Citation Nr: 1337002 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-35 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a residuals of a head injury. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Board notes that the issue of entitlement to service connection for enlarged prostrate and bladder problems and the issue of entitlement to service connection for hearing loss, left ear, with tympanic membrane (claimed as eardrum) scarring were adjudicated in the June 2010 Statement of the Case (SOC), but the Veteran only appealed the issue of service connection for residuals of a head injury in his August 2010 VA Form 9; therefore, the only issue before the Board is the issue of entitlement to service connection for the residuals of a head injury. FINDING OF FACT The Veteran does not currently have residuals of a head injury manifested by headaches and dizziness that is related to his active service. CONCLUSION OF LAW Entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. § 3.102 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2013). "To establish a right to compensation for a present disability, a Veteran 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran reports that he sustained a head injury in a motor vehicle accident while on active duty training in July 1984. He contends that due to his head injury, he developed dizziness and headaches that have continued since 1984, nearly 30 years ago. As an initial matter, the Board notes that the Veteran's service treatment records are silent for any complaints or treatment for a head injury, dizziness, and headaches. However, treatment records from the Veteran's service in the United States Coast Guard Reserve contain an emergency care record dated July 18, 1964 that shows treatment for a "small area top of head." The Veteran also complained of headaches and dizziness at that time. He was diagnosed with a scalp laceration and a skull contusion. In addition, a July 1984 Sick Slip shows the Veteran was in the line of duty at the time he received this injury. Thus, the Board acknowledges the Veteran's motor vehicle accident and the injuries sustained therein while on active duty. As such, the primary issues in this case are whether the Veteran has a current disability and whether such a disability is related to the his active service. The evidence of record after the motor vehicle accident does not demonstrate the Veteran's symptoms associated with residuals of a head injury, including headaches and dizziness. First, a November 1985 annual examination report shows the Veteran had no scars and his head was clinically evaluated as normal. At that time, the Veteran himself did not report dizziness, but he did indicate he had a previous head injury. The examiner noted that the Veteran's sutures were extracted without problems. Moreover, in March 1986, the Veteran confirmed that there were no interval changes since the annual physical examination in November 1985, providing highly probative factual evidence against his own claim. After 1985, the record is silent for treatment, complaints, or diagnoses related to residuals of a head injury. Indeed, on his VA Form 21-526, the Veteran indicated he only received treatment in July 1984 for his head injury. As will be discussed below, the Veteran was notified of his and VA's responsibility to provide evidence to substantiate the claim. He was specifically asked to identify treatment for his head injury and associated symptoms, but he did not respond to VA's letter nor did he submit any evidence in support of his claim to indicate he even has this problem. Moreover, such a prolonged period without medical complaint after service can be considered, among other factors, in the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In light of the above, the Board finds the Veteran's statements asserting that he injured his head during service and has had dizziness and headaches since that time are outweighed by other more probative evidence of record. First, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at his 1985 annual examination, he denied any history of dizziness, breaking the causative chain between the injury and the current alleged problems (the central argument that he has had this problem since the injury is refuted by his own statements). Moreover, the examination did not include any finding of a residuals of a head injury to include dizziness and headaches. The Veteran's in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Moreover, the Board has considered the Veteran's contention that due to his motor vehicle accident, he developed headaches and dizziness that have continued since the accident. The Veteran is certainly competent to report what he experiences through his senses, to include having a history of dizziness and headaches. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to address complex medical questions, such as diagnosing an underlying head injury with residual symptoms of headaches and dizziness. Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's opinion that he currently has a disability manifested by dizziness and headaches due to his 1984 motor vehicle accident is not competent evidence and his statement that he has had such problems since 1984 is not supported by his own 1986 statement. As such, there is no competent evidence of record showing that the Veteran has been currently diagnosed with a disability manifested by dizziness and headaches. Moreover, even accepting the Veteran's reported symptomatology, the evidence does not demonstrate a link between the Veteran's current dizziness and headaches and a motor vehicle accident that occurred almost thirty years ago. Accordingly, the Board finds that a preponderance of the evidence is against the claim for entitlement to service connection for residuals of a head injury, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert, 1 Vet. App. at 49. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present appeal, the VCAA duty to notify was satisfied by an October 2008 letter. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, an examination is not warranted. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, there is simply no objective evidence of a current disability that is associated with an in-service injury or event. As noted above, there is even today no objective evidence of a current disability. However, even if the Board assumes such a problem now exist; the Veteran's owns statements provide some evidence against his current claim that he has had this problem since the injury cited above. Hence, under McLendon, the Board is not required to have the Veteran undergo a VA compensation examination for a medical nexus opinion. Moreover, despite the October 2008 VCAA letter, the Veteran did not provide any additional evidence to establish he has a current disability related to active service, including the 1984 motor vehicle accident. In this regard, it is important for the Veteran to understand that the "duty to assist" is not a one-way street. See Olsen v. Principi, 3 Vet. App. 480 (1992). Based upon the foregoing, the Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's 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). ORDER Entitlement to service connection for residuals of a head injury is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs