Citation Nr: 1322651	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  07-09 894A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for head injury residuals to include scar residuals, headaches, and traumatic brain injury (TBI) residuals.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel



INTRODUCTION

The Veteran had active service from October 1967 to October 1969.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the St. Petersburg, Florida, Regional Office (RO) which, in pertinent part, denied service connection for head injury residuals.  In May 2006, the RO denied service connection for posttraumatic stress disorder (PTSD), hearing loss disability, and tinnitus.  In July 2010, the Board remanded the Veteran's appeal to the RO.  

In February 2011, the RO granted service connection for PTSD; assigned a 70 percent evaluation for that disability; and effectuated the award as of November 7, 2005.  In September 2012, the Board determined that the Veteran had withdrawn his appeal from the denial of service connection for both bilateral hearing loss and tinnitus; dismissed those issues; and remanded the issue of service connection for head injury residuals to include scar residuals, headaches, and TBI residuals to the RO for additional action.  That action requested by the September 2012 Board remand was accomplished and the case subsequently returned to the Board.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).  The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence.  


FINDING OF FACT

The Veteran sustained head injury residuals including scalp laceration scar residuals during active service.  


CONCLUSION OF LAW

Head injury residuals including scalp laceration scar residuals were incurred during 

active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a) must inform the claimant about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that the Department of Veterans Affairs (VA) will seek to provide; and (3) the information and evidence the claimant is expected to provide.  In this decision, the Board grants the Veteran's claim of entitlement to service connection for head injury residuals.  As such, no discussion of VA's duty to notify and to assist is necessary.   


II.  Service Connection

The appellant asserts that service connection for head injury residuals is warranted as he was struck in the head while unloading cargo aboard the U.S.S. Washburn and/or was struck in the head by a thrown rock; he received a scalp laceration; and his wound was sutured by naval medical personnel.  

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service.  38 U.S.C.A. § 1110; 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).  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 current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

The claimed disorder is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) are not for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; 
(2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

The Veteran's service treatment records reflect that he was treated for a head injury.  A June 1969 treatment record states that the Veteran had sutures removed from a scalp wound while aboard the U.S.S. Washburn.  At his October 1969 physical examination for service separation, the Veteran's head was reported to be "normal."  

In his June 2004 Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran reported that he had sustained a head injury while aboard the U.S.S. Washburn in 1969.  

A June 2004 VA treatment record states that the Veteran complained of recurrent headaches with blurred vision and impaired sleep.  He reported that he had experienced occasional headaches since he was struck in the head with a large rock during an attempted robbery in 1969.  No diagnosis was advanced.  A July 2004 VA treatment entry notes that an assessment of chronic headaches was advanced.  
In a March 2006 written statement, the Veteran indicated that he had been struck in the head by a box while loading cargo aboard the U.S.S. Washburn in June 1969; was knocked unconscious; and sustained a "head gash" which necessitated stitches.  

An April 2006 VA treatment record states that the Veteran complained of "occasional headaches he attributes to a head injury on active duty in the 1960's."  A headache disorder was not diagnosed.  

In a May 2007 written statement, the Veteran advanced that:

The head injury I received affects my ability to think clearly and make decisions in a short amount of time.  I received stitches in my head, but the details of the entire incident leading to the injury were not noted in my records at the time, I still have the scar on the back of my head from that injury.  I continue to receive medication for the results of this head injury which left me with symptoms of headaches, for instance.  

An April 2010 VA mental health clinic evaluation notes that the Veteran reported that: he had "been bumped on the head" while loading cargo during active service; was rendered unconscious "for a few minutes to several hours;" was given medication for headaches by treating naval medical personnel; subsequently was struck in the head by a thrown rock while in the Philippines; and bled and "felt kind of dizzy" after the rock attack.  The Veteran was diagnosed with "ruleout cognitive disorder NOS [posttraumatic stress disorder (PTSD)] features."  The Board observes that service connection has been established for PTSD.  

At an October 2012 VA examination for compensation purposes, the Veteran complained of an inability to "think straight," to comprehend instructions, and to remember information.  He reported that: he had been struck in the head by a pallet while loading cargo aboard the U.S.S. Washburn; was rendered unconscious; sustained a laceration; and required medical treatment including stitches.  The Veteran was reported to have "no subjective complaints" and "no scars" related to his claimed head trauma.  The examiner opined that:

Veteran does not meet diagnostic criteria for traumatic brain injury as defined by medical literature and/or by guidelines established by VA/DoD department.  Marked inconsistencies between documented data and veteran narrative.  Veteran has attributed the same symptoms to multiple entities around the years.  

At a November 2012 VA psychiatric examination for compensation purposes, the examiner found no neurobehavioral effects "clearly attributable to a TBI- related mental disorder."  

The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal.  The Veteran has consistently reported that he was struck in the head during active service and sustained a scalp laceration which required sutures.  The service treatment records document removal of sutures related to an inservice scalp laceration.  While the report of the October 2012 VA examination notes that no head injury scar residuals were identified, the Veteran has reported that he has current scalp laceration scar residuals.  Given the nature of scalp laceration scar residuals, the Board finds that the two statements are not inconsistent.  

The Veteran's written statements as to having sustained an inservice head injury including a scalp laceration which resulted in scar residuals are competent, credible, and supported by the record.  Therefore, service connection for head injury residuals including laceration residuals is now warranted.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 

The Veteran also asserts that he suffers from headaches and cognitive impairment related to his inservice head trauma.  No competent medical professional has attributed the Veteran's subjective complaints of headaches and cognitive impairment to his head injury residuals.  Indeed, the examiners at both the October 2012 and November 2012 expressly negated such a relationship.  The Veteran is not a physician and has not offered any form of medical qualification.  The question of both the existence and the etiology of such symptoms are not amenable to observation alone and are too complex to be addressed by a layperson.  Such a relationship is the subject of extensive training and research by medical professionals.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  


ORDER

Service connection for head injury residuals including scalp laceration scar residuals is granted.  



____________________________________________
J. T. HUTCHESON
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs