Citation Nr: 1340693 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 08-30 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1978. This case comes before the Board of Veterans' Appeals Board) on appeal of a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned at a March 2013 Travel Board hearing The hearing transcript is of record In August 2013, the issue of service connection for residuals of a head injury was remanded for further development of the evidence. This has been accomplished and the case has been returned for further appellate consideration. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The preponderance of the lay and medical evidence demonstrates that the Veteran sustained a head injury while on active duty. 2. The Veteran has residuals of an in-service head injury. CONCLUSION OF LAW Residuals of a head injury were incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. A June 2006 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination, most recently in February 2012, with September 2013 addendum added pursuant to remand by the Board in August 2013. The Board finds that the opinion obtained is adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2013). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-1337 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F. 3d at 1377. Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Residuals of Head Injury The Veteran contends that service connection should be established for residuals of a head injury that he sustained while he was on active duty. During the Board hearing in March 2013, the Veteran testified that he had sustained a head injury in a motor vehicle accident (MVA) while on active duty. He stated that he lost consciousness at the time of the injury and was treated in the emergency room, then hospitalized as an inpatient for a number of days. Since service, he had been self-medicating with over-the-counter analgesic medications. He related that he has had symptoms such as headache, memory loss, vision disturbance, and stumbling since his discharge form service. In addition, the Veteran testified that he had also sustained a head injury in approximately 2000 when he struck his head on a garage door, but did not believe that he had residuals disabilities from this injury. Review of the Veteran's STRs shows that that the Veteran sustained several injuries of his head while he was on active duty. In December 1975, it was noted that he had struck his head against the frame of a car and now had swelling of the forehead and a headache. An X-ray study of the skull showed no evidence of a fracture. In May 1976, he was treated in the emergency room for trauma to the right side of his head. At that time, he denied loss of consciousness. The assessment of a blow to the right external ear, with contusion. Ice packs were recommended. In July 1976 he was treated in the emergency room for a head injury following an MVA. X-ray studies of the skull were reportedly negative. Physical examination was normal. 24 hours later, he returned to the emergency room with complaints of weakness. His temperature was reportedly 102 degrees and the assessment was viral syndrome. The emergency note concludes with "admit 5W." No records of a hospitalization are of record. On examination for separation from service, the Veteran did not give a medical history of having had a head injury and denied having or having had periods of unconsciousness. Clinical evaluation was normal throughout. In a September 2008 statement, the Veteran's father related that at one time during the Veteran's period of active duty, he recalled having been told that his son was in a coma. An examination was conducted by VA in February 2012 for the purpose of determining whether the Veteran had residuals of an in-service head injury. At that time the examiner rendered a diagnosis of traumatic brain injury (TBI), with the date of diagnosis being in 1976. An additional diagnosis attributable to TBI was tension headaches. The diagnosis was based upon the Veteran's history of having sustained a head injury in a car accident in service, with reported hospitalization and coma of 10 days duration. The Veteran reported that following the accident he had problems with his memory, headaches, and neck pain. The examiner noted mild objective evidence of impairment of memory and headaches. The examiner summarized that the Veteran demonstrated some areas of intact cognitive functioning as well as deficits that included memory loss. It was noted that the history of two lengthy comas in the 1970s had not been confirmed and that it was possible that chronic pain, insomnia, medications and psychological distress could explain cognitive deficits to some extent, but that it was also conceivable that the cognitive deficits on testing were due in part to a remote TBI. In a September 2013 addendum conducted pursuant to remand of the Board for the purpose of determining if it was at least as likely as not that the Veteran's current complaints of headaches and memory loss are related to an in-service head injury in 1976, an second examiner indicated that the Veteran's claims folder had been reviewed and a telephone interview conducted with the Veteran. After stating that the examiner who had performed the February 2012 examination was no longer available, the examiner reviewed the facts given during the February 2012 examination and the neuropsychological testing that had been performed. The examiner stated that the Veteran reported a severe TBI that occurred during service, with residual deficits including tension headaches that had largely improved and were now rare, and late effects causing memory impairment, which was mild. The Veteran related the circumstances surrounding the in-service head injury, stating that he had a few minutes of loss of consciousness without amnesia immediately following the accident, but then was sent by his superiors for medical attention and reported that he was then in a coma for ten days. The Veteran stated that a new headache type and memory complaints appeared immediately following this event. The examiner noted that the Veteran also reported having had a head injury in 2000 involving a very light garage door, with no loss of consciousness or any other neurologic signs or symptoms. The September 2013 examiner stated that the Veteran's description of a severe TBI would be consistent with resulting memory loss and headaches, but that there was no documentation of this reportedly significant medical event in the records. The examiner stated that the letter from the Veteran's father, wherein he related that he had been informed that the Veteran was in a coma was not available for review and that the Veteran's discharge examination did not mention a head trauma. The examiner opined that, if the TBI occurred as described by the Veteran, it is more likely than not that the Veteran's memory deficits and headaches were residuals of that TBI. Given the conflicting evidence, however, the examiner stated that it would be resorting to speculation as to the event occurred as described by the Veteran. It was further opined that the event in 2000 involving the garage door was less likely than not a TBI, as the Veteran did not have any neurologic deficits following this relatively mild impact to the neck. After review of the evidence the Board finds that the examination reports from the February 2012 and September 2013 evaluations may be utilized as a basis to establish service connection for residuals of a head injury if the Veteran's lay statements are found sufficiently credible to establish that he did in fact sustain a significant TBI while on active duty. Resolving reasonable doubt in the Veteran's favor, the Board finds his testimony to be credible. In this regard, it is noted that, despite the notation of the September 2013 VA examiner, the lay statement from the Veteran's father is contained in the evidence of record. In addition, the Veteran's STRs actually document multiple head injuries, with the last being the MVA that caused him to be seen in the emergency room twice. After the second visit, there is an indication that the Veteran was admitted as an inpatient, although medical records from a hospitalization are not available for review. Given these facts, it is found that, while the Veteran may not have been unconscious for the 10 days that he now claims, he did sustain a head injury with some loss of consciousness. As the medical opinions in the record are to the effect that, if the TBI occurred as described by the Veteran, it is more likely than not that the Veteran's memory deficits and headaches were residuals of that TBI, service connection is warranted. ORDER Service connection for residuals of a head injury is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs