Citation Nr: 1324934 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-45 559 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a fractured mandible. 2. Entitlement to service connection for traumatic brain injury (TBI) due to a head injury. 3. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), anxiety, and depression. 4. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the St. Paul, Minnesota, Regional Office (RO). By a rating action in December 2008, the RO denied the Veteran's attempt to reopen a previously denied claim of entitlement to service connection for fractured mandible. The Veteran perfected a timely appeal to that decision. On October 26, 2010, the Veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of that hearing is of record. At the hearing, the Veteran submitted additional evidence for which he has provided written waiver of RO review under 38 C.F.R. § 20.1304 (2012). In March 2011, the Board determined that new and material evidence had been received to reopen a claim for service connection for a fractured mandible; the Board remanded the issue for evidentiary development. The Board also remanded the issue of service connection for a TBI for evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in September 2012. As discussed in further detail below, the Board finds that there was substantial compliance with the terms of the March 2011 remand decision; thus, the Board may proceed with a decision on those issues at this time. See Stegall v. West, 11 Vet. App. 268 (1998). Unbeknownst to the Board when it had the case in early 2011, the RO had created temporary files and was working on other issues. By a January 2011 rating decision, the RO denied claims of entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety and depression, and service connection for obstructive sleep apnea. He perfected an appeal and the 7-volume temporary file was ultimately forwarded to the Board several months after the claims files were returned following action on the Board's 2011 remand. The issues of entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety and depression and service connection for obstructive sleep apnea are addressed in the remand that follows the decision below. FINDING OF FACT A fractured mandible and any TBI due to in-service head injury were the result of the Veteran's willful misconduct. CONCLUSION OF LAW The Veteran does not have a fractured mandible or TBI that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an statement of the case SOC or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in October 2008 from the RO to the Veteran, which was issued prior to the RO decision in December 2008. Additional letters were issued in April 2011 and June 2011. Those letters informed the Veteran of what evidence was required to substantiate the claims, and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran and examined the Veteran. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. Therefore, no useful purpose would be served in remanding the questions addressed herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The Veteran served on active duty from July 1973 to July 1976. The service treatment reports (STRs) include a statement of medical examination and duty status (DA Form 2173) that indicates that the Veteran was admitted to a hospital in May 1974. It was noted that he suffered a fractured mandible as a result of a fight. It was reported that the Veteran had been drinking and pestering a PFC D. for repayment of a loan. Both individuals became agitated and the Veteran grabbed the other service member by the head. It was also reported that, while trying to get out, the other service member struck the Veteran on the head an unknown number of times. That report shows that it was determined that the Veteran's injury was considered to have been incurred in the line of duty. Of record is a report of investigation, Line of duty and misconduct status (DD Form 261), dated September 30, 1974, which indicates that the Veteran sustained a fractured mandible as a result of fighting. It was ultimately determined that the injury was not sustained in the line of duty and that his injuries were due to his own willful misconduct. The Veteran's initial claim for service connection for a fractured mandible (VA Form 21-526) was received in February 1992. Submitted in support of the claim were VA treatment records dated from November 1991 to March 1992. These records indicate that the Veteran sustained a head injury as a result of a motor vehicle accident in October 1989; he was subsequently diagnosed with traumatic brain injury (TBI). In an administrative decision in July 1992, the RO found that the injuries sustained by the Veteran on May 4, 1974, were the result of his own willful misconduct; that is, it was determined that the evidence showed that the Veteran initiated the altercation which resulted in his injuries. Therefore, in a rating action three days later, the RO concluded that the Veteran was not entitled to VA compensation for a fractured mandible because the condition was the result of the Veteran's own willful misconduct and not a disability for which compensation is payable. As noted above, the Veteran did not appeal either of these decisions, and these decisions became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Received in October 2008 was VA Form 21-4138, wherein the Veteran maintained that he sustained injuries as a result of an assault while stationed in Germany; he stated that his attacker knocked out a tooth and broke his jaw. Also received in October 2008 were VA progress notes dated from July 2008 through October 2008. During a clinical visit in June 2008, it was noted that the Veteran was injured in a motor vehicle accident in 1989; the Veteran described a loss of consciousness for 4-1/2 days and an altered mental status for at least that long. The assessment was past history of severe traumatic brain injury with late effects and cognitive disorder, secondary to TBI. An October 2008 clinical note indicated that the Veteran had a past history of a severe TBI in 1989 due to a MVA; he was having difficulties with cognition and balance when he was seen June 1st. In a statement in support of the claim, dated in January 2009, the Veteran indicated that he was asleep in his bunk in service when he was assaulted; therefore, he failed to see how that situation could be construed as "willful misconduct." The Veteran stated that he was told by a neurologist that they did not have the technology to identify a brain injury in service; however, scar tissue from the in-service head injury was identified in 1992. The Veteran maintained that the car accident in 1989 injured the front of his brain, but the assault injured the back of his brain. The Veteran also submitted copies of evaluations dated from March 1976 through June 1976, which reflect that the Veteran received excellent evaluations and recommendations. Received in March 2009 was another statement from the Veteran wherein he described the incident in service during which he sustained a head injury. The Veteran indicated that, the night of the incident, he was already in bed when PFC D. came into his room. The Veteran stated he noticed that PFC D. was intoxicated, at which point he told him "if you have money to go out drinking, then you should have money to pay me back the money you owe me." When the Veteran asked him exactly when he would be repaid, PFC D. started striking the Veteran in the face with a bunk adapter, which is a pipe-like steel tube. The Veteran stated that he jumped out of his bunk and managed to get the attacker in a headlock; he stated that by the time the CO reached their room, the attacker had dropped the steel pipe somewhere. The Veteran indicated that he was then sent to the clinic and is unaware what occurred in the room after he left. The Veteran noted that he suffered a broken jaw and injuries to his shoulder and a knot on the back of his head. Radiographic reports dated from November 1991 to October 1993 all report a clinical history of previous head trauma in 1989. These records reflect findings compatible with mild cerebral atrophy. Received in January 2010 were copies of letters written by the Veteran to his girlfriend during his period of hospitalization in service in May 1974. In one letter dated May 6, 1974, the Veteran told his girlfriend that he was hospitalized for treatment of a broken jaw; he told her that someone struck him three times because he kept bugging him about money that the Veteran was owed. Of record is a primary care physician note dated in April 2008, which indicated that the Veteran had not been followed for TBI for six years at the time of that evaluation. The examiner noted that the Veteran was in a car accident in 1989 and was a passenger in a car that went over a curb and rolled over. He sustained a TBI with fractures to the spine, neck and back. He stated that he was in a coma for four and a half days; he was paralyzed from the neck down for about six months. He had other problems, including cognitive deficiency, memory loss, diplopia, tinnitus and seizures. His last seizure was around 1994. He stated that he continued to have problems with neck and back pain. The examiner noted that he went back to technical school in 1995, and that would have been after the motor vehicle accident, but he had trouble staying awake because of narcolepsy-like symptoms. A mental health note reported an impression of mood disorder; and mood disorder secondary to general medical condition, TBI and sleep apnea. Of record is the report of an informal teleconference, dated in January 2010, during which the Veteran argued that the line-of-duty determination was incorrect. The Veteran maintained that he was just lying in bed with the covers pulled over his head when he was attacked; he was hit in the jaw, the back of the head and shoulder. The Veteran further maintained that he did not initiate the verbal argument that led to the altercation. The Veteran reported that he was called into the office and told to sign off on the inquiry; otherwise he would be charged with disobeying a direct order. The Veteran stated that he never saw the final line-of-duty determination. The Veteran's representative noted that the other soldier was demoted and the Veteran was not; it was further noted that the other soldier apologized to the Veteran after he had returned from emergency leave. The service representative argues that these actions are clear signs that the other soldier was at fault rather than the Veteran. The Veteran also reported that an MRI in 1989, following the motor vehicle accident, showed evidence of an old head trauma in the area in the back of the head. Received in April 2010 were VA progress notes dated from July 2009 through October 2009 showing follow-up evaluation and continued treatment for TBI. In May 2010, the Veteran was referred for a psychiatric consultation for concerns of depression. The psychiatrist noted that the Veteran had two traumatic brain injuries; one happened in the military in 1974 when he was in Germany. At that time, he was assaulted while sleeping. The second happened when he was in a motor vehicle accident as a passenger in October 1989; the examiner noted that this traumatic injury occurred in the front part of the brain. He stated that the Veteran reached a plateau with recovery for the second traumatic brain injury. He reported his short-term memory was impaired and that it gets down when he is stressed or overwhelmed because of his TBI. Received in May 2010 was a buddy statement from S. G., who reported being stationed in the same unit with the Veteran while stationed in Germany; it was reported that the two spent a lot of time together. S. G. noted that the Veteran was one of the most responsible and respected individuals in their unit; he was not one prone to picking fights or being confrontational. S. G. also noted that, while the Veteran may have had an occasional beer, he never saw him drunk. S. G. explained that there were a lot of racial tensions in the 1970s; however, the unit leadership seemed to ignore or tolerate the racial problems, which usually found the whites under attack. S. G. stated that he did not believe that the Veteran's injuries were due to willful misconduct because it would have been totally out of character for him to drink excessively or to be confrontational and start a fight. At his personal hearing in October 2010, the Veteran's representative argued that the record is full of inconsistencies regarding the incident that took place in service. She observed that the record indicates that the other individual was not injured, but the Veteran was hospitalized for six weeks; the period of hospitalization was cut short due to an emergency leave. The representative also noted that S. G. reported hearing on base that the Veteran had been beaten by the other soldier and put in the hospital; these reports, it was argued, indicate that the Veteran was the victim in the situation. The service representative further noted that it was highly suspect that one line-of-duty determination was done at the same time as the incident in May 1974, and it was determined that the injuries were incurred in the line of duty and they were not due to willful misconduct. Nevertheless, several months later another line-of-duty determination was done that reversed the earlier finding. The Veteran testified that he was threatened with an article 15 if he did not sign the latter one. The Veteran indicated that he was later involved in a car accident after service. He asserts that, at that time, x-rays revealed scar tissue from the previous head injury he sustained in service. The Veteran also reported that it was after the car accident that he was found to have suffered damage to the front of his brain and was later diagnosed with TBI; however, it was also discovered that he had suffered damage to the back of the brain, which was where he was struck in service. Submitted at the hearing was an additional statement from S. G., dated in October 2010, explaining that while he did not witness the fight, he heard about it the next day as everyone on base was talking about it. S. G. stated that he heard that the Veteran was trying to get the other soldier to pay him money that was owed, and the other soldier had beaten the Veteran badly and put the Veteran in the hospital with a broken jaw. He stated that the Veteran later confirmed what he had heard; the Veteran reported that the other soldier hit the Veteran as he was lying in bed and he had to get up and grab his attacker or he would have been killed. Subsequently submitted in January 2011 was a statement from W. H., indicating that he and the Veteran were stationed in the same unit. W. H. noted that he was informed by the First Sergeant that the Veteran was hospitalized and he had to do inventory of his belongings and get his bed stripped because the bed was bloody from the assault. Received in April 2011 were VA progress notes dated from January 1992 to January 1999. These records show that the Veteran received follow-up evaluation and treatment for symptoms of TBI. During a clinical visit in March 1992, the Veteran reported suffering an injury in military service in Germany; he stated that he was intoxicated when his roommate hit him with an iron bar while he was sleeping in his bed and he suffered a fractured jaw. It was also noted that the Veteran had had decreased memory since the 1989 MVA. Received in May 2011 were VA progress notes dated from December 1995 to October 2010. Following a new patient evaluation in April 2008, the Veteran was diagnosed with TBI in 1989, including brain injury and brain stem injury with spinal injuries of his neck and back. It was noted that he had some cognitive deficiencies, diplopia, tinnitus, and seizures classified as "absence" seizures. He had some continued problems with narcolepsy-type spells. He also had chronic pain syndrome and chronic fatigue. He was also diagnosed with sleep apnea. At his examination in July 2011, the Veteran presented with a chief complaint regarding a TBI. He reported that there were two injuries; the first occurred while in the military in Germany in 1974 when he was sleeping and he was the victim of an assault and battery. He stated that his roommate was the perpetrator of the crime and was angry with him because the Veteran was trying to be repaid money that he had loaned to the roommate. The Veteran indicated that he was struck in the middle face with some object and it fractured his jaw; he turned his neck to get away from the blows and sustained three blows to the back of his neck. He reported that he was in and out of consciousness, but he underwent anesthesia for jaw wiring; he did not recall any other treatment. The examiner noted that post-traumatic amnesia was difficult to assess this long after the fact, but he felt he was in and out of consciousness for a period of time that included the time he had probable general anesthesia for wiring of his jaw. The second event occurred in 1989. He was a passenger in a car that went over a curb and there was a rollover. He sustained a brain injury and injury to his spine. He had loss of consciousness and was in a coma for four and a half days. The examiner stated that the severity of his traumatic brain injury at the time of his injury in the military would be difficult to determine based on his historical capability and with him sustaining a brain injury subsequent to that first initial injury, but he definitely had at least a mild traumatic brain injury. The examiner reported that, upon consideration of the mandible fracture that the Veteran reported, though it is unconfirmed, it would be mild to moderate based on that type of injury, but based on his level of consciousness and post-traumatic amnesia, he would have to review the medical records. He noted that the Veteran's condition has stabilized. The examiner stated that, based on the information available without the benefit of a claims folder to review for this case, it was his opinion that the Veteran had a mild TBI while in the military and a severe TBI in 1989 after he was in the military due to the motor vehicle accident. The examiner stated that that motor vehicle accident resulted in loss of consciousness for greater than 24 hours in fact was four and a half days, and post-traumatic amnesia that was difficult to determine based on the Veteran's history. Regarding the injury that occurred in the military, it was at least a mild injury and there was a mandible fracture, by the Veteran's report. The examiner noted that the Veteran was hospitalized for four to five days; however, he did not have the benefit of medical record review to indicate more than that, but the Veteran did return to his normal duties. The examiner also stated that a diagnosis related to this military injury would require speculation. The examiner again noted that he did not have the benefit of the medical records, but the Veteran had had a very severe injury in 1989. In an addendum to the above examination, it was noted that x-ray study of the skull revealed no obvious displaced fracture. The claims folders were subsequently sent to the VA examiner for review and opinion. The examiner stated that, in his medical opinion, it was just as likely as not that the Veteran sustained a TBI while in the military while serving in Germany in 1974. The examiner noted that the records confirm that the Veteran was involved in an altercation and sustained injuries on May 4, 1974; he was struck with enough force to sustain a fracture of the mandible and a six-week hospitalization, although the hospitalization was cut short. It was noted that his girlfriend noted he had a lump on the back of his head and his mother indicated that he was not right and she attributed this to the altercation. A follow-up MRI after a motor vehicle accident in 1989 revealed evidence of a previous head injury in the left occipital area consistent with focal encephalomalacia. Therefore, the examiner concluded that it was as likely as not that the Veteran sustained a TBI while in the military when serving in Germany due to the altercation. Received in June 2012 were treatment reports, dated in October 1989, reflecting treatment provided to the Veteran following the motor vehicle accident in 1989. The records indicate that the Veteran was involved in a motor vehicle accident; it was unclear whether he was the driver or the passenger. Apparently, they lost control at a fairly high rate of speed and went off the road and struck a pole and landed across his back. He was apparently unresponsive at the scene; he was transferred to the emergency room. The assessment was motor vehicle accident in an otherwise apparently fairly healthy 35 year-old male with the following injuries: closed head injury with intraventricular blood and two small intracerebral contusions; right scapular fracture with underlying pulmonary contusion without significant pulmonary compromise; large ecchymosis and abrasion on his right posterior back and right flank; and mild hypothermia that was resolving; and alcohol intoxication. In August 2012, the Veteran's claims folder was referred to a VA examiner for review and opinion. Following a review of the records, the examiner stated that it was just as likely as not that the Veteran sustained a TBI while serving in the military in Germany in 1974 due to an altercation that occurred on May 4, 1974 in which he was struck with enough force to fracture his mandible and result in hospitalization for six weeks. His girlfriend had noted a lump at the back of the head, and his mother had indicated that he was "not right," and she attributed this to the altercation. The examiner further stated that when the Veteran sustained a post-service TBI, there was evidence of a previous head injury in the left occipital area with focal encephalomalacia. He noted that the deficits following the initial head injury included mild cognitive deficits and headaches with post-concussive syndrome. The severity of this head injury was deemed moderate by his doctor based on alteration of consciousness for over 24 hours and subsequent abnormal structural imaging in 1989 due to a MVA that was consistent with prior injury. The examiner noted that, after the first TBI but before the second, the Veteran was promoted while still in the military and was transferred to Brigade which required top secret clearance. It was very unlikely that this would have occurred if he was significantly impaired. He was also able to sustain his marriage and to hold a job. Moreover, he was able to successfully complete two years of college and earn an associate degree in 1978 in accounting. He was able to work as an accountant and was also self-taught in computer systems and worked converting manual accounting systems to computerized accounting systems. In contrast, following the second TBI, which was severe based on loss of consciousness for 4 to 5 days, the Veteran's functional status significantly declined. He needs a palm pilot to aide his memory and a GPS to compensate for visuospatial deficits. Additionally, rather than being gainfully employed, he was unable to work and he was on social security disability. In a report of general information (VA Form 21-0820), dated in August 2012, the Veteran was asked whether he had received treatment at the VA medical center in St. Cloud, Minnesota; he stated that he did not begin receiving treatment at that VAMC until October 29, 1991. Therefore, it was determined that no records exist for the period from January 1, 1989 to October 28, 1991. Of record is a memorandum, dated in September 2012, wherein the RO indicated that all procedures to obtain the Veteran's St. Cloud, MN VA treatment records, dated from January 1989 to October 1991, had been correctly followed. It was noted that all efforts to obtain the needed information have been exhausted and further attempts would be futile; the records are not available. It was also determined that all attempts to obtain social security records had failed; those records were unavailable. III. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). However, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a); see also § 3.1(m) (defining "in line of duty" in such terms). A service department finding that injury, disease or death occurred in line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA. 38 C.F.R. § 3.1(m). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. A service department finding that injury, disease or death was not due to misconduct will be finding on the VA unless it is patently inconsistent with the facts and laws administered by the VA. 38 C.F.R. § 3.1(n). (2012). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). When there is an approximate balance of positive and negative 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. Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that any residuals of a head injury, to include a fractured mandible and a TBI were incurred as a result of any established event, injury, or disease during his period of service in May 1974. In this case, as already noted, the Veteran's STRs confirm that he sustained a fractured mandible and a TBI due to head injury he sustained in an altercation in May 1974. Moreover, VA medical examinations include conclusions that attribute current disability (mandible fracture residuals and mild TBI) to that injury. Despite the foregoing, the Board finds that service connection is not warranted for any of these residuals. While medical evidence indicates that it is as likely as not that the Veteran sustained a TBI while serving in the military in Germany in 1974, it has also been determined that that the injuries sustained by the Veteran on May 4, 1974 were the result of his own willful misconduct. Therefore, the Board finds that the Veteran's willful misconduct was more likely than not the cause of his fractured mandible and TBI. Additionally, the Board finds it most significant that the September 1974 line-of-duty and misconduct determination found that the Veteran sustained a fractured mandible during a fight; and it was determined that the injury was not sustained in the line of duty but was due to his own willful misconduct. The Board places great weight on a contemporaneous finding of an officer charged with the duty of investigating the event and making such determinations. The evidence submitted by the Veteran fails to persuade the Board that the line-of-duty determination was not correctly made. Witnesses to the event reported that it was not until after the Veteran demanded repayment of the loaned money and after he had assaulted the debtor by putting him in a headlock did the debtor strike the Veteran. Given the Veteran's interest in portraying himself a victim, and because of the witness statements refuting the Veteran's account of the event, the Board finds the Veteran's version to be incredible. The Board finds no bias or prejudice in the line-of-duty officer's investigation or final account of what happened. Provoking a fight by assaulting another soldier on account of a debt rises to the level of intentional wrongdoing with disregard of the probable consequences. To believe that another soldier would not defend himself or fight back after being placed in a headlock is illogical. Because the TBI and fractured mandible were the proximate results of the Veteran's fight over the debt, the Board finds that these disabilities were not the result of injury incurred in the line of duty. As for the argument that the first line-of-duty determination should be given greater weight, the Board notes that the initial determination was made without a full investigation and therefore was made without all the facts. The Board gives it no weight compared to the determination made after having investigated the circumstances of the injury. Since the residuals of any TBI and fractured mandible arising from the May 1974 are due to willful misconduct, and were not incurred in the line duty, VA benefits based on such incident are barred. See 38 C.F.R. § 3.301. The preponderance of the evidence is against the claim for service connection for the residuals of a head injury, including a TBI and a fractured mandible. There is no doubt to be resolved; and the appeal is denied. ORDER Service connection for a fractured mandible or TBI due to in-service head injury is denied. REMAND Further development is necessary before adjudicating the claims of service connection for an acquired psychiatric disorder and sleep apnea. In a statement in support of claim (VA Form 21-4138), dated in April 2013, before the case was received at the Board, the Veteran stated "I wish to request a personal interview to discuss my claim." In an April 2013 letter, the Veteran's service representative noted that the Veteran was in fact requesting an informal conference in regards to the appeal. The record does not show that one was held. Therefore, conference with a decision review officer should be scheduled, and the two claims that have been developed separately by the RO should thereafter re-adjudicated. See 38 C.F.R. § 3.2600(c) (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule an informal conference for the Veteran with a decision review officer. 38 C.F.R. § 3.2600(c) (2012). 2. After undertaking any other development deemed appropriate, re-adjudicate the Veteran's service connection claims for a psychiatric disability and sleep apnea. If any benefit sought on appeal remains denied, the veteran should be provided a SSOC. An appropriate period of time must be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs