Citation Nr: 1322127 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 12-32 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for residuals of a head injury. ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran had active military service from December 1944 through August 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The case was remanded in April 2013 to afford the Veteran a VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). FINDINGS OF FACT The Veteran has not had disabling residuals of a head injury, to include traumatic brain injury (TBI), at any time since filing his claim. CONCLUSION OF LAW The Veteran does not have residuals of a head injury that were incurred or aggravated in 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 FINDING AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this matter, substantially compliant notice was sent to the Veteran in August 2011. Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and also secured an examination in furtherance of his claim. A pertinent VA examination was obtained in May 2013. 38 C.F.R. § 3.159(c)(4). The VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered an opinion based on consideration of the record, including the Veteran's statements. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. I. Legal Criteria 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be granted for any injury or disease diagnosed after service, 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). Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Factual Background The Veteran asserts that in 1945 or 1946, he received a concussion after an accident with a drill press shaft while stationed at the Catalina Naval Base Shop on Saipan, Mariana Islands. He stated that he was sent to the infirmary and "properly attended to" and then able to return to his duties without any serious effects. See, e.g., Veteran's May 2011 Claim; see also Veteran's August 2011 Statement. The Veteran's STRs are devoid of documentation of the in-service drill press shaft accident in which the Veteran claims that he became concussed. The Veteran's STRs also do not include any denotation of any in-service head trauma or residuals from head trauma. See Veteran's STRs. The report of a physical examination conducted for the purpose of the Veteran's discharge from service in August 1946 shows that the only history of illness or injury that was noted was of having the "usual childhood diseases." His head and face were described as normal. On examination of his eyes, his pupils were normal in size, and reaction to light and distance. His skin and hair were also described as normal. The Veteran received a private neurological examination in January 2009. The physician, Dr. A. K., reported that the Veteran received a previous neurological examination in 2008 and that "the tremor was felt to be related to medications." See Dr. A. K. January 2009 Letter. Dr. A. K. specifically noted in the Veteran's examination report that the he had "no head trauma." The Dr. A. K.'s medical impression was that the Veteran had "comment disorder, late-onset, rule out accentuated essential familial tremor, rule out thyroid disturbances, rule out basal pathology, ischemic; persistent lumbar pain, lower extremity pain, dysesthesia, neurogenic COPD, bronchial asthma." Dr. A. K. also noted that the Veteran's brother has a positive history of tremor disorder. The Dr. A. K. ordered an EEG and a MRI scan of the brain. The Veteran's EEG was normal and without evidence of epiletiform discharges; the January 2009 MRI brain scan, revealed "mild T2 and flair signal hyperintensity within the periventricular white matter consistent with mild chronic microvascular change." See Dr. A. K. Medical Records. In an August 2011 statement, the Veteran stated that when he was in his 50s, his legs began to falter; at the age 63, tremors and loss of balance began occurring forcing him to retire. In a June 2012 statement, the Veteran asserted that his delayed onset of his disability is similar to cases in which athletes suffer concussions and develop effects in later years. The Veteran has presented articles discussing long term effects of concussions, one article noting that a study of former NFL players found that dementia is six times higher in players over age 50 than in the general population. See Veteran's Notice of Disagreement; see also Articles Submitted by the Veteran in June 2012; see also VA Form 9. In May 2013, the Veteran was afforded a VA examination. The examiner reviewed the Veteran's claims file and found no evidence of an in-service head trauma/concussion other than the Veteran's own statements involving the in-service spinning drill press shaft accident. The Veteran reiterated his statements during the examination as the examiner noted that he said, "'I received a concussion of the head by a spinning drill press shaft which lacked safety equipment as stated in my previous communication. I was sent to the infirmary and properly attended to because I returned to my duties without any effects because I was deemed healthy and normal without any debilitating effects.'" The examiner stated that it is unclear how soon the Veteran resumed his duties, according to the account provided. The Veteran provided further details of the accident during the examination by stating "that while he was operating the spinning drill press shaft he leaned in close, causing his hair to get caught; he remembers his hair being 'yanked out.'" However the Veteran added that he did not bleed, nor was he bandaged, and he did not require stitches. The Veteran stated that "he did not give the incident any additional thought and continued on with his life, going to college and earning a master's degree, teaching high school, raising a family, and being active in sports such as golf and bowling." See May 2013 VA Examination. In addition to reviewing the Veteran's claims file and considering the Veteran's statements, the VA examiner conducted a full neurological examination of the Veteran. The neurological examination revealed the Veteran had peripheral neuropathy, mild gait problems, and reduced vibratory sensation at both feet, left greater than right. The examiner indicated that "none of these symptoms are related to his remote head trauma" and that "the neurological examination was without evidence of abnormality related to TBI." See May 2013 VA Examination. The VA examiner opined that "there is no evidence in the [Veteran's] military medical records to indicate that he experienced a traumatic brain injury." The examiner stated that he considered the Veteran's self-reported statements during the examination and the written statements in the claims file, specifically the August 2011 statement, and noted that "there is no evidence to indicate that he lost consciousness or experienced any other neurological symptoms consistent with mild TBI at the time of the drill press related head trauma." The examiner further explained that "persons who experience mild TBI typically have symptoms during and immediately after the event that resolve within hours to weeks after the event." See May 2013 VA Examination. The VA examiner also considered the Veteran's assertions that he suffered an in-service concussion and that he possibly suffers from Chronic Traumatic Encephalopathy (CTE), such as NFL athletes and others who experience cognitive decline. The examiner opined that "as the [Veteran] has not sustained repeated concussions over a long period of time it would be literally impossible for him to have CTE." See May 2013 VA Examination. The examiner's opinion continued with stating that the Veteran's periventricular chronic microvascular disease, as indicated on the Veteran's January 2009 MRI is "not related to his remote head trauma as this type of microvascular disease is not caused by trauma. It is due to the long-term effects of atherosclerosis and caused by reduced blood flow to this area(s) of the brain;" "actually, these microvascular (ischemic) changes are relatively common in a person of the [Veteran's] age." See May 2013 VA Examination. The Veteran's brother was also diagnosed with a tremor; familiar tremor is similar to an essential tremor, except that it is passed down through families, indicating a genetic component. The examiner provided an opinion regarding the Veteran's diagnosed familial tremor disease. "Familial tremors usually start in early middle age, but may be seen in people who are older or younger. It is highly unlikely that the [Veteran's] familial tremor is related to his 1945 head trauma." See May 2013 VA Examination. The examiner concluded his opinion by stating that there are no identifiable residuals of the Veteran's 1945 head trauma; the Veteran does not meet the criteria for Cognitive Disorder (postconcussional disorder), or any other AXIS I mental disorder. "There is no evidence to link any of his current neurological symptoms or his microvascular disease to his remote head trauma." See May 2013 VA Examination. IV. Analysis The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current familial tremor disease or microvascular disease is connected to his military service. The STRs are devoid of any account of the spinning drill press shaft accident in which he asserts his current disability stems from. The Board finds that the Veteran is competent to state that he was involved in an in-service spinning drill press shaft accident and that he was told that he had a concussion resulting from said accident; however, the Veteran does not have the requisite education, training, or experience to offer a diagnosis of a concussion, traumatic brain injury, nor the residuals of such a disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The separation examination that was negative for any residuals of a head injury is evidence that weighs against the claim. The Board acknowledges that the Veteran is currently diagnosed with a familial tremor disease, as detailed above. See Dr. A. K. Medical Records; see also May 2013 VA Examination. Unfortunately, there is no competent evidence that the Veteran's current disability is connected to his military service. The only medical opinion on this issue weighs against the claim. Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of a disability due to a head injury. See 38 U.S.C.A. § 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328 (1997); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for residuals of a head injury. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for residuals of a head injury is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for residuals of a head injury is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs