Citation Nr: 1334897 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-03 362A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a cranial disability, to include headaches, amnesia, and traumatic brain injury (TBI). 2. Entitlement to service connection for a psychiatric disability, to include depression, schizophrenia not otherwise specified (NOS), and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Michael L. Varon, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1979. These matters initially came before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in New York, New York. In that decision, the RO denied the Veteran's petition to reopen a claim for service connection for amnesia, as new and material evidence had not been submitted, and denied entitlement to service connection for residuals of a head injury, migraines, depression, and PTSD. The Veteran testified before the undersigned at an April 2010 hearing at the RO (Travel Board hearing). A transcript has been associated with his claims folder. In August 2010 and September 2011, the Board remanded these matters for further development. In December 2012, the Veteran, accompanied by his representative, again testified at a hearing before the undersigned at the RO. A transcript of these proceedings has also been associated with the claims file. In addition to the paper claims file, the Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. FINDING OF FACT A cranial disability, to include TBI, and an acquired psychiatric disability, to include psychotic disorder NOS and depressive disorder NOS, have not been shown to have had their onset in service, within one year of service, nor are such disabilities otherwise a result of a disease or injury in active military service. CONCLUSION OF LAW A cranial disability, to include TBI, and an acquired psychiatric disability, to include psychotic disorder NOS and depressive disorder NOS were not incurred in or aggravated by the Veteran's active military service, nor are such disabilities presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may 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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters dated in March and October 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, 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 claims. This duty includes assisting him 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. All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at April 2010 and December 2012 hearings before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused 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 claims. The Veteran's service medical records are not of record. Destruction of service medical records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service medical records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). In March 1994 the RO requested the Veteran's service treatment records from the service department. In May 1994 the National Personnel Records Center (NPRC) advised the RO that the records could not be located and asked the RO to complete an enclosed NA form 13075. In September 1994, the RO returned a completed Form 13075 to the NPRC. In March 1995, the RO asked the Veteran to provide any service medical records in his possession. The same month the RO made another request for service treatment records through the NPRC. In January 2007, the RO again asked for any service treatment records in the Veteran's possession. No records were received in response to these requests. At his hearings the undersigned asked the Veteran questions with regard to the locations of in-service treatment in hopes that he could provide information that would permit a search for such records, but the Veteran was unable to recall the locations or specific dates of such treatment. After the first Board hearing, the record was held open for 60 days so that the Veteran and his attorney could make additional efforts to obtain service treatment records. In May 2010, the Veteran's attorney wrote that he believed the Veteran's service treatment records were out of reach and he was withdrawing any argument with regard to the RO failure to assist the Veteran in obtaining the records. It does not appear that there are further actions that would be reasonably likely to yield service department records. The Board's April 2010 remand was for efforts to obtain records from the Social Security Administration and afford the Veteran an examination. In October 2010, SSA reported that it had no medical records on file, or could not locate a medical record. The Veteran was also afforded a VA examination in October 2010, but as discussed below the resulting opinion was found to be inadequate. In September 2011, the Board remanded the Veteran's claim in order to obtain an adequate examination and opinion. In March 2012, the Veteran received a new VA examination, but again there were deficiencies in the resulting opinion. The Board remedied these deficiencies by obtaining an expert medical opinion through the Veterans Health Administration (VHA). 38 C.F.R. § 20.901(a) (2013). The Board has thus insured substantial compliance with its remand instructions. Cf. Stegall v. West, 11 Vet. App. 268 (1998). The VHA neurologist reported that she could not provide an opinion on some aspects of the claim without resort to speculation. She provided reasons for this conclusion and indicated that her inability was based on the state of the evidence. Her explanation is; therefore adequate. Jones v. Shinseki, 23 Vet App 382 (2010). Her opinions with regard to the remaining aspects of the claim reflected considerations of the entire history, including the Veteran's reports, and was supported by detailed reasons. It is; therefore adequate. For the above reasons, no further notice or assistance is reasonably likely to assist the Veteran in substantiating his claims. 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). The Court has held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that could substantiate the claim but may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Court interpreted the requirement to identify the issues as meaning that the "hearing officer" identify outstanding elements of the claim that remain to be substantiated. Bryant v. Shinseki, at 497. In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claim currently on appeal. The missing elements of the claim were discussed. As such, the Board finds that, consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection generally requires 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 disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). Service connection is presumed for chronic diseases, such as psychosis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection will be conceded for a chronic disease identified in service and at any time thereafter, no matter how remote. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Medical records reveal that the Veteran has been diagnosed as having various psychiatric disabilities. For example, an October 2008 examination report from the Harlem Vet Center (Vet Center) indicated a diagnosis of depression. Also, the Veteran has reported on numerous occasions that he has experienced memory problems and headaches and the October 2008 examination report from the Vet Center revealed that he was diagnosed as having TBI. The Veteran has testified that he received a head injury in service when he was struck by a telephone pole; and contends that his current psychiatric, memory, and headache problems are related to this injury. His service treatment records are unavailable, but he is competent to report the in-service injury. Given the absence of service treatment records and the heightened duties their absence entails, the Board resolves reasonable doubt in his favor and finds that an in-service injury has been demonstrated. In addition to the reported in-service head injury, there is evidence of a post-service head injury. A July 1983 examination report from Metropolitan Hospital Center indicates that the Veteran was hit in the head while involved in a fight and that he was treated for headaches and dizziness. It was recorded that the Veteran denied a past medical history and that no past medical history could be recalled. When seen for unrelated complaints at Metropolitan Hospital in October 1992, he was described as alert and oriented. A neurologic examination was nonfocal. At VA examinations in March 1994, that the Veteran reported that his in-service head injury involved a mine explosion; and reported a 20 year history of memory problems. He did not mention being struck by a telephone pole. At a psychiatric examination he elaborated that he had stepped on a mine while in service. He reported periods of amnesia. He was diagnosed as having psychogenic fugue that may well have begun at about the time of his discharge from service. At a neurologic examination the same day, he reported episodes of disorientation lasting 4 to 5 days that began in 1975 after his wife and daughter left him. In a questionnaire completed in April 1994, the Veteran reported that he had worked for the Federal government in "Command and Security" from 1989 to 1990. The Veteran was afforded a VA traumatic brain injury (TBI) examination in October 2010. The physician who conducted the examination did not diagnose the Veteran as having any psychiatric or cranial disabilities and opined that it would be mere speculation to diagnose a TBI as a result of an in-service injury. She reasoned that there was no documentation of any treatment for an in-service head injury. The October 2010 VA examination was found inadequate by the Board in September 2011 because the examiner did not consider the Veteran's reports of an in-service head injury and provided an opinion that was based entirely on a lack of written documentation of such an injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, the examiner did not acknowledge or discuss the psychiatric and cranial disabilities documented in the Veteran's medical records. The Veteran, through his representative, provided a favorable opinion from Edwin Robbins, M.D., who is a clinical professor of psychiatry at New York University Medical Center and Albert Einstein College of Medicine, and a retired associate director of the Department of Psychiatry at Bellevue Hospital. The physician did not, however, acknowledge the July 1983 reports of a post-service head injury. Additional examinations of the Veteran were afforded in March 2012. In the psychiatric examination, the Veteran as having diagnosed with psychotic disorder NOS and depressive disorder NOS. After examination, the Veteran was noted to be a poor historian that gave contradictory statements as to past noted symptoms and history. Onset of the Veteran's symptoms was found to be unclear and the examiner stated that an opinion could not be provided without resort to mere speculation. The neurological examiner diagnosed the Veteran has having TBI, but found that this condition was less likely as not incurred in service. Neither examiner commented on the report of Dr. Robbins. The March 2012 examinations were inadequate because one examiner provided no reasons for the inability to provide an opinion without resort to speculation. Cf. Jones v. Shinseki, 23 Vet App 382 (2010). The neurologic examiner did not provide reasons for the opinion that the neurologic disability was unrelated to service. Both examiners failed to consider a complete history. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In May 2013, the Board obtained an expert medical opinion from a neurologist through the VHA. The neurologist indicated that the Veteran's claims file had been reviewed, discussed the medical records in detail. The examiner was asked whether the Veteran has current residuals of a TBI or psychiatric disability as a result of a TBI. The examiner answered this question by stating that the record showed that the Veteran had symptoms of headache, memory lapses, cognitive impairment and possible seizures, which could be residual symptoms of TBI. However, the examiner stated that these symptoms were not specific to TBI and could be secondary or confounded by other causes which include, but are not limited to, primary seizure disorder (i.e., epilepsy), alcohol or other substance abuse, and/or psychiatric disorders not secondary to TBI. The examiner then found that it was not at least as likely as not (50 percent probability or more) that any current TBI residuals or psychiatric disability had its onset in service, was related to the Veteran's reported in-service head injury, or was otherwise the result of a disease or injury in service. The examiner commented on the Veteran's report of sustaining a head injury in service, noting that the Veteran experienced a significant decline in his cognitive status sometime around 2007-08 and that such a precipitous decline occurring within the past 6-8 years could not be attributed to a remote TBI or disease during his service years in the 1970s. In this regard, the examiner noted that the Veteran was apparently able to hold down a job for a few years after his military discharge. The examiner noted that the Veteran had complaints of headaches and memory lapses dating as far back as 1994. The Veteran also reported to a VA examiner that he had memory lapses as far back as the 1970s, when his wife left him. However, due to inconsistencies in the Veteran's accounts of his medical history, discrepancies in the record (which were detailed in the report), and the presence of a head injury in 1983, the examiner found that she could not opine regarding whether the Veteran symptoms began in the military. With respect to the 1983 head injury, the examiner noted that this could have given rise to headaches, memory complaints, and a post-traumatic seizure disorder and also suggested that the Veteran was at high risk for trauma, citing documents showing that he had been treated for stab wounds, scalp laceration, hand injuries, and mandibular fracture. The examiner also commented on the diagnosis of TBI in a December 2008 psychosocial assessment at the Harlem Vet Center. An impression of TBI, depression, and a seizure disorder was apparently based on the Veteran's verbal account of history, despite the examiner's notation that the Veteran was a poor historian. No neurological, cognitive, or psychological examination was performed. As such, the May 2013 examiner regarded this assessment as an initial impression. Finally, the examiner also commented on the positive opinion of Dr. Robbins, finding the report deficient in failing to conduct relevant diagnostic tests, such as MRI or EEG, that may have been helpful in assessing cognitive disorders, and in failing to evaluate for other potential causes of the Veteran's disorders. Analysis As noted the record substantiates current TBI residuals, and a psychiatric disability, including a psychosis. The requirement for a current disability has been established. The Veteran is competent to report in-service injuries, and the Board has a heightened duty to consider his reports in light of the absence of service department records. The Veteran has; however, provided highly variable reports of the in-service injuries. He has variously reported that his head injury resulted from stepping on a land mine, being struck by a telephone pole, or when his wife and daughter left him. He apparently reported no in-service injury when treated in 1983, even though such a history would have been highly relevant. Hence, his reports of in-service injury are not deemed credible. Other than his reports, there is no evidence of in-service injuries. Inasmuch as the evidence is against finding an in-service injury, the claims for service connection based on the residuals of such an injury must fail. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (absence of any one of the elements for establishing service connection results in the claim being denied). Even if an in-service injury could be conceded, the evidence is against a link between the current disabilities and such an injury. The Veteran's testimony can be read as reporting a continuity of symptomatology, but contemporaneous treatment records do not show any reports of ongoing symptomatology extending back to service. This evidence combined with the variability of his reports renders them incredible. Hence, the evidence is against finding a continuity of symptomatology. Moreover, with the exception of psychosis, the conditions for which service connection is claimed are not chronic diseases, and a nexus could not be established on the basis of continuity of symptoms. Walker v. Shinseki. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). With the exception of Dr. Robbins, none of the competent medical evidence indicates a positive nexus to military service. Dr. Robbins opinion is of limited probative value because he relied upon a history the Board has found to be incredible, and the opinion did not consider intervening injuries. The March 1994 psychiatric opinion provides some support for a link between a current psychiatric disability and service, but the opinion was equivocal, and was based on a history that the Veteran contradicted in a different examination on the same day. It too is of little probative value. The VHA opinion weighs neither for nor against a link between current psychiatric symptoms and service, because the examiner could not provide an opinion without resort to speculation; but the examiner did provide a definitive opinion with sound reasons for saying that other claimed manifestations of a head injury were less likely than not related to service. The Veteran has expressed a belief that his current symptoms are related to in-service injuries, but given the multiple post-service injuries and confused history, it would require medical expertise to say that the current disabilities are related to such an injury (even if it could be found that the injuries actually occurred). Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007). In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims. Because the preponderance of the evidence is against the claims, reasonable doubt does not arise and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a cranial disability, to include headaches, amnesia, and traumatic brain injury (TBI), is denied. Service connection for a psychiatric disability, to include depression, schizophrenia not otherwise specified (NOS), and posttraumatic stress disorder (PTSD), is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs