no closer than 200 to 300 feet from the explosions; he was vague as to whether there had been any personality or performance changes after the blasts. He denied ever having been knocked down by the concussive force. After the explosions, he felt an "unconscious pain" in his head, which he said started in combat (despite the fact that he had been behind the front lines). This seemed, to the examiner, like a panic attack, with prominent heart beat, sweating around the neck, and fear occurring up to three times per week. He would also awake three to four times per week and had nightmares three to four times per week. These caused trouble sleeping and resulted in a feeling of tiredness during the day. He displayed avoidant thoughts. The examiner could find no changes in cognitive functioning after the blasts. While the Veteran denied headaches, he stated that had had some dizziness since combat; these episodes occurred monthly and lasted for a few minutes. The examiner noted that dizziness and headaches were not documented. The examiner noted that the Veteran's statements about nausea and agitation noted in his statements (see above) were symptoms that the Veteran had copied from textbooks at the library. These symptoms were not part of his personal experience. However, the Veteran did state that his speech had been slurred since his discharge, which limited his communication with others. Objective testing of the Veteran showed moderate impairment of memory, attention, and concentration; occasional disorientation; occasionally impaired communication; normal consciousness; no subjective symptoms of any mental, physical, or neurological conditions or residuals attributable to TBI; and no scars. There were no headaches and the examiner could find no firm TBI residuals, except for hearing loss and tinnitus. Again, it was noted that the symptoms listed in the February 2010 correspondence had been taken directly from a textbook and did not apply to the Veteran; the examiner was not sure of the intention of writing this down, that is, whether it was a mistake or plagiarizing and making a false answer. The ultimate diagnosis was no TBI or any residuals related to a TBI. The examiner then gave the following opinion: This veteran's history of (possible, added by Dr. Matthews) traumatic brain injury is not caused by or a result of the veteran's military experience. I could not find evidence for a current traumatic brain injury condition. He may have had some concussions, but I cannot develop a reliable documented post WWII syndrome to qualify for a TBI. After a careful review of the evidence of record, the Board finds that service connection for the residuals of a TBI is not warranted. The Veteran's contention that he sustained possible head trauma resulting from the concussive force of bomb detonations is consistent with the rigors of his service during the Second World War; therefore, the evidence supports a finding the Veteran suffered from an in-service injury. However, there is no evidence that he suffers from a current disability related to this injury. There is no indication in any of the post-service treatment records, starting in 1998, of any treatment for any disorders that have been attributed to a head trauma. At one point, the Veteran had stated that he had suffered from nausea, convulsions, seizures, an inability to awaken from sleep, dilation of the pupils, slurred speech, weakness and numbness of the extremities, loss of coordination, confusion, restlessness, and agitation. The examiner, based on the Veteran's later admission, noted that these symptoms were taken directly from a textbook and were not actual symptoms experienced by the Veteran. This certainly calls the Veteran's credibility into question. Significantly, however, after an extensive evaluation of the Veteran and an exhaustive review of the available treatment records, the examiner in December 2011 was not able to find any residuals of a TBI. While it was agreed that he may have suffered a concussion, there was no evidence of any TBI condition as a result. Therefore, residuals of a TBI could not be diagnosed. Since there is no diagnosis of a current disability related to any in-service concussions, the Board cannot conclude that TBI residuals disorders are currently present. Because entitlement to service connection requires the presence of a current disability, the Board finds that service connection for TBI residuals has not been established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) (indicating that service connection presupposes a current diagnosis of the condition claimed). Significantly, other than the Veteran's statement, there is no evidence of record that supports the conclusion he has residuals resulting from a head trauma sustained in service. There is no competent opinion of record that has found that such residuals are currently present. The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or a diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). There is no indication in the record that the Veteran is competent to render a medical opinion as to the current existence of any TBI residuals. In this case, the Board has determined that the medical evidence is more probative of the issue, and that the medical evidence outweighs the lay statements. Accordingly, the Veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for the residuals of a TBI is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs