Citation Nr: 1317024 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 12-18 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for cerebrovascular accident (claimed as stroke). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from October 1948 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claim. The Veteran's claim was remanded by the Board for further development in January 2013. The requested development having been completed, the matter again is before the Board. Initially, the Board notes that in a January 2013 statement the Veteran's wife criticized the classification of the above issue, stating that the Veteran actually did experience a stroke and is not merely claiming to have experienced a stroke. In that regard, the Board notes that the term "cerebrovascular accident" is the medical definition for the common term "stroke." The Board recognizes that the Veteran suffered a stroke in October 1996, which is the basis of the current claim. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. 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 preponderance of the evidence is against finding that the Veteran's stroke or residuals thereof are etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A stroke and any residual disability were not incurred in service and are not otherwise related to service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 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 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 the evidence submitted by or on behalf of the Veteran. 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 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 law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in December 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence and information pertaining to the claim. He was also advised of the information and evidence that VA would attempt to obtain on his behalf. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The Veteran has also submitted private treatment records. The Veteran has at no time referenced any other outstanding records that he wanted VA to obtain. 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. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided a VA examination for his stroke in October 2010. The examiner considered the Veteran's claims; diagnosed status post left cerebrovascular accident with residual right homonomous hemianopsia, mild weakness, subjective right sensory impairment, cognitive impairment and imbalance; and opined that the condition was not related to the in-service shrapnel injury. Pursuant to the Board's January 2013 remand, in a March 2013 addendum the examiner provided multiple rationales for the above opinion. As will be discussed in greater detail below, the examiner's opinions were based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, and a physical examination. The Board, therefore, finds the VA examination report and addendum to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the March 2013 VA examination report addendum and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its January 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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) (2012). 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). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include organic diseases of the nervous system (such as stroke and residuals thereof), manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2012). In this case, the Veteran did not have his stroke until October 1996 or many decades after separation from service. As such, entitlement to service connection on a presumptive basis is not warranted. To establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims that a stroke he suffered in 1996 was related to multiple shrapnel wounds to the head that he incurred during service in Korea. The Veteran's service treatment records include no complaints, treatment, or diagnosis of stroke or residuals thereof. The evidence of record also does not document the shrapnel wounds to the head on which the Veteran's claim is premised. That said, in light of the Veteran's Purple Heart (as will be discussed in greater detail below) the Board will presume that the shrapnel injuries to the head occurred as claimed. However, the service treatment records document no complaints of residuals of the shrapnel injuries and, indeed, the Veteran's separation examination does not even note scars due to the shrapnel wounds. After service, there is no medical evidence or lay contention of ongoing symptoms that could be attributed to the post-service stroke. As noted above, in October 1996 the Veteran incurred multiple strokes. The Veteran was afforded a VA examination in October 2010. The examiner noted review of the claims file and medical records. The examiner discussed the Veteran's 1951 shrapnel injuries, including the bridge of the nose, frontal portion of the scalp, both forearms, and left leg. The injuries were the result of a grenade explosion, but the Veteran was uncertain whether he lost consciousness at the time or whether there were any residuals after the wounds healed. The Veteran also specifically denied a history of headaches, dizziness, or memory problems prior to 1996. The Veteran entered college after the service and could recall no difficulty in academics. Thereafter, he started his own business and remained successfully self-employed until 1996. In 1996, the Veteran suffered a stroke, with residual visual field loss, memory difficulty, and right hemi-body sensory impairment. The examiner diagnosed status post left cerebrovascular accident with residual right homonomous hemianopsia, mild weakness, subjective right sensory impairment, cognitive impairment and imbalance. As to etiology, the examiner concluded that the condition was not related to the in-service shrapnel injury. In support of his claim, the Veteran submitted general treatise evidence, including a February 2011 article from National Geographic that suggested that even small hits to the head may lead to brain deterioration over time. As the October 2010 examiner did not provide any rationale for the expressed conclusion, the Board remanded the claim in January 2013 for an addendum opinion. The resulting March 2013 addendum by the October 2010 examiner considered the treatise evidence, including the February 2011 National Geographic article, but noted that "chronic traumatic encephalopathy" was very different from the acute vascular event caused by sudden loss of blood to a portion of the brain that caused an artery blockage and the Veteran's 1996 stroke. The examiner discussed private medical records that included an October 1996 CT scan that was consistent with an ischemic cerebrovascular accident (CVA) due to a loss of blood supply and not due to a remote trauma to the forehead. Other contemporaneous records supported the October 1996 CT findings. The examiner concluded that, "the Veteran's case is consistent with him hav[ing] a stroke resulting from poor blood flow in a specific area of the brain resulting likely from a blood clot / blood vessel narrowing. There is no evidence that this CVA or interruption of the bl[o]od flow to the part of the brain was related to the shrapnel injury (superficial) of his scalp." The examiner advised that if there was a concern that the residuals resulting from his CVA were aggravated by his previous head injury, then he should undergo a full neuropsychological evaluation to see whether a diagnosis of chronic traumatic encephalopathy in addition to the CVA was warranted. That said, the examiner provided no indication that such a diagnosis was warranted and, indeed, concluded that the evidence of record showed exactly the opposite, noting that the Veteran "has not reported any symptoms or signs after the head injury in a time[,] course and pattern that would support the diagnosis of post traumatic encephalopathy." Moreover, neither the VA or private medical treatment records nor the assertions of the appellant have indicated that residuals of shrapnel wounds aggravated the stroke residuals. Thus, the Veteran has a current diagnosis of status post left cerebrovascular accident with residual right homonomous hemianopsia, mild weakness, subjective right sensory impairment, cognitive impairment and imbalance. As such, the critical question is whether any current residuals of the stroke were caused by or are otherwise related to the Veteran's claimed in-service injuries, to include his 1951 shrapnel wounds. Based on the evidence of record, the Board concludes they are not. In reaching that determination, the Board finds the October 2010 VA examination report and March 2013 addendum of significant probative value. The examiner's opinions were based on an interview of the Veteran, his reported medical history, and physical examination. Further, a complete and thorough rationale was provided for the opinions rendered. Specifically, the examiner concluded that the Veteran's stroke was the result of a loss of blood flow to the brain that was far from and unrelated to the superficial shrapnel injuries incurred by the Veteran in service in 1951. The examiner discussed the National Geographic article submitted by the Veteran and distinguished the type of disability discussed therein from the Veteran's stroke. The Board acknowledges that the March 2013 addendum recommended that the Veteran undergo testing if he remained concerned that his current problems were the result both of his stroke and chronic traumatic encephalopathy. The Board, however, does not find that this statement renders the opinion speculative in nature, as the examiner clearly indicated earlier in the addendum that there was no evidence to suggest that the Veteran had chronic traumatic encephalopathy. Cf. Jones v. Shinseki, 23 Vet. App. 382 (2010) (if an opinion cannot be reached without resorting to mere speculation, the examiner must provide a detailed explanation as to why this is so). The Board has considered the reports of the Veteran and his wife that his October 1996 stroke was the result of superficial shrapnel wounds to the head incurred in 1951. In that regard, individuals can attest to factual matters of which he or she has first-hand knowledge, such as shrapnel wounds to the face and head, and the Veteran's assertions in that regard are entitled to some probative weight. See Washington, 19 Vet. App. at 368. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a stroke incurred more than 40 years after the shrapnel injuries to which the stroke is attributed falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In light of the foregoing and the complexity of attributing a stroke to superficial shrapnel wounds incurred more than 40 years prior to the stroke (and particularly without reported continuity of problems that could be associated with the stroke), the Board affords significantly more weight to the conclusions of the October 2010 VA examiner, including the March 2013 addendum opinion, which were based on the examiner's complete review of the claims file, the Veteran's contentions, and physical examination. Finally, the Board has considered the treatise evidence provided by the Veteran in support of his claim. The Board notes that a medical, manual, article, or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In this case, the March 2013 VA addendum opinion clearly distinguished the type of disability discussed in the February 2011 National Geographic article and discussed how there was no evidence that such a disability was present in this case. The other evidence of record discusses similar mechanism of injury (repeated blows to the head while playing football) or findings that in recent combat deployments between 10 and 20 percent of military personnel sustain a concussion document, at best, only a possible relationship between head injury and subsequent health problems. As noted above, the only medical evidence of record in this case has specifically considered the Veteran's contentions and the evidence of record and concluded that it was less likely than not that the Veteran's stroke was caused by his in-service shrapnel injuries. Given the general nature of the treatise evidence when compared against the medical opinion rendered specific to the Veteran's claims and contentions, the Board places much more probative weight on the opinions of the VA examiner than on the treatise evidence of record. The Board has considered the January 2013 statement of the Veteran's wife that she noticed a high scar over his nose and between the eyes that also was a residual of his in-service shrapnel injury. She stated that this scar had not been pointed out to the examiner during the October 2010 VA examination. The Board notes that the March 2013 VA examination report addendum included a notation of review of the claims file, which would include review of the January 2013 statement. Thus, while the March 2013 addendum did not specifically address the scar, as the statement was contained in the claims file, the examiner reviewed the claims file, and the nature of the rationale discussed in the addendum would apply equally to the scar, the Board will presume that the March 2013 addendum opinion contemplated the scar above the nose and between the eyes. The Board also notes the question posed in the January 2013 statement of the Veteran's wife of, "'What was the Purple Heart' awarded for in Korea?" The Board observes that the specific basis for the award of the Purple Heart is not of record. The Veteran's service personnel records include multiple mentions of the in-service injury, including an August 1951 Administrative Remark noting that a Purple Heart had been awarded for wounds received as a result of enemy action in Korea in June 1951 and a June 1951 Report of Casualty to the Veteran's mother notifying her that he had been wounded in action in Korea. These records, however, do not detail the specific basis for the award. In light of the evidence of record, the Veteran's multiple shrapnel wounds appear to have been the basis of the award. That said, there is no credible evidence of record that the award was for an in-service stroke or any injury (other than the scars to the head) that could arguably be related to the Veteran's stroke suffered many years after service. In conclusion, the October 2010 VA examiner clearly reviewed the Veteran's medical history, interviewed the Veteran, and offered a detailed rationale for the opinion, to include the March 2013 addendum. The Board finds this the most probative evidence of record. The representations of the Veteran and his wife regarding any opinion as to the etiology of his stroke or its residuals are not competent evidence. The March 2013 addendum opinion distinguished the treatise evidence supplied by the Veteran in support of his claim and, to the extent the March 2013 addendum failed to mention any treatise evidence, such evidence is too general in nature to support the grant of entitlement to service connection. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. ORDER Entitlement to service connection for cerebrovascular accident is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs