Citation Nr: 1311077 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 08-04 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to February 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, found that new and material evidence had not been submitted to reopen entitlement to service connection for residuals of a head injury. The appeal was previously before the Board in February 2011, November 2011, and August 2012 at which time it was remanded for additional evidentiary development. The Board also reopened the claim for service connection for residuals of a head injury in November 2011. The case has now returned to the Board for further appellate 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). FINDING OF FACT The Veteran does not have any residuals of a head injury. CONCLUSION OF LAW Residuals of a head injury were not incurred or aggravated during active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 U.S.C.A. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for residuals of a head injury as symptoms associated with a pre-existing head trauma were aggravated during his period of active service. In statements dated throughout the claims period, the Veteran reported that he incurred a head injury prior to his enlistment into military service and he experienced worsening head pains during boot camp that led to an early medical discharge. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). After review of the record, the Board finds that the presence of current disability is not demonstrated, i.e. the Veteran does not have any current residuals of a head injury. Both service and post-service medical records do not contain objective evidence of post-head injury residuals, and the claims file contains a competent medical opinion weighing against the claim. In addition, the Board concludes that the Veteran is not competent to attribute the symptoms that he experiences to a specific diagnosis such as head trauma. The Veteran has consistently reported that he incurred an injury to his head as a teenager prior to his enlistment with the military. In June 2007 and February 2008 statements he also reported experiencing severe head pains during basic training due to the cold weather and physical exertion. According to the Veteran, he was discharged after one month of active duty due to an aggravation of residuals of his previous head injury. Service treatment and personnel records are negative for evidence of complaints or treatment related to head trauma, including headaches. The post-service treatment records also do not establish current findings associated with past head trauma. The Veteran began treatment at the Gainesville VA Medical Center (VAMC) in August 2000 with complaints of chronic pain and psychiatric issues diagnosed as an adjustment disorder with antisocial traits. From that time to the present, he has consistently reported a past history of head injury, but has not specifically reported any current symptoms attributable to the remote traumatic event. He has received treatment for headaches, but VA physicians have universally associated this symptom with a cervical fusion due to a motor vehicle accident in 1997. There are also no current findings of a cognitive deficit in the treatment records. A January 2007 psychiatric examiner from the Social Security Administration (SSA) concluded that the Veteran had no cognitive impairment and the January 2012 VA examination for residuals of a traumatic brain injury (TBI) was completely normal. Although a VA psychiatrist noted in July 2007 that the Veteran's probable cluster B personality could be, at least in part, due to a head injury that he incurred as a child, this finding is clearly speculative. It is considered "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). No other health care provider has indicated that the Veteran's psychological problems are manifestations of head injury residuals and the Veteran has not reported that he experienced psychiatric problems during service as a manifestation of his head trauma. The record also contains a competent and probative medical opinion weighing against the claim for service connection. The Veteran was examined by VA in January 2012 and the examination was completely negative for evidence of residuals from a TBI. In a September 2012 addendum opinion, the examiner specifically found that the Veteran had no residuals of a TBI and noted that VAMC records were negative for complaints of blackouts or syncope. The examiner also reiterated that the Veteran's current and past headaches were related to medication and cervical condition. The Veteran is competent to report that he incurred a head injury prior to active duty service, but to be present as a current disability, the claimed condition must be shown at some point during the claims period. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (a finding that the veteran had a claimed disability "at some point during the processing of his claim," satisfied the service connection requirement for manifestation of current disability). The objective evidence of record, including the medical opinion of the January 2012 VA examiner and the contents of the VAMC treatment records, establishes that the Veteran does not have any residuals of a head injury that occurred when he was a teenager, more than 40 years ago. The Board has considered the Veteran's contentions in this case and the contents of a June 2007 lay statement submitted by a friend of the Veteran describing the Veteran's problems with headaches and memory loss. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the Board finds that lay testimony is not competent to relate the reported symptoms, such as headaches and memory problems, to a specific etiology. The Veteran is competent to identify and explain the symptoms that he observes and experiences, but the disability on appeal requires more than the simple observation of symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Residuals of a head injury can affect multiple systems of the body, manifest symptoms similar to many other disabilities, and clearly require specialized medical training and expertise to properly identify. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran lacks the medical expertise to relate his headaches and memory loss to past head trauma, and in any event, the lay statements of record are outweighed by the medical evidence which relates these symptoms to cervical and psychiatric disabilities. The evidence is therefore against a finding of any current residuals of head trauma. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a May 2007 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the May 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and records from the SSA. Additionally, the Veteran was provided a proper VA examination in January 2012 with an addendum medical opinion in September 2012. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for residuals of a head injury is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs