Citation Nr: 1323498	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  09-28 553	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for the residuals of a closed head injury, to include headaches.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran had active service from October 1961 to August 1982.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Waco, Texas.  In that decision, the RO found no new and material evidence to reopen the claim.  In April 2012, the Board reopened the claim and remanded it for a VA examination; in March 2013 the Board again remanded the claim.  

The Veteran was afforded a December 2011 hearing before the undersigned at the RO.  The hearing transcript is associated with the record.  

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 Veteran has current headaches as a residual of a closed head injury that occurred during his military service.  



CONCLUSION OF LAW

The criteria for the establishment of service connection for the closed head injury residual of headaches are met.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).  



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for closed head injury residual of headaches.  As this represents a complete grant of the benefits sought on appeal, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 West 2002 & Supp. 2013), is necessary.  

Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Establishing service connection generally requires evidence of (1) a current disability; (2) lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013).  

In adjudicating this claim, the Board must assess the competence and credibility of the Veteran.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under 38 C.F.R. § 3.159(a)(2) (2013), competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits.  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau, 492 F.3d at 1377.  

The Board must also assess the credibility, and probative value of the evidence of record in its whole.  Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997).  In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza, 7 Vet. App. 498.  

The Veteran contends that ever since he suffered a head injury in service he has had headaches and tenderness to the right side of his head.  His October 2007 statement and December 2011 Board hearing testimony is consistent with service treatment records.  At the hearing he stated headaches were his main residual.  (Transcript, p 26.)  He essentially stated he had intermittent headaches.  (Transcript, pp 26-27.)  

The Veteran's DD 214 shows that he served as an explosive ordinance disposal specialist and ammunition specialist for many years.  June 1968 service treatment records detail an incident where he suffered a shrapnel injury to the neck ear, after an artillery simulator went off eight feet from the right side of his head.  He was only X-rayed in the neck and no abnormality was found.  Ten days later he again complained of an earache and was sent for a consultation because an ear mass was suspected.  The consulting clinician thought he had ear pain from the blast which, in his opinion, would probably go away.  

But the Veteran continued to have head and face pain; he was eventually diagnosed with sinusitis.  (See July and October 1968 records.)  In October 1969, a report of medical history (RMH) showed he reported frequent headaches, a hospitalization a head injury in June 1968, and the clinician noted headaches due to the past injury.  In later RMHs from July 1975 and 1976, the Veteran denied a frequent or severe headache, but reported a past head injury.  In 1976, the physician's summary stated no neurologic sequelae from the past head injury was found.  In a September 1977 RMH, the physician's summary, noted the past head injury and that sinusitis occasionally causes a headache but it was usually asymptomatic.  

The Veteran continued to report the past head injury (see July 1979 service treatment record) for the duration of service.  At the April 1982 separation examination, the Veteran reported dizziness or fainting spells but not frequent or severe headaches.  He reported the past head injury but the physician's summary did not discuss it.  

Post service, the Veteran was noted to have headaches or migraines at March 2003 and November 2009 VA examinations for the sinuses, hypertension and eyes.  In June 2012, he told a VA examiner that he was exposed to an explosion in 1968 in California, but denied loss of consciousness.  She concluded he had a traumatic brain injury (TBI), but the severity at the time of the injury was none to mild and the condition was stable.  His only symptom was headaches, but she determined they were not related to the TBI but gave no reason.  Her only opinion was that he had a head injury secondary to an artillery explosion along with hearing loss.  

A clarification opinion was sought in June 2013.  Again, medical history was described.  The examiner noted that this time the Veteran stated he had headaches immediately after the head trauma and continued to have them.  He explained he never sought medical treatment for them.  The examiner found no tenderness upon palpation of side of head and noted VA medical records showed no treatment for headaches.  

The diagnosis now was: "headaches and head tenderness on the right side of his head, residuals of the in-service artillery blast injury on 06/08/68, not found."  The examiner cited to the June 1968 service treatment records (including the one stating pain would probably go away), the October 1969 record showing he had a headache as sequelae and the RMH in July 1976 showing no neurologic sequelae.  Then the examiner stated that the service treatment records showed that tenderness and headaches were less likely than not residuals of the in-service blast injury.  

Analysis

The Veteran is currently service-connected for other residuals of the artillery simulator explosion in service, including a right ankle disability, bilateral hearing loss and tinnitus.  He is also service-connected for chronic intermittent sinusitis and hypertension, of which headaches may be a symptom.  

A current disability of headaches has been established based on the Veteran's statements and the VA examination reports.  There is lay evidence of in-service incurrence of head trauma established by the Veteran's lay testimony and service records.  38 U.S.C.A. § 1154(a); Shedden, 381 F.3d at 1167.  

The Veteran stated he had head trauma in service and the Board finds him to be competent to state that he experienced headaches and head tenderness while in service.  See Jandreau, 492 F.3d at 1377.  This statement is bolstered by the service treatment records and is consistent with the circumstances of his service.  38 U.S.C.A. § 1154(a).

The Board finds the Veteran's reports to be credible and consistent with service records showing the circumstances of his service working with explosives and the many records establishing headaches intermittently throughout service.  As a result, the Veteran's assertions are assigned high probative value.  

The June 2013 VA examiner noted a lack of post-service treatment; but the absence of such treatment alone is not a sufficient reason to reject the Veteran's contentions.  See Buchanan, 451 F.3d 1331.  The examiner also cited to some service treatment records.  But the service treatment records do not explain why intermittent headaches and pain, which Veteran has been relatively consistent in reporting, are not related to the confirmed in-service injury.  The Board considers the rationale to be inadequate and consequently finds the opinion is not probative.  

There is no other probative medical evidence that conflicts with the Veteran's reports of headaches beginning in service after the head injury.  The Board considers the Veteran's reports of symptoms of headaches and head pain, which he is competent to report, to be probative evidence of a nexus.  See Jandreau, 492 F.3d at 1377.  

The Board finds that the benefit of the doubt rule is for application here.  Resolving doubt in the Veteran's favor, the closed head injury residual of headaches had its onset in service and service connection is warranted.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  


ORDER

Service connection for the closed head injury residual of headaches is granted.  



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs