Citation Nr: 1313077 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 09-14 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for residuals of a head injury, to include normal pressure hydrocephalus (NPH), other than service-connected traumatic arthritis, cervical spine, to include as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to March 1969. The Veteran had a period of verified reserve service in June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. The Veteran incurred head injuries during periods of active service in 1967 and 1976. 2. The Veteran is presumed to have been exposed to herbicides in service. 3. A diagnosis of normal pressure hydrocephalus was assigned in 2006. 4. The preponderance of the medical evidence establishes that it is less than likely that the Veteran's head injuries or exposure to herbicides in service caused or resulted in NPH. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury, to include normal pressure hydrocephalus, other than service-connected traumatic arthritis, cervical spine, to include as due to exposure to herbicides, are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran 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 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in January 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letters accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in February 2008. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. As for the duty to assist, the Veteran's service treatment records have been obtained. However, it appears that the service treatment records are incomplete. Efforts to obtain separately-filed hospital records have been unsuccessful. Private clinical records, VA clinical records, and records from the Social Security Administration (SSA) have been associated with the claims files. Private clinical records dated from 1995 and from 2001 through the present, including reports of magnetic resonance imaging (MRI) of the brain and spine conducted in 2006, are associated with the record. VA clinical records through 2012 are available in electronic form. As such, pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement 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. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, as directed by the Board in June 2012, an opinion from a specialist with the Veterans Health Administration (VHA) was provided in July 2012, with an addendum opinion provided in November 2012, so as to ascertain whether the Veteran's NPH is etiologically-related to his period of service, to include exposure to herbicides. To that end, when VA undertakes to provide an opinion, it must ensure that the report is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VHA opinion is adequate, as the examiner included a thorough review of the file and provided findings relevant to the issue at hand. The Veteran's complaints and lay history were also considered and discussed, to include his accounts of in-service accidents in 1967 and 1976, as was prior medical evidence of record. A complex rationale was provided with the opinion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service connection The Veteran claims that he suffers from NPH, and that this disorder is related to head injuries suffered during active service, to include exposure to herbicides. To that end, the Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). A Veteran who, during active military, naval or air service, served in Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Here, the Veteran's DD-214 makes it clear that the Veteran served almost one year in Vietnam. Therefore, the Veteran is presumed to have been exposed to herbicides during his military service. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). Diseases associated with herbicide exposure for purposes of the presumption do not include normal pressure hydrocephalus. 38 C.F.R. § 3.309(e). Therefore, presumptive service connection based on exposure to herbicides is not warranted in this instance. With regard to direct service connection, the Board must determine whether the claimed disorder is the type of injury or disease for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record, including evidence such as any in-service record documenting the injury or disease. At the outset, the Board notes that the evidence of record does contain a diagnosis of NPH. Thus, element (1) of Hickson has been satisfied, as a current diagnosis is of record. Turning to the Veteran's period of active service, service treatment records indicate that he was involved in a motor vehicle accident in December 1967. The Veteran was thrown from the car, and sustained a fracture of the transverse process of C5. The Veteran was not rendered unconscious. Numerous small abrasions were noted on the face, forehead, and scalp. Neurological testing was normal. The Veteran was placed on profile until April 1968. A Line of Duty investigation indicated that the Veteran was diagnosed with a dislocated cervical vertebrae. On separation in March 1969, the Veteran's head, face, neck, and scalp were normal, and the Veteran denied any history of a head injury. Turning to post-service medical evidence, the Veteran reported, at the time of a VA examination conducted in 1972, that he was hospitalized for one month during service. A physical profile record reflects that the Veteran initially returned to limited duty, and that he was to report for further evaluation in April 1968. At the time of the May 1972 VA examination, the Veteran was found to have traumatic arthritis of the cervical spine. Service connection was granted for that disability. In June 1976, during a period of required reserve service annual training, the Veteran fell from a top bunk and struck his head. He was hospitalized to rule out a basal skull fracture. A June 1976 admission note reflects that the Veteran lost consciousness, but does not indicate how long the Veteran remained unconscious. The Veteran also had bleeding from the left ear. No neurologic changes were detected during the admission. The only report of radiologic examination of the Veteran's skull available from that 1976 admission states that no abnormality was found. The Veteran was hospitalized from June 25, 1976, to June 28, 1976. A copy of a note written for the Veteran's employer stated that the Veteran could return to work on June 30, 1976. In August 2004, the Veteran reported nosebleeds and a staggering gait. No etiology for these complaints was identified. In September 2005, the Veteran reported exertional edema and left upper extremity pain. There was no cranial, sensory, or motor nerve deficit. Possible carpal tunnel syndrome, left upper extremity, was suspected. The treatment records reflect that the Veteran reported neck pain several times. In 2006, the Veteran reported problems with balance. In October 2006, a magnetic resonance image (MRI) of the brain disclosed ventriculomegaly. The report reflects that the examination was interpreted as showing communicating hydrocephalus. A diagnosis of NPH was identified. A shunt was inserted, but the Veteran's imbalance returned. The private provider who evaluated the Veteran in February 2007 opined that the Veteran had a progressive atrophic process causing ataxia and ventricular enlargement, of unclear etiology. The provider opined that the disorder might be "somehow" related to exposures in service, either the exposures to herbicides or a basilar skull fracture. In April 2007, another private provider opined that the Veteran's symptoms were "maybe" of delayed onset related to his service. In July 2007, in response to a question asking if the Veteran's normal pressure hydrocephalus was more likely than not caused or aggravated by the Veteran's head injury in service, the provider responded that it was possible, and suggested expert evaluation. The Veteran was afforded VA examinations to determine the etiology of his NPH in 2008 and in 2010. Unfortunately, the examination reports included inaccurate factual statements. The examiner who conducted January 2008 VA examination stated that the Veteran suffered a basilar skull fracture in 1976 in service. The examiner also noted that the Veteran was hospitalized in service for about three months for traction for dislocated cervical vertebra, without discussing the notations that there was a fracture of the C5 transverse process. The examiner concluded that it was less likely than not that the Veteran's current NPH was due to a head injury in service. The examiner explained that medical literature does show that NPH can develop after stroke, head injury, or any disorder that causes bleeding around the brain. However, due to the length of time that passed after the Veteran's in-service head injuries until the 2006 diagnosis of NPH, the examiner opined, that it was less than likely that the head injury in service had anything to do with the development of NPH. The examiner further opined that the cause of NPH was unknown in most cases, and the etiology of NPH in this case would, as with most cases, likely remain unknown. In July 2008, the Veteran's private provider issued a medical statement which noted that the Veteran had a history of basal skull fracture and herbicidal exposure in service. The provider opined that "it is felt more likely than not that his military history is contributory to his current medical problems of hydrocephalus and ataxia." The examiner who conducted March 2010 VA examination noted review of the July 2008 opinion, among other records. The examiner concluded that it was less than likely that the Veteran's current disorder was due to a claimed basilar skull fracture in service, because the basilar skull fracture was not confirmed, there was no current evidence of occurrence of such a fracture, and it was not likely that the head injury in service was of a severity as to cause the current disorder, since the Veteran did not claim disability due to the head fracture proximate to his service discharge. An October 2010 treatment note from his private provider stated, "[c]ertainly, the description of fall, three-day hospitalization for head injury could have resulted in delayed development of hydrocephalus. Not to mention, he was also exposed to the known neurotoxin Agent Orange." Following a June 2012 Board request, a VHA specialist provided an opinion in July 2012 which discussed the Veteran's two instances of head trauma in service. The specialist noted that there was a fracture of the C5 transverse process, then treatment for a dislocated vertebra, in 1967. The specialist was advised that service connection had been granted for arthritis of the cervical spine present in 1972, and was advised that the Veteran must be presumed to have been exposed to herbicides. The specialist discussed service treatment records relevant to a fall in 1976, including lack of radiologic confirmation of a basilar skull fracture, but with a notation that there was blood behind the left tympanic membrane. The specialist stated that this finding was diagnostic of a basilar skull fracture. The specialist also discussed the findings of enlargement of the ventricles in 2006, with placement of a ventriculoperitoneal shunt in late 2006. The specialist concluded that, as the Veteran did not display residual cognitive defects following head injuries in service, it was unlikely that the current neurodegenerative disorder, diagnosed as NPH following complaints noted many years after the Veteran's service discharge, was the result of head trauma in service or exposure to herbicides. In November 2012, the Board requested clarification as to the July 2012 opinion, so as to determine whether it was at least as likely as not that an incident during the Veteran's periods of active service, to include head trauma in 1967 and 1976, or his presumed herbicide exposure, permanently increased the severity of, or accelerated the onset of, NPH. That same month, an addendum opinion was provided. The specialist indicated that it was less than likely that the Veteran's service-related head trauma, and presumed exposure to herbicides, permanently aggravated the severity of, or accelerated the onset of, the current NPH diagnosis. As to the lay evidence of record, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Acknowledgement is given to the Veteran's assertions that his NPH is linked to accidents during his period of active duty, or to herbicide exposure. In that regard, he is deemed competent to report symptoms such as imbalance and altered gait. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide an opinion as to the cause of hydrocephalus, as this is not a disorder with an onset visible to a lay person. See Jandreau. Laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. Id. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. The Veteran is competent to state when he noted onset of his current symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (layperson is competent to provide information regarding visible, or otherwise observable, symptoms of disability). The SSA records and the Veteran's credible statements of record establish that he did not note symptoms (which have been attributed to the diagnosed NPH) until 2004, with severity increasing in 2005 and 2006. Regarding the conflicting medical opinions of record, in February 2007, the Veteran's provider stated that the Veteran's NPH was of unclear etiology, but might "somehow" be related to head traumas or exposure to herbicides or a basilar skull fracture. In April 2007, the same provider opined that "maybe" the Veteran's symptoms were of delayed onset related to his service. The Board notes, however, that these opinions are wholly speculative in nature, and far from conclusive. Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding doctor's statement that brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (noting that use of the phrase "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little probative value when a physician makes equivocal findings that a relationship between service and the claimed disorder "may" be presented). In July 2008, the same provider stated that it is was "more likely than not" that the Veteran's military service "was contributory" to his current medical problems of hydrocephalus and ataxia. The provider's 2008 opinion was followed by a 2010 statement that the Veteran's head traumas in service "could have" resulted in delayed development of hydrocephalus. Because the provider rendered speculative opinions before and after he rendered the July 2008 opinion, without explanation, the 2008 opinion that it was "more likely than not" that the Veteran's military service "was contributory" is of little probative or persuasive value. In context, the provider has not explained why his 2008 opinion should be interpreted as more definitive or less speculative than his other opinions. The January 2008 and March 2010 VA opinions are both unfavorable to the Veteran's claim, since both examiners rendered opinions that the Veteran's current neurological disorder, for which a diagnosis of NPH had been assigned, was not related to the incidents of service discussed by the examiners. However, since the examiner who provided the 2010 opinion did not discuss the Veteran's 1967 head trauma, that opinion is not complete and is not an adequate factual basis for adjudication of the claim. Similarly, since additional opinions of the Veteran's private provider were added to the claims file after the 2008 VA opinion was rendered, that opinion is not based on all the evidence of record. In contrast, the VHA specialist discussed each incident of documented head trauma that the Veteran is known to have incurred in service, and discussed the Veteran's presumed exposure to herbicides in July and November 2012. The specialist concluded that the cause of the Veteran's communicating hydrocephalus, for which a diagnosis of NPH was assigned, was not clear. The specialist specifically noted that the Veteran's hydrocephalus could be congenital or incurred in early life. The specialist concluded that, since the Veteran's communicating hydrocephalus could be congenital or incurred in early life, it was therefore, very unlikely that NPH was incurred, had its onset during, or was a result of, the Veteran's service, head injuries, or exposure to herbicides. In November 2012, the reviewer specifically stated that it was less than likely that the Veteran's communicating hydrocephalus was aggravated in service. The reviewer further noted in July 2012 that the cause of the Veteran's progressive gait disturbance and basal ganglia abnormalities was not known, but that no currently-diagnosed neurodegenerative disorder was associated with either head trauma or exposure to herbicides. The reviewer's final statement, that the Veteran clearly has had two head injuries with concussions that did not result in residuals cognitive deficits, despite a fracture of the C5 transverse process and a left basilar skull fracture, is entirely consistent with the record. In sum, the most probative evidence of record does not establish that the Veteran's currently-diagnosed NPH had its onset in service, to include as a result of exposure to herbicides. Instead, the most probative evidence of record indicates that it is less likely than not that NPH is related to in-service head injuries, or otherwise related to his period of active duty. The Board has fully considered the lay statements of record, and does not doubt that the Veteran suffers from NPH symptomatology. Nor does the Board doubt the severity of the Veteran's in-service accidents, or his presumed exposure to herbicides. However, and as explained above, the most probative evidence of record does not indicate that his diagnosed NPH is related to any period of military service, to include herbicide exposure. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board concludes that the unfavorable July and November 2012 opinions are of greater weight than the favorable July 2008 opinion, and that these opinions outweigh the favorable evidence of record based on their detailed recitation of the facts of the case, their complex medical analyses, and the rationale offered in support of those conclusions. The preponderance of the evidence is therefore against the claim. The Veteran's claim for service connection for residuals of a head injury, excluding service-connected traumatic arthritis, cervical spine, to include normal pressure hydrocephalus, is denied. ORDER Entitlement to service connection for residuals of a head injury, to include normal pressure hydrocephalus (NPH), other than service-connected traumatic arthritis, cervical spine, to include as a result of exposure to herbicides, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs