Citation Nr: 1337725 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-36 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to additional disability, other than headaches, due to traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from April 1968 to April 1970 and was awarded the Combat Infantryman Badge and Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the above-referenced Regional Office (RO). The Veteran testified at a Travel Board hearing held in August 2012, before the undersigned Veterans Law Judge at the Little Rock RO. The transcript from that hearing has been associated with the Veteran's physical claims folder and reviewed. The Board has reviewed the Veteran's claims file as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all the evidence. The Board notes that following the August 2010 Statement of the Case (SOC), VA treatment records dated from May 2000 to January 2011 were associated with the claims file. In addition, VA medical records, available through the Compensation and Pension Records Interchange (CAPRI) have been uploaded to the Veteran's electronic Virtual VA folder. Under applicable law, the Board may not consider newly-submitted evidence in the first instance unless the claimant has waived initial consideration by the appropriate agency of original jurisdiction (here, the RO). See 38 C.F.R. §§ 19.37, 20.1304 (2012). Review of the record reveals that the Veteran was not issued a Supplemental SOC after these medical records were added to the file. Although no waiver was submitted along with this evidence, the Board's decision herein denying service connection for additional disability, other than headaches, due to TBI is based on the fact that there is no competent and credible evidence of a current disability. The additional evidence merely documents continued evaluation and treatment of the Veteran's service connected post-concussive headaches with no diagnosis of any additional residual disability. In other words, the records are not relevant or material to the outcome of the issue currently on appeal and do not preclude a decision by the Board at this time. FINDINGS OF FACT 1. The Veteran's complaints of memory loss and decreased concentration do not represent findings of a separate disorder, inasmuch as they are symptoms and not actual disabilities for which VA compensation benefits may be granted. 2. The preponderance of the competent and credible evidence of record does not show that the Veteran was diagnosed with a chronic additional disability, other than headaches due to TBI, at any time during the pendency of the appeal. CONCLUSION OF LAW Additional disability, other than headaches, due to TBI was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in April 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2009. Nothing more was required. VA has also satisfied its duty to assist the Veteran in the development of his claim. In-service and pertinent post-service treatment reports are of record. The Veteran has availed himself of the opportunity to submit relevant documents and argument in support of his claim, including personal statements, representative argument, and has provided testimony at the 2012 Board hearing. The Board finds that there is no additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Veteran was afforded a VA examination in August 2009 to determine whether he has any additional disability other than headaches as a result of the TBI he sustained during service. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim as it reflects a full review of all medical evidence of record, is supported by sufficient detail, and refers to specific documents and medical history and the Veteran's service history to support the conclusions reached. Accordingly, there is no basis to conclude that the VA medical opinion is inadequate, or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence, to support his claims. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); & Quartuccio v. Principi, supra. Law and Analysis The Veteran is seeking service connection for disability which he asserts is a direct result of the head trauma experienced in service. See August 2012 Board hearing transcript. The Board notes that the Veteran has already been awarded service connection for post concussion headaches as a residual of TBI. Therefore, the Board must now consider whether the Veteran has additional diagnosed head injury residuals, other than headaches, for which service connection may be granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). "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). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. The Veteran's complaint of cognitive impairment, including memory loss and decreased concentration, is not explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a). Thus, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran argues that he has cognitive impairment, claimed as memory loss and problems with concentration, as a result of TBI. Unfortunately, the primary impediment to a grant of service connection is the absence of medical evidence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Turning to the evidence of record, service treatment records show the Veteran was seen in July 1968 for complaints of intermittent episodes of visual disturbances occurring once a week and lasting 3-5 minutes followed by severe right temporal cephalgia. The clinical impression was ciliary spasm with possible migraine syndrome. The remaining records show the Veteran did not indicate any specific complaints of cognitive problems, including memory loss or problems with concentration during service, and none are documented. At separation in March 1970, the Veteran denied frequent severe headaches, dizziness or fainting spells, eye trouble, history of head injury, or periods of unconsciousness. Clinical evaluation of the Veteran's neurological system was normal. Although the Veteran now claims to have experienced ongoing memory loss, decreased concentration, and related cognitive problems, there is no objective medical evidence on the record that he is currently being treated for any cognitive impairment. On VA examination in March 1987, the Veteran reported that he sustained a head injury in an explosion in 1969. He stated that although the explosion caused him to bleed from the nose and ears he was never knocked unconsciousness by the blast. However since that time he has had recurring headaches. Neurological examination was entirely within normal limits. The Veteran had no difficulty with hearing, understanding, or following instruction. His gait and balance were normal and the functions of all cranial nerves appeared intact. The Veteran had no complaints in regard to the function of the general somatic sensory system below the neck. The diagnosis was residual headaches secondary to head injury. VA clinical records show the Veteran continued to seek treatment for severe headaches with no specific mention of any cognitive impairment or other pertinent symptoms or abnormalities. In general the neurological evaluations were within normal limits. See VA outpatient treatment records dated from January to March 1988 and March 2002 VA examination report. Subsequent VA examinations show the Veteran continued to complain of recurrent headaches, with associated nausea, photophobia, phonophobia, and vertigo, but did not report any other neurological symptoms. Clinical evaluation and testing were both negative for any cranial nerve abnormalities or other neurological deficiencies apart from headaches. Neurological testing did not find any abnormalities. See VA examination reports dated in August 2006 and March 2009. The Board acknowledges that, in September and October 2008, VA revised its regulations regarding the handling of traumatic brain injury claims, including the guidelines for conducting examinations in support of such claims. To that end, the Veteran underwent VA TBI examination in August 2009. At that time the VA examiner reviewed the claims file, including service treatment records and post-service VA outpatient treatment reports and summarized the history and findings reflected by these records. The Veteran's primary complaint was of worsening headaches with associated nausea, photophobia, phonophobia, vertigo, dizziness, and sometimes lightheadedness. The examiner noted the Veteran had no complaints of problems with memory, attention, concentration, or executive function. Judgment, motor activity and visual-spatial orientation were all normal. The Veteran's speech and swallowing as well as bowel and bladder control were all normal. He denied mood swings, anxiety, depression, irritability, or restlessness. He did not have sensory loss or tinnitus and his sense of taste and smell were okay. The Veteran had never had a seizure and there was no evidence of neurobehavioral effects. Although he preferred to live alone the Veteran was able to communicate well with spoken and written language and his level of consciousness was normal. The diagnosis was headaches secondary to mild traumatic brain injury with no other residual effects. The remaining evidence of consists of VA outpatient treatment reports dated from 2000 to 2013, which show that the Veteran's headaches have been the chief focus of his medical care. He has not reported any other neurological symptoms and no VA or private medical provider has independently diagnosed the Veteran with a distinct and separate cognitive impairment or other neurological deficits apart from the headaches. In this case, the evidence of record does not provide any medical basis for holding that the Veteran currently has any other TBI residuals, apart from the headache disorder for which service connection has already been established. The Veteran is competent to report that he sustained a head injury during service and is credible in this regard. There is also no disputing the service records that show he was treated for headaches on a number of occasions during service. However, the VA examiner in August 2009, diagnosed mild TBI, but found no objective clinical evidence of any other residual effects of the TBI other than headaches. This examination report is unrebutted by any other medical evidence to the contrary. So while the Board does not dispute the Veteran's in-service history or his current complaints, there is no basis to award service connection because there also has to be chronic (meaning permanent) residual disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent evidence to exist). In other words, a clinical finding, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. The Veteran has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show any identifiable TBI residuals, apart from the postconcussive headaches. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). Although the Veteran may indeed experience some sort of recurring symptoms, in the absence of competent evidence which suggests that his memory loss and concentration problems constitute chronic disabilities, the Board has no basis on which to consider them as more than medical findings or symptoms. Certainly, absent a finding that the Veteran has been diagnosed with additional chronic residual disabilities, other than headaches at any time during the appeal period, no valid claim for service connection exists. See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Consideration has of course been given to the Veteran's assertions that he experiences cognitive impairment, in addition to his postconcussive headaches, as result of the TBI. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the process of diagnosing musculoskeletal disabilities falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Based on this evidentiary posture, service connection cannot be awarded. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Entitlement to additional disability, other than headaches, due to TBI is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs