Citation Nr: 1331515 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-08 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active military duty from June 1946 to July 1949. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Waco, Texas. In December 2012, the Veteran testified before the undersigned Acting Veterans Law Judge during a Travel Board hearing. In February 2013, the Board remanded the claim for further development. In May 2013, the Board requested a Veterans Health Administration (VHA) opinion. The requested opinion was received in June 2013. The Board has reviewed the Veteran's Virtual VA file and has considered all of the additional relevant records contained therein in the decision below. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Residuals of a TBI, to include headaches and vision problems, were not manifested during his active military service and are not shown to be causally or etiologically related to his active military service. CONCLUSION OF LAW A TBI was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. Here, the Veteran was sent a letter in January 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA, and available private treatment records as well as examinations. Moreover, his statements in support of the claim are of record, including testimony provided at a December 2012 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. In February 2013, the Board remanded the claim for the securing of private treatment records. In a letter dated that same month, the RO requested that the Veteran provide a release of information for the identified physician in order to request the records. The Veteran did not respond to the request. The Veteran has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The RO made an effort to obtain the records, and the Veteran did not cooperate. The mandates of the February 2013 Board remand have been substantially complied with, and there is no reason to remand the claim for further development. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, the Veteran a VHA medical opinion was obtained. A review of the VHA opinion shows that the opinion and findings are adequate for appellate review in that they considered the medical evidence of record, the history provided by the Veteran and the physical examination of the Veteran. The Board notes that the RO made several requests to obtain records from the National Personnel Records Center (NPRC). However, no records were located. A formal finding of unavailability of records was made in December 2008. The United States Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, the Board finds that the VA has satisfied its duties to notify and to assist the claimant in this case. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). In addition, the Veteran was afforded a VA examination, and a VHA specialist opinion was obtained. A review of the VA examination report and the VHA opinion show that the opinions and findings are adequate for appellate review in that they considered the medical evidence of record, the history provided by the Veteran and the physical examination of the Veteran. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board must also analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). As previously noted, service treatment records are unavailable. Morning reports show that he went to sick call in February 1948, but do not show what he was treated for. In this case, the Veteran, in statements and through testimony at the hearing, has alleged that he was injured in a parachute jump during adverse weather conditions in Japan in February 1948. According to the Veteran, the jump left him dazed; and with loud noise in his ears and impaired vision to the point that he could only distinguish outlines of objects or people. The Veteran was unable to navigate without assistance from another soldier, and a severe headache was evident at the time. After going to the camp dispensary for four days, the Veteran was transferred first to a field hospital, and then to a medical hospital in Tokyo for two months. He reportedly received medical attention for his hearing and vision problems, as well as for his severe headaches. His vision returned to some degree, and the Veteran was fitted with prescription glasses. Subsequently, the Veteran then was transferred to a field artillery battalion in Kentucky. He reportedly passed out in formation, and was hospitalized for three weeks with headaches and dizzy spells. The Veteran was transferred to a hospital in Michigan, until his discharge from active duty in July 1949. An April 1948 certificate from a military physician reports that: (1) the Veteran was injured on February 10, 1948; and (2) that the Veteran had an eye condition which will heal very slowly. The physician also opined that the Veteran should make no more parachute jumps. More recent treatment records show complaints of persistent headaches. In July 1997, the Veteran reportedly was told that he had signs of macular degeneration. In April 2004, the Veteran suffered an acute neurologic event (transient ischemic attack). MRI scans of the Veteran's head at the time revealed age-related atrophy and small vessel disease. In May 2009, the Veteran's treating physician for the period from 1988 through 2004, Dr. Warren T. Longmire, Jr., M.D., noted the Veteran's medical history; and opined that the Veteran's nightmares, headaches, and visual changes are due in large part to his severe head injury as a paratrooper. In July 2012, a VA examiner noted the Veteran's medical history. Examination in July 2012 revealed no cognitive impairment and no psychiatric manifestations. The Veteran's vision was normal with corrective eye glasses. There were no abnormal physical findings related to traumatic brain injury. The examiner opined that there was no current clinical evidence of traumatic brain injury, to include as incurring in or caused by parachuting or injury that occurred in February 1948. The examiner also found that the Veteran's headaches, dizziness, sleep disturbance, and impaired memory were not related to traumatic brain injury. In support of the opinion, the examiner reasoned that symptoms of traumatic brain injury resolve within 6 to 18 months, as noted in Department of Defense guidelines; and that the Veteran was employed full-time post-service for 38 years without any problems. The examiner did not, however, comment on the May 2009 opinion. A VHA medical opinion, provided by a neurologist, of June 2013 notes the Veteran's in service injury. He notes the Veteran's post service history and the two medical opinions of record, the May 2009 private opinion and the July 2012 VA examiner's opinion. He noted the pertinent history of treatment within the treatment records and concluded that it is unlikely (less than 50% probability), that the residuals form a TBI including visions and headaches, that would have had their onset in service from a parachute jump in 1948, are present today and that those complaints put forth as existing now cannot be related to his active duty. He reasoned that the vision problems and headaches both abated for years after his discharge. His more recent vision problems are due to macular degeneration. His headaches at the time of the incident could have been related to TBI and or repeated post-lumbar puncture (LP) headaches. Moreover, a head injury had not been shown to be present on MRI. Initially, the Board notes that despite the absence of service treatment records, the Board accepts the Veteran's accounts of an in-service head injury for purposes of this decision. Therefore, the questions remaining are whether he has a current disability and, if so, whether such disability is due to the head injury in service. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for current residuals of a TBI, to include headaches and vision problems. The Board finds the most probative evidence of record to be the June 2013 VHA medical opinion which was provided by a neurologist. The VA neurologist had the benefit of reviewing the entire claims file, to include the post-service medical evidence and the two conflicting medical opinions, the May 2009 private physician's opinion and the July 2012 VA examiner's opinion, when drafting his June 2013 VHA medical opinion. The physician specifically found there was no relationship between the current vision problems and headaches, and the TBI in service, and the headaches and vision problems are not otherwise related to service. Indeed, he noted that the current vision problems are due to macular degeneration. Furthermore, he noted that while the headaches around the time of the injury could have been related to the TBI, the current headaches are not related to the TBI. He explained that the vision problems and headaches that existed at the time of the TBI resolved and were abated for years after his discharge from service. Moreover, despite accepting the accounts of a head injury in service, he noted that a post-service MRI did not show an injury to the head. In regards to the private medical opinion of May 2009, wherein the Veteran's treating physician opined that the Veteran's headaches, nightmares and visual changes are related to the TBI in service, the Board finds the opinion is inadequate. The physician failed to provide a reasoning for the opinion. As noted, in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that most of the probative value of a medical opinion comes from its underlying reasoning. Id. at 304. "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Id., citing Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). The May 2009 opinion is a recollection of facts with a conclusory statement. This is an inadequate opinion, and the Board affords it little probative weight. Regarding the July 2012 VA medical opinion, the Board had determined that it was not adequate in that it did not consider the May 2009 private opinion and therefore, requested a VHA medical opinion in May 2013. As the Board had previously determined the July 2012 VA opinion was not adequate, the Board affords it little probative weight. In contrast, the VHA medical opinion of June 2013 was based on a review of the record, consideration of both the May 2009 private opinion and July 2012 VA examination, and a history of the Veteran's experiences in service. The VHA doctor provided an opinion and thorough reasoning for the opinion. The doctor cited the relevant and pertinent findings in the medical records to support the opinion provided, and was based on an accurate factual basis. As previously stated, the Board affords it great probative weight. Regarding the Veteran's lay assertions, although the Veteran is competent to describe symptoms, he is not competent to comment on the medical issue of whether the noted symptoms are caused by the in-service TBI. In so finding, the Board acknowledges the Court's holding that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. The instant case, however, involves a higher level of medical complexity, with numerous symptoms potentially attributable to different causes, and thus extends beyond a simple, lay-observable, cause and effect relationship. Thus, in this case the Veteran is not competent to opine on the question of etiology and, therefore, a statement from him asserting a relationship between residuals of a TBI, to include headaches and visual defects, and service do not constitute competent medical evidence on which the Board can make a service connection determination. To the extent that he is now claiming continuity of symptomatology of the headaches, the Board finds the assertions not to be credible. Indeed, while the Veteran is competent to report symptomatology, his accounts have not been consistent. While some treatment records note he reported headaches since service, at the July 2012 VA examination, he did not report a continuity of headaches since service. Moreover, and significantly, there is a complete absence of any documentation of treatment for headaches for close to 50 years since separation from service. Considering the totality of the evidence, the Board finds that the assertions of continuity of symptomatology are not credible. In conclusion, the Board finds that the preponderance of the competent evidence is against the claim for service connection for residuals of a TBI. Because the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. Therefore, the Board concludes that service connection for residuals of a TBI with cognitive deficits is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2013). ORDER Service connection for residuals of a traumatic brain injury, to include headaches and vision problems, is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs