Citation Nr: 1321862 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 08-00 494 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals of a concussion injury, manifested by balance problems and nausea. 2. Entitlement to service connection for residuals of a concussion injury, manifested by headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which was issued by the RO in Chicago, Illinois, later that month. The Veteran testified at a hearing before the Board in January 2011. The Board remanded the Veteran's claim for additional development in May 2011. FINDINGS OF FACT 1. The Veteran does not have residuals of a concussion injury, manifested by balance problems and nausea, attributable to active duty service. 2. The Veteran has residuals of a concussion injury, manifested by headaches, that are at least as likely as not related to active duty service. CONCLUSIONS OF LAW 1. The Veteran does not have residuals of a concussion injury, manifested by balance problems and nausea, that are the result of disease or injury incurred in or aggravated during active service and may not be presumed to be. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran has residuals of a concussion injury, manifested by headaches, that are the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in February 2007 and May 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the September 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the service connection claims. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's service treatment records (STRs) do not include any reference to treatment for a concussion or any residuals thereof. Clinical evaluation of the Veteran's ears was normal at the Veteran's May 1968 separation examination. The Veteran reported ear, nose, or throat trouble on a May 1968 report of medical history form prepared in conjunction with the separation examination. No further information was provided. Private treatment reports from Lourdes Hospital dated in September 1979 reflect that the Veteran reported an explosion to the left ear during the Vietnam War which resulted in a large perforation with resulting invagination of squamous epithelium and granulation tissue. He was assessed with left chronic otitis media with large conductive hearing loss. He thereafter underwent a left type III tympanoplasty. At a November 1999 VA examination, the Veteran reported that he was standing next to a muzzle blast in Vietnam in 1967 and his left ear drum was perforated. He also reported a second blast that ruptured his left ear drum. Following a physical examination, the Veteran was assessed with a history of perforation times two of the left tympanic membrane, history of reconstruction of the inner ear, and surgical scar behind the left ear. Private treatment reports from Massac Memorial Hospital reflect that the Veteran underwent a computed tomography of the head for a clinical history of headaches, dizziness, and neck pain in May 2001. No evidence of intracranial abnormality was noted. Private treatment reports from Memorial Hospital of Carbondale in September 2003 reflect that the Veteran underwent several surgical procedures for a diagnosis of neck pain, possible radiculopathy, and suboccipital headaches secondary to cervical spondylosis. VA treatment reports reflect that the Veteran underwent a computed tomography (CT) scan of the head for a report of episodes of headaches in October 2008. The CT scan revealed cerebral and cerebellar atrophy. At a February 2010 VA examination, the Veteran reported a vague feeling of dizziness manifested by light-headedness and some sense of subjective rotation for fifteen years sometimes associated with nausea and imbalance. The Veteran reported a history of exposure to a grenade explosion. He indicated that he sustained a concussion, serious damage to his left ear, hearing loss, and tinnitus. Following a physical examination, the Veteran was diagnosed with dizziness with a sense of disturbance of balance, episodic, most consistent with a diagnosis of benign paroxysmal positional vertigo. At a January 2011 hearing before the Board, the Veteran testified that while serving in Vietnam in 1967, he was twenty feet from an explosion that resulted in a concussion injury. He indicated that he lost consciousness for a few minutes and was disoriented for a period of time after regaining consciousness. He reported that blood was coming out of his ears and he began experiencing headaches soon after the injury. The Veteran testified that his headaches have increased in severity over the years. He stated that he began experiencing dizziness (claimed as balance problems) twelve to fifteen years prior to the hearing and soon after that he developed nausea. The Veteran's representative clarified that the issues the Veteran was claiming are those listed on the cover page of this decision. At a July 2011 VA examination, the examiner reviewed the Veteran's claims file and relevant medical history. The Veteran reported a concussion injury during service in 1967. He indicated that he was knocked down and sustained unconsciousness for minutes and a perforation of the left ear. He underwent a left tympanomastoidectomy in 1979 and reported a history of intermittent headaches since the initial injury in service. He also reported intermittent dizziness two to three times a week lasting up to fifteen minutes often related to postural changes. The Veteran indicated that the dizziness began twelve to fifteen years prior. Physical examination of the ear, nose, and throat revealed a normal right eardrum and a scarred, intact left eardrum. There was no evidence of perforation or chronic infection. The examiner diagnosed the Veteran with headaches and left otalgia beginning in 1967 related to a concussion sustained during the Vietnam conflict, intermittent dizziness, and vertigo with occasional associated nausea for the past twelve to fifteen years. The examiner opined that it is at least as likely as not that the Veteran's headaches and left otalgia are related to his concussion in service. The examiner based this conclusion on a fairly consistent history on the part of the Veteran. The examiner concluded that since the Veteran's vertigo, nausea, and dizziness did not start until twelve to fifteen years ago, approximately twenty five years after his initial injury, that it is at least as likely as not that his dizziness, nausea, and vertigo are not related to his injury or ear surgery. The examiner noted that vertigo, dizziness, and nausea are most likely diagnosed under the heading of postural vertigo. A. Residuals of a Concussion Manifested by Balance Problems and Nausea In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for residuals of a concussion manifested by balance problems and nausea. The Board acknowledges that the Veteran is competent to report that he developed dizziness, balance problems, and nausea after service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). It is within the Veteran's realm of personal knowledge when he first developed trouble with balance and nausea. Consequently, the Board finds that the Veteran's reports that he developed dizziness, balance problems, and nausea after service are credible. However, the Veteran's opinion that these problems are related to service is insufficient to provide the requisite etiology of the claimed balance trouble and nausea because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding his claimed balance problems and nausea being related to his active service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The February 2010 VA examiner diagnosed the Veteran with dizziness with a sense of disturbance of balance, episodic, most consistent with a diagnosis of benign paroxysmal positional vertigo. The July 2011 VA examiner found that it was less likely than not that the Veteran's vertigo, dizziness, and nausea were related to active duty service, including the ear injury in service. The examiner included a rationale for the opinion and concluded that the Veteran's vertigo, dizziness, and nausea were most likely due to postural vertigo. That opinion is more probative as to the etiology of the Veteran's currently claimed residuals of a concussion, manifested by balance problems and nausea, as the examiner reviewed the entire claims file, cited to relevant medical evidence, and provided a rationale to support the opinion. Furthermore, the examiner has the appropriate training and expertise to render an opinion. Additionally, the Veteran has not submitted any competent evidence which provides a basis for the conclusion that any organic disease of the nervous system manifested within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Consequently, the Board finds that service connection is not warranted because a preponderance of the competent evidence of record is against a finding that balance problems and nausea are etiologically linked to the Veteran's active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for residuals of a concussion, manifested by dizziness and nausea, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Residuals of a Concussion Manifested by Headaches In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for residuals of a concussion, manifested by headaches. The Veteran's statements in support of his claim are construed as alleging the presence of current disability manifested by headaches and a nexus between inservice trauma and the current disability. The Board finds that he is competent to give evidence about what he experienced. For example, he is competent to discuss his current symptoms of headaches. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Board notes that the July 2011 VA examiner opined that it is at least as likely as not that the Veteran's headaches are related to his concussion in service. The examiner addressed the credibility of the Veteran's contentions of headaches since service and provided a rationale for the conclusion. Consequently, the only probative medical opinion of record includes a positive nexus between the currently diagnosed headaches and the alleged in-service concussive injury. The Veteran is competent to testify to exposure to a concussive injury in service and his symptoms of headaches since service. Resolving all reasonable doubt in the Veteran's favor, the competent and credible evidence creates a nexus between the Veteran's current residuals of a concussion, manifested by headaches, and active service. Therefore, service connection for headaches is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for residuals of a concussion injury, manifested by balance problems and nausea, is denied. Entitlement to service connection for residuals of a concussion injury, manifested by headaches, is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs