Citation Nr: 1333811 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 13-01 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active service from May 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. On September 23, 2013, the Veteran testified at a Board hearing before the undersigned, via video conferencing. A transcript of that hearing has been associated with the record. After the case was certified to the Board, the Veteran submitted additional evidence to the Board in the form of private medical evidence that was not first considered by the RO. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2013). The Board notes that the Veteran and his representative have characterized his claim as one of service connection for a TBI. Specifically, the Veteran contends that during basic training, he suffered a high fever and heat stroke, which resulted in certain cognitive impairments and dementia. As a preliminary matter, the Board notes that a high fever or a heat stroke, even if resulting in some damage to the brain, would not be classified as a TBI, which has been defined as "an injury to the brain from an external force that results in immediate effects such as loss or alteration of consciousness, amnesia, or sometimes neurological impairments." 73 Fed. Reg. 54693, 54694 (September 23, 2008). However, because the RO has adjudicated the claim as one for service connection for a TBI, the Board will maintain that classification, but will consider, as part of that claim, whether the Veteran suffers from any current residuals, to include any cognitive impairments and/or dementia, related to an in-service fever and/or heat stroke. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (201338 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's currently diagnosed dementia has not been shown to be related to his military service, nor has it been shown that the Veteran has any other residual disability resulting from a fever sustained in service. CONCLUSION OF LAW The Veteran does not have a residual disability that is the result of a disease or injury in, or aggravated by, active duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receiving the Veteran's claim of service connection for a TBI, the RO sent to him a letter dated in March 2012 wherein he was notified of the evidence required to substantiate that claim. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection, such as treatment records related to the claimed condition and statements from persons who have witnessed how the claimed disability has affected him. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the March 2012 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board concludes that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), VA treatment records, private treatment records, VA examination reports, and lay statements from the Veteran and his wife. Neither the Veteran nor his representative has suggested that further assistance is necessary or that there exists outstanding relevant evidence. The Board also finds that the medical evidence of record is adequate for the Board to rely upon in this case. The Veteran has been afforded a VA examination in connection with the claim decided herein. A review of the examination report reveals that the examiner did not have access to all relevant medical records at the time of examination. However, the claims folder was later forwarded to the examiner who was again asked to render an opinion regarding whether the Veteran had a current disability as a result of an in-service fever. The Board finds that the examiner considered the lay contentions of the Veteran and the private medical evidence of record and that the opinion is supported by a detailed rationale. The Board finds that the examination report and addendum opinion, along with the other evidence of record, allows for the Board's evaluation of the Veteran's claim to be a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (describing adequacy of medical examinations. The Board thus concludes the Veteran was provided with an adequate medical examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). II. Analysis The law provides that service connection may be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West. 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). As noted in the introduction, the Veteran has alleged suffering from dementia and other cognitive impairments as a result of a high fever and/or heat stroke sustained in service. Specifically, the Veteran has stated that during basic training, he was required to march for several miles to a field where he conducted training exercises in fox holes filled with mud; he then marched back to the parade field on base. The Veteran indicated that the next thing he remembered was waking up in the hospital, covered with ice. He stated that he spent about a month in the hospital, during which time he sustained a fever as high as 105.4 degrees Fahrenheit. He alleged that during his hospital stay he was unable to physically write letters and that since that incident, he has had problems with weakness, and more recently with directions. The Veteran has also indicated that he was diagnosed as having dementia in 1953 and his wife testified that the Veteran has had problems with improper word usage and pronunciation for as long as they had been married, which was then 36 years. A review of the Veteran's STRs shows that on June 28, 1953, the Veteran was admitted to the Army Hospital at Camp Chaffee, Arkansas. At that time, he was complaining of weakness, diffuse muscle aches and pains, and anorexia since the previous evening. No cough, sore throat, or chest pain was noted. His temperature was recorded to be 103 degrees and his throat showed some mild inflammation. The following day, the Veteran complained of headaches and was noted to have a stiff neck and back. His fever remained above 100 degrees. A neurological examination revealed no abnormalities, save for a mild left facial weakness, which the Veteran indicated had been noted on previous occasions. There was no evidence of a central nervous system infection. On June 30, the Veteran's temperature was noted to be as high as 105.4 degrees and he had a productive cough and associated chest pain. A chest examination was negative, and an assessment of probable pneumonia was recorded. Subsequent x-rays confirmed pneumonia, for which the Veteran was treated. His temperature dropped below 100 degrees as of July 1 and a repeat chest x-ray on July 9 showed almost a complete clearing. The Veteran was noted to be asymptomatic and was determined to be ready for duty. He was discharged from the hospital on July 13, 1953. The remaining STRs are essentially negative, save for treatment of ringworm in August 1953 and of a fever in April 1955. The Veteran's April 1955 separation examination reveals that he was clinically evaluated as normal, to include neurologically, and a chest x-ray was normal. The only note stated that the Veteran had been hospitalized at Camp Chaffee for 14 days in 1953. In June 1955, the Veteran applied for VA disability compensation, seeking service connection for pneumonia, nosebleeds, fatigue, and shortness of breath. A request for records was made to all hospitals, infirmaries, and aid stations where the Veteran may have received treatment, but no additional records were returned. A neuropsychiatric examination was conducted in July 1955, the report of which revealed the Veteran's complaints of feeling weak and tired. He indicated having nosebleeds quite often, which had persisted since 1952. A neurological examination was essentially negative. Mental status examination showed that the Veteran appeared self-conscious and ill at ease, but that he was well oriented in all spheres, had no evidence of memory impairment, and demonstrated relevant and coherent answers to all questions. The diagnosis was asthenic reaction and the examiner suggested a complete work-up to ascertain the cause of the Veteran's nosebleeds and chronic fatigue. In a September 1955 rating decision, the Veteran was denied service connection for pneumonia residuals. The claims folder is then devoid of any documents or evidence until June 2008, when the Veteran filed for VA disability compensation for hearing loss and tinnitus. In support of his current claim, the Veteran submitted an examination report and medical opinion from C.K., D.O., a private physician with the Ellis Clinic. The report records the Veteran's statement that on a hot day in June 1953, during his period of basic training, he and several other trainees stayed in their fox holes for a period of time, after which he felt hot and dizzy and could only see dust, sand, and smoke. Dr. C.K. noted that the Veteran was subsequently hospitalized for 14 days, diagnosed as having pneumonia, and sustained a prolonged fever, with a high temperature of 105.4 degrees. The Veteran was reportedly unconscious for 44 hours, and remembered being severely cold with violent shaking, and being bathed in ice. It was noted that since that incident, the Veteran had had severe difficulty with speech, concentration, memory, attention, ability to plan, and irritability. Dr. C.K. diagnosed the Veteran as having a TBI due to elevated temperature causing brain damage and stated that the Veteran's high temperature caused brain injury. The Veteran was then afforded a VA contract (QTC) examination in March 2012. The Veteran relayed to the examiner that during basic training, he had what he believed was a heat stroke and was unconscious for more than 24 hours. He indicated that clinicians thought he may have had meningitis, but it was determined that he did not. The examiner stated that the outcome of that event seemed to be dementia due to a heat stroke and opined that it was at least as likely as not that the dementia was a result of the in-service heat stroke. Notably, the examiner indicated that the Veteran's complete claims folder was not available for review as part of the examination. In July 2012, the QTC examiner was provided the Veteran's claims folder, with a request to review specific evidence of record and provide an opinion regarding the likelihood that the Veteran's TBI was related to service, to specifically include the high fever sustained in June 1953. The examiner noted the Veteran's contention that he was diagnosed as having dementia in 1953, which the examiner stated was not evidenced by the record. The examiner noted that the Veteran's STRs failed to reveal any loss of consciousness and demonstrated that the Veteran had had a complete recovery from his fever/heat stroke and pneumonia. The examiner stated that although current evidence supported a diagnosis of dementia, after reviewing the Veteran's complete file, to specifically include all STRs, it was his opinion that the Veteran's current dementia was less likely than not attributable to his in-service fever/heat stroke or pneumonia. As support for his opinion, the examiner pointed out that the Veteran was asymptomatic after the incident and completed his remaining service obligation without incident. In a statement dated in September 2013, J.E., M.D., another private physician with the Ellis Clinic, discussed the fact that the brain is very sensitive to high temperature, stating that it takes very little heat exhaustion or heat stroke to cause brain damage. Dr. J.E. indicated that having a temperature over 104 degrees would have rapidly caused damage to the Veteran's brain cells, noting that immediately after the episode the Veteran began having an acute onset of TBI symptoms, to include short term memory problems, difficulty with speech, problems concentrating, and irritability. Dr. J.E. went on to state that another complication of heat stroke is shock caused by the sudden loss of blood flow, which makes the brain even more sensitive to sustaining damage. Dr. J.E. found that the Veteran's pneumonia and fever resulted in him going from heat exhaustion to heat shock, which progressed to more serious shock, brain damage, and organ failure. Dr. J.E. stated that the Veteran had "recovered from the organ failure he was having at the time of his high temperature and unconsciousness," but unfortunately sustained permanent brain damage. Dr. J.E. also enclosed a printout regarding heat emergencies. At the outset, the Board finds that it is clear that the Veteran suffered an event in service, as his STRs document treatment for pneumonia and show that he had a prolonged fever, with his temperature reaching as high as 105.4 degrees. The Board also finds no reason to question the diagnosis of dementia. Thus, the question is one of nexus. See Davidson, supra. In the instant case, the Board finds that although the Veteran has submitted private medical evidence supportive of an association between his current dementia and high fever in service, the probative value of that evidence is undermined by the information contained in the Veteran's STRs and his own statements and submissions. Notably, both Drs. C.K. and J.E. discuss that the Veteran was unconscious for some period of time, a fact which is not supported by the evidence of record. Further, the Veteran has reported that he was hospitalized immediately after his training exercise. The Veteran's STRs, however, show that at the time that he was admitted to the Army Hospital, he was complaining of weakness, diffuse muscle aches and pains, and anorexia since the previous evening, which would indicate that the Veteran did not present to hospital straight from his training exercise. Moreover, while Dr. J.E. noted that immediately after the pneumonia/high fever episode, the Veteran began having problems with short term memory, speech, concentration, attention, executive function, ability to make plans, and irritability, that assessment appears to be based on nothing other than the Veteran's own statements, as recorded by Dr. C.K.. However, there is nothing in the Veteran's STRs to indicate that the Veteran experienced any such problems and no such problems were indicated at the time of the July 1955 examination. Indeed, both at separation from service and in July 1955, the Veteran was clinically evaluated as normal and there was no evidence of any neurologic abnormalities. Further, the July 1955 examination report specifically indicated no evidence of memory impairment. The Board notes that although a Veteran is competent to report on symptoms capable of lay observation, in the instant case, the Board finds the fact that evidence dated during and shortly after service contains contrary indications regarding the presence of these later-reported symptoms weighs against a finding that the Veteran indeed began to experience such symptoms immediately after his pneumonia/high fever episode. Also probative is the fact that during his September 2013 hearing, the Veteran discussed experiencing only weakness after his period of hospitalization. As to his wife's statement regarding her observations of the Veteran's difficulties with speech and pronunciation since they were first married, by her own account they were not married until more than 20 years after the Veteran was separated from service. As such, her testimony cannot serve to establish the presence of such symptomatology since service. Contrary to the private clinician's opinions, the QTC examiner, upon full review of all available medical records, determined that it was less likely than not that the Veteran's dementia was related to the fever incurred in service. The examiner pointed out that when he returned to duty, the Veteran was considered to be asymptomatic and that he thereafter completed nearly two years of service without further incident. The examiner further discussed why his latter opinion differed from his first, in that the former opinion indicating dementia due to heat stroke, was rendered without review of relevant medical records. Overall, the Board finds that the evidence of record preponderates against a finding of service connection in this case. While the Board does not refute the fact that there may be a correlation between dementia and a prolonged fever/heat stroke, the probative evidence of record fails to suggest that the Veteran indeed sustained any permanent brain damage as a result of his June 1953 fever. The Veteran's statement, as recorded by Drs. C.K. and J.E. regarding symptoms experienced shortly after being returned to duty, the presence of which serve as the basis for their positive nexus opinions, is contradicted by the evidence of record, to include the Veteran's separation and July 1955 VA examination reports. The Board also notes that the Veteran failed to mention experiencing any such symptoms on his June 1955 application for compensation, then reporting only nosebleeds, fatigue, and shortness of breath, and similarly did not discuss the presence of such symptoms in or after service during his September 2013 hearing. In the instant case, the lack of evidence suggesting that the Veteran indeed experienced any such symptoms, coupled with the fact that the evidence specifically indicates the absence of some symptoms, such as memory problems or neurologic symptoms, leads the Board to conclude that the Veteran did not experience problems with short term memory, speech, concentration, attention, executive function, ability to make plans, and/or irritability shortly after the pneumonia/high fever incident in service. As the private opinions are seemingly based on the presence of such symptoms at that time, the probative value of such is significantly diminished. See Reonal v. Brown, 5 Vet. App. 458, 461(1993) (medical opinion based on an inaccurate factual premise is not probative). On the other hand, the QTC examiner, in his addendum opinion, concludes that the Veteran's current dementia is not related to his fever in service because the evidence shows that the Veteran was asymptomatic at the time that he was returned to duty. The Board finds that the QTC examiner's opinion, coupled with the fact that the Veteran was neurologically evaluated as normal in 1955 and that the record is completely devoid of any medical evidence until June 2008, and of any evidence related to dementia until he filed his claim for such, preponderates against finding that there is an association between the Veteran's current dementia or related or otherwise diagnosed cognitive impairments and service. See Davidson, supra (service connection requires evidence of a nexus between the claimed in-service disease or injury and the present disability); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). For the foregoing reasons, the Board finds that the claim of service connection for residuals of a TBI must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. However, as the greater weight of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for residuals of a TBI is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs