Citation Nr: 1319149 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 05-33 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for a choroid cyst. 3. Entitlement to service connection for a syncope disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to September 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2006 the Veteran withdrew his request for a Board hearing. The Veteran's claims were remanded by the Board in April 2009, May 2011, and August 2012. Historically, by rating action in November 1975 service connection for a blackout disorder was denied on the basis that it pre-existed service. By rating action in September 1976 service connection for a blackout disorder was again denied on the basis that it pre-existed service with no evidence of any chronic disorder or injury in service which could have aggravated the pre-existing disorder. At an RO hearing in December 1976 the Veteran reported being struck in the head by a baton and being rendered unconscious. In May 1977, the Board denied the claim for entitlement to service connection for a neurological disorder described as blackouts. In January 2005, the Veteran filed a claim for service connection for blackouts as due to a head injury. By rating action in June 2005, service connection for tinnitus, a brain tumor, and a blackout disorder were denied. In the April 2009 decision, the Board determined that the claim of service connection for residuals of a head injury, including choroid cyst and blackouts was an original claim rather than an attempt to reopen a previously denied claim (citing Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008)), and remanded the issue for additional development. In this decision the Board has divided the Veteran's appeal into three separate appeals as shown on the cover sheet of this decision. The Board notes that each of these three issues is distinct and that separation of these issues results in greater clarity. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claims. FINDINGS OF FACT 1. The Veteran has no residuals of in-service head injury. 2. The Veteran's choroid cyst is not a disability and is unrelated to the Veteran's service. 3. The Veteran has a syncope disability that pre-existed service and that increased in severity during service. 4. The increase in severity of the syncope disability was not due to the natural progress of the disease. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a head injury have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for service connection for a choroid cyst have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for service connection for aggravation of a syncope disability have been met. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). In March 2005, prior to the June 2005 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claims, and the relative duties upon himself and VA in developing his claims. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board notes that the Veteran's service treatment records, service personnel records, and VA treatment records have been obtained. The Veteran has been provided VA medical examinations. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claim. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claims. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). II. Residuals of a Head Injury The Veteran submitted a claim for residuals of a head injury in January 2005. He asserted that he had a closed head injury in the Navy that resulted in black outs and a choroid cyst in his brain. The service treatment records do indicate that the Veteran was struck on the head during service. In October 1972 the Veteran reported to sick bay with minor contusions about the head and neck and complained of a sore shoulder resulting from a fight. In November 1972 he was treated for severe headaches. He reported striking his right temporal area approximately one month prior. In October 1973 he complained of headaches subsequent to being struck in the head with a liquor bottle the previous night. Examination revealed a 1/2 inch abrasion on the right side of his head. The service treatment records do not indicate that the Veteran experienced any chronic residuals of any of his head injuries and the July 1974 discharge examination report is silent to any residuals of a head injury. The Veteran was provided a VA examination in January 1976 due to his blackout spells. A brain scan was normal and skull films were normal. A February 1976 encephalogram was normal. VA testing in July 1976 revealed normal CT scan of the cerebral and cerebellar hemispheres. On VA psychiatric examination in December 2006 the Veteran reported that during service he was hit on the head with a club during a race riot. The examiner stated the Veteran had PTSD and possibly had a neurologic condition because of his "blow to the head." The Veteran was provided a VA traumatic brain injury examination in August 2009. The examiner reviewed the Veteran's service treatment records and noted the blows to the head in service. The examiner opined that the Veteran had no residuals of the mild traumatic brain injury during service. He opined that the Veteran's current symptoms were related to other medical conditions. In September 2009 the VA examiner again reviewed the Veteran's medical records and opined that the Veteran did not have any neurological disorder related to a head injury. The Veteran was provided another VA traumatic brain injury examination in November 2011. The examiner opined that the Veteran does not have any disability that can be attributed to in-service head injury. The examiner noted that the Veteran had a brain MRI/MRA in 2004 that showed no abnormality. The Board finds that the preponderance of the evidence clearly shows that the Veteran has no residuals of in-service head injury. 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, whether the Veteran has any current disability, such as a choroid cyst or syncope, due to in-service head trauma, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Consequently the Veteran's lay assertions that he has current residuals of an in-service head injury have no probative value. With regard to the December 2006 statement of the VA psychologist that the Veteran had a possible neurologic condition due to a head injury, the Board finds that the statement is speculative in nature. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Accordingly, as December 2006 statement of the VA psychologist is speculative it is entitled to no probative weight. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In this case VA physicians opined in August 2009 and November 2011 that the Veteran has no residuals of in-service head injury. There is no probative medical evidence to the contrary. As the Veteran has no current disability residual of a head injury, service connection for residuals of a head injury is not warranted. II. Choroid Cyst The Veteran asserts that he is entitled to service connection for a choroid cyst of the brain. As noted above, the Veteran's choroid cyst is unrelated to any in-service head trauma. The record does not indicate that the Veteran had a choroid cyst during service or for many years after service. The service treatment records are silent to any choroid cyst. A January 1976 brain scan and a July 1976 CT scan of the cerebral and cerebellar hemispheres did not reveal any choroid cyst. The post service VA medical records do not show any findings of a choroidal cyst until August 2003 when it was discovered on MRI. The August 2003 VA treatment record noted that the choroid fissure cyst appeared to be benign. In September 2009 the VA physician who performed the August 2009 VA traumatic brain injury examination of the Veteran stated that the choroid cyst was a benign finding, incidentally noted on MRI scan. He further noted that it was not associated with any pathology and not caused by trauma. The examiner noted that the Veteran had a brain MRI/MRA in February 2004 that showed no abnormality. The November 2011 VA examiner stated that the choroid cyst was an incidental finding. The Board notes that the record does not indicate that the Veteran has any symptoms resulting from the choroid cyst. It was noted to be an incidental finding that was not associated with any pathology. There is no indication that the choroid cyst resulted in any disability. The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation under those statutes, he must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, not only has the choroid cyst not been shown to cause any disability, but the preponderance of the evidence is also against finding that it is related to service, given its initial manifestation many years thereafter, and the absence of competent evidence relating it thereto. Under the circumstances, the Veteran has not met the regulatory requirements to establish service connection for a choroid cyst and service connection must be denied. III. Syncope As explained below, the Board finds that the Veteran's pre-existing syncope disability permanently increased in severity during service. The Veteran's service treatment records include an October 1969 induction examination report which includes a reported history of repeated syncope episodes. The Veteran indicated that he had then, or had had, dizziness or fainting spells, frequent or severe headache, and periods of unconsciousness. The examining physician summarized the Veteran's reports by noting mild headaches, dizzy in heat, and repeated syncope. Following examination, the physician noted syncope. Consequently, the Board finds that the Veteran's syncope disability was noted on examination for entry to service and thus pre-existed service. Service treatment records reveal that in March 1971 the Veteran reported passing out three times over the weekend. In October 1972 he reportedly passed out onboard ship. He reported slight vertigo and a history of passing out about seven times previously that year. A January 1974 treatment record note recommended that the Veteran receive follow up for problems passing out. The post service VA medical records show that the Veteran has continued to have a syncope disability. A VA hospitalization summary in January 1976 noted that the Veteran had complained about blackouts for several years beginning in 1970. He had been seen several times in service but the cause could not be determined. The Veteran believed that it had increased in frequency subsequent to his injury in service when he had been hit by a billy club during a riot. The examination revealed a normal head series. A July 1976 diagnostic impression was of encephalopathy of undetermined cause, manifested by recurrent syncope episodes since May 1971. An August 2003 VAMC ENT clinic report noted episodic dizziness, which occurred following head movement and other times while at rest. The Veteran reported episodes for 12 years, as well as a history of head trauma in the 1970s July 2004 VAMC records note that the Veteran was seen with contusion of the head and right chest after passing out. A history of multiple syncope episodes was noted. When examined by VA in August 2009, it was noted that the Veteran had had extensive workups for his syncope in the past, which had been unremarkable. The Examiner diagnosed mild traumatic brain injury with no residuals. The VA examiner again reviewed the Veteran's claims file and provided an addendum opinion in September 2009. He noted that the Veteran's blackout disability pre-existed military service. With regard to whether there was clear and unmistakable evidence that the syncope condition did not undergo an increase in severity during service, the examiner stated that there was not. On VA examination in November 2011, the Veteran reported that he had been having recurrent blackouts without any reason. The diagnosis was syncope of unknown cause (more probably due to Meniere's disease). Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). As noted above, the Veteran was noted to have syncope on examination for entry to service. Accordingly, the Veteran's syncope disability existed prior to service. Based on the service treatment records indicating many references to the Veteran blacking out during service, the Board finds that the Veteran's pre-existing syncope disability increased in severity during service. In this case there is no medical evidence stating that the Veteran's syncope disability did not increase in severity during service. Additionally, the record does not contain clear and unmistakable evidence indicating that the increase in severity was due to the natural progress of the disease. In fact, the September 2009 VA examiner specifically opined that there was no clear and unmistakable evidence indicating that the increase in severity was due to the natural progress of the disease. Accordingly, the Board finds that the Veteran's pre-existing syncope disability was aggravated by service and that service connection for a syncope disability is warranted. See 38 C.F.R. § 3.306. (CONTINUED ON NEXT PAGE.) ORDER Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for a choroid cyst is denied. Entitlement to service connection for a syncope disability is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs