Citation Nr: 1323628 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 05-28 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Service connection for residuals of head trauma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1967 to July 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision rendered by the Milwaukee, Wisconsin Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2007, the Board remanded the Veteran's case to the RO for additional development to include scheduling the Veteran for a hearing. The record reflects that the Veteran cancelled both an RO hearing and a hearing before a member of the Board. Following further development of the record, the RO continued to deny the Veteran's claims then on appeal and returned this matter to the Board. In January 2011, the Board remanded the Veteran's petition to reopen his claim of service connection for residuals of a head trauma to allow for the issuance of a supplemental statement of the case (SSOC). The Appeals Management Center (AMC) issued the SSOC in September 2011. The Veteran's case was returned to the Board in October 2011. The Veteran provided a response to the SSOC that was received at the RO in October 2011, stating that he wanted to have a Travel Board hearing for the issue on appeal. Accordingly, the Board remanded the case for a hearing in August 2012. The Veteran was provided with a hearing before the undersigned in November 2012 and the case was returned to the Board for appellate consideration. In a January 2013 decision and remand, the Board granted the Veteran's petition to reopen his claim, but remanded the substantive issue of service connection in order to obtain a VA examination. The requested development having been accomplished, the matter has been returned to the Board for adjudication of the Veteran's appeal. A review of the Virtual VA paperless claims processing system includes documents that relate to, and have been considered as part of, the present appeal. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran was involved in an altercation or fight during service. 3. A left eyebrow scar is related to service, and is the only current diagnosed residual of a fight and associated head trauma during service. CONCLUSION OF LAW The criteria for service connection for a left eyebrow scar have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided VCAA notice letters to the Veteran in September 2002, prior to the initial adjudication of the service connection claim, and in March 2006. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case the Veteran was provided with such notice in the March 2006 letter, including the type of evidence necessary to establish a disability rating and effective dates. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Here the VCAA duty to notify was not fully satisfied until the issuance of the March 2006 letter. With the issuance of this letter, the Veteran was "provided the content-complying notice to which he [was] entitled," Pelegrini, 18 Vet. App. at 122. Following subsequent readjudication of the claim, including in a March 2013 SSOC, any timing deficiency with respect to notice was cured. Prickett, 20 Vet. App. At 376. Moreover, in a hearing before the undersigned, the presiding Veterans Law Judge clarified the issue on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of their claim. These actions by the undersigned supplement VA's compliance with the VCAA and serve to satisfy the obligations imposed by 38 C.F.R. § 3.103. Based on the foregoing, timely and adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of private and VA treatment as well as records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran has been afforded numerous examinations during which his claims file has been reviewed, physical examination and diagnostic testing has been conducted, his history has been taken down, private medical evidence and lay evidence has been considered, and the conclusions reached have been rationally well-supported and consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record, including testimony provided at a November 2012 hearing before the undersigned. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Legal Criteria for Service Connection 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. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case the record has been reviewed with an eye towards any potentially diagnosed "chronic disease" listed under 38 C.F.R. § 3.309(a) for which the the presumptive provisions of 38 C.F.R. § 3.303(b) may apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In pursuing his claim and subsequent appeal, the Veteran has no clearly articulated the disability or symptoms of disability, other than left-sided facial nerve damage with involvement of the left eye, that he believes is/are associated with any head trauma incurred during service. The Board is aware that this matter involves a complex medical issue and to that end, the claim has been broadly construed to include any disability that may reasonably be encompassed by several factors, including the Veteran's description of the claim, the symptoms the Veteran has described and the information that the Veteran has submitted or that VA has obtained in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). That said, a review of the Veteran's record indicates that over the past 40 years the Veteran has claimed service connection for a number of disorders, due mostly to alleged in-service exposure to trichloroethylene (TCE) and other chemicals to include JP-4 fuel jet aircraft fuel. Claims of service connection for left-sided facial nerve damage with involvement of the left eye, residuals of right leg weakness associated with transverse myelitis, a disability manifested by weakness of the legs and ankles other than right leg weakness associated with transverse myelitis, and another neurological disability other than transverse myelitis have been previously and separately adjudicated in prior Board and RO decisions. While the Board construes the Veteran's claim broadly, the present appeal is nevertheless limited to service connection for residuals of head trauma, and the foregoing discussion reflects that limitation. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). In this case, many of the Veteran's purported symptoms, such as pain, paralysis, changes in skin appearance and changes in vision are capable of lay observation and thus competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Facts and Analysis The Veteran claims that he was involved in a fight in the parking lot of a restaurant in California during service, and that residuals of a head injury sustained during that fight relate to one or more current disorders. The Veteran does not allege that the claimed injury occurred as a result of combat against enemy forces nor does he allege that he ever had such combat. Furthermore, a review of his official military documentation contained in his claims file does not otherwise indicate that the Veteran engaged in combat against enemy forces as contemplated by VA laws and regulations. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran did not "engage in combat" with the enemy during service, and the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. Central to the Veteran's claim, is the matter of an in-service altercation. The Veteran's service treatment records indicate that in January 1971 the Veteran reporting having been in a fight in a town called Marysville. He had a laceration on the left eyebrow and an abrasion of the forehead. Six sutures were used to close wound above his eyebrow and he was asked to return for a follow-up in two days; during the 2012 hearing before the undersigned the Veteran confirmed that he did not return as requested. On service separation examination in May 1971 the Veteran's head, face neck and scalp were normal, eyes were normal with normal vision, upper and lower extremities were normal, the spine was normal, and he was normal neurologically and psychiatrically. Additionally, the Veteran's skin was normal and the Veteran had no identifying scars, marks, or tattoos. Throughout the record are statements and reports from the Veteran regarding his in-service fight. The first post-service evidence was the Veteran's report of a history of slight head trauma during a 1975 VA examination. On VA examination in 1987 the Veteran also endorsed having been "beaten up" and losing consciousness during service. In a November 1990 statement, the Veteran reported being attacked with car jacks and tire irons and beaten until unconscious during service. He stated that his forehead was "completely scraped." The Veteran endorsed an in-service fight on psychiatric evaluations in September and October 1992. He stated that he was in a fight with the ex-husband of a woman who he met at a dance during service, and that during the fight he was beaten and knocked unconscious. In February 2002 the Veteran stated that he was attacked with car jacks and tire irons by "at least 20 guys" in a parking lot outside of a Denney's restaurant during service. He was beaten and lost consciousness. For several days after the incident, the Veteran's face was swollen, and he continued to have chest pains for weeks to months following the attack. In describing the in-service fight, in a June 2004 statement, the Veteran stated that he was "beaten severely by 10 or more people while stationed at Beale A[ir] F[orce] B[ase]." In a September 2006 statement, the Veteran indicated that he was "physically attacked with tire irons." In the November 2012 hearing before the undersigned, the Veteran stated that during service, when leaving a restaurant and entering the parking lot, he was attacked by a group of men who beat him with "car jacks," causing him to lose consciousness. In a March 2001 letter, L.L. indicated that the Veteran had been a member of L.L.'s crew at the jet engine shop in Beale Air Force Base. L.L. endorsed having seen the Veteran one Monday morning and it was apparent that the Veteran had been beaten about the head, eyes and face. In an August 2006 statement, G.M. stated that he, the Veteran and another airman got into a fight with eight to ten individuals following a dance at a bar. The fight reportedly involved blunt instruments, and G.M. recalled that the Veteran received stitches as a result. In October 2005, the Veteran's sister stated that she recalled the Veteran telling her that another service member had hit him in the head with a metal pipe. The Board finds that the Veteran was injured during a fight in service. The Veteran's endorsement of having been involved in an altercation has been essentially internally-consistent to the extent that he has maintained that the event took place in a restaurant parking lot following a social gathering. The Veteran's contention is further confirmed by the statements from fellow service members and the Veteran's sister. Nonetheless the Board finds that the Veteran's descriptions regarding the severity of the fight are not consistent with the injuries sustained and the treatment rendered. Specifically, the service treatment records shows that the totality of the treatment the Veteran received consisted of six sutures above the left eye and cleaning of the wound. On separation examination in May 1971, only four months after the incident, the Veteran's head, face, neck and skin were normal. While aspects of the Veteran's testimony are consistent with the record - for example, that he was asked to return for a follow-up appointment - the specific details of the Veteran's account - including the alleged severity of the altercation - are inconsistent with the record. It is also noted that while the Veteran first filed a claim for compensation in November 1972, it was not until November 1990 that he began to claim entitlement to residuals of a head trauma, and it was beginning with the filing of his November 1990 claim that the Veteran began describing the fight as being severe. With regard to residuals from head trauma, during the November 2012 hearing before the undersigned, the Veteran stated that he felt his residuals included "vision problems," facial paralysis, and boils on the face and hand. Following separation from service, the Veteran was admitted to a VA hospital for treatment in October 1972. At that time, the Veteran reported having been in good health until the summer of 1972 when he noted several febrile episodes without evidence of illness, and the subsequent development of a furuncle on his left cheek in August 1972, and on his left hand in September 1972. In October 1972 the Veteran developed pain in the lower thoracic region, which progressed to a steady dull pain in his mid back and lumbar area and subsequently became associated with bilateral leg numbness and weakness of the lower extremity muscles. Post-service medical evidence reflects the Veteran's treatment for left-sided Bell's palsy beginning sometime in the 1970s. The Veteran retained residual disability as a result of his Bell's palsy. Likewise, an August 1984 VA treatment record reflects the Veteran's complaints of headaches following his being physically assaulted and hit in the head by his brother and another person some time after service. In September 2000 the Veteran underwent a neurologic disability examination for Social Security Disability purposes at a private facility. The examination was limited to the Veteran's neurologic status, however the examining physician specifically stated that the "[h]ead shows no evidence of trauma." In a May 2004 correspondence, the Veteran stated that he had been told by doctors that "my conditions are service connected [and] I should be getting [compensation] but it is never put on paper." On a September 2005 eye examination at a private facility the Veteran reported that he had been hit above the left eye in 1971 and was told in 1994 that he had left eye nerve damage. On VA examination in January 2009, the Veteran reported being involved in a fight in 1970 during which he was struck on the left side of the face, and as a result, received six sutures above the left eye. Following a thorough examination and review of the Veteran's claims file, the VA examiner diagnosed paralysis of left facial nerve seven, and lower extremity weakness with spasms and bladder leakage, and opined that neither diagnosed disorder was due to the Veteran's in-service exposure to TCE. On VA examination in April 2013, the Veteran reported that his recently post-operative neck injury and his long history of paralysis are related to the in-service fight. He also stated that problems with anger and vision, neck pain, left-side weakness, and memory loss were all due to the same fight. The Veteran told the examiner that during service he was ambushed by a group of people in a parking lot who hit him in the head and neck. He endorsed loss of consciousness during the attack. Following neuropsychological testing and a review of the Veteran's claims file, the VA examiner concluded that the only significant finding was on Montreal cognitive testing which suggested mild cognitive deficits associated with visuospatial/executive function, attention, language/fluency, abstraction and delayed recall. The examiner opined that the Veteran's service treatment records reflected no pathological diagnoses associated with a head injury during service. He stated that mild cognitive deficit found on Montreal cognitive testing was not related to service as there was nothing of record to suggest the types of events or injuries which would cause prolonged neurological residual defects. The examiner also indicated that the Veteran's claimed residuals of spastic paresis related to transverse myelitis and the C6-7 disc herniation with left-side nerve compression was not related to the only noted fight-related injury, a left eyebrow scar. The Board finds that the weight of the lay and medical evidence demonstrates that, other than a left eyebrow scar, the Veteran does not have any diagnosed disorder which is etiologically related to service. The record in this case is voluminous and highly detailed with regard to the Veteran's medical history following service, and at no point has any medical professional specified any residual of in-service head trauma other than the left eyebrow scar. The Veteran has averred to a number of residuals, however only to the extent that such residuals are capable of lay observation are the Veteran's endorsements credible. Brown, 6 Vet. App. 465. Accordingly the Veteran's statements linking "vision problems," facial paralysis, memory loss, neck pain, anger, and boils on the face and hand to service are not competent and hence not probative. Of greater probative value are the competent opinions of VA examiners and other medical professionals, none of whom identified any current residual associated with the Veteran's in-service head trauma, in spite of the Veteran's report of such trauma to these professionals. Especially probative was the opinion of the April 2013 VA examiner who conducted a thorough evaluation of the Veteran, identified current disorders, and yet affirmatively opined on their lack of connection to the Veteran's in-service head trauma. The Board finds that the Veteran's left eyebrow scar is related to service. As previously indicated, service treatment records show that in 1971 the Veteran received six sutures to close a wound above his left eyebrow following a fight. Service separation examination in May 1971 indicated the Veteran had no identifying scars, however the existence of a left eyebrow scar is well-documented and there is no evidence to suggest any cause of such a scar other than the Veteran's in-service fight. Accordingly, resolving doubt in the Veteran's favor service connection for a left eyebrown scar is established. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left eyebrow scar, claimed as residuals of head trauma, is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs