Citation Nr: 1341445 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-37 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI), claimed as secondary to a motor vehicle accident in service. 2. Entitlement to service connection for a cervical spine disability (neck condition) with bilateral radiculopathy of the upper extremities, claimed as secondary to a motor vehicle accident in service. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active service from February 1972 to February 1974. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran testified before a Decision Review Officer (DRO) at an August 2010 hearing, a transcript of this hearing is of record. This issue was previously before the Board in December 2012 and was remanded for further development. Specifically, the Board requested records from the social security administration (SSA), West Virginia Workers' Compensation, and private treatment records from Dr. T.D. of St. Frances Hospital be obtained and the Veteran be provided with a new VA examination. The Board finds all of these requested actions were substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998); D'Arie's v. Peake, 22 Vet. App. 97 (2008). The Board notes the private treatment records of Dr. T.D. were not obtained directly from St. Frances Hospital. In a March 2013 letter the VA requested the Veteran complete a signed medical release for these records, however, the Veteran never completed the requested release. However, the treatment records from Dr. T.D. were included in the medical records obtained from the SSA. Therefore, the Board finds although these records were not obtained directly from St. Frances Hospital as requested on remand, they are included in the claims file. Accordingly the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of hearing loss has been raised in the April 2012 written informal hearing presentation of the Veteran's representative, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The evidence does not establish the Veteran currently has a traumatic brain injury. 2. The evidence does not establish the Veteran's currently diagnosed neck condition with bilateral radiculopathy of the upper extremities either began during or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for a neck condition with bilateral radiculopathy of the upper extremities have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is currently seeking service connection for TBI and a neck condition with radiculopathy both claimed as secondary to a motor vehicle accident during his active service. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Throughout the period on appeal the Veteran has consistently asserted that both his TBI and neck conditions are residuals of his motor vehicle accident during active service. In an August 2010 written statement the Veteran described that in March 1973 he was a passenger in a motor vehicle when the driver lost control of the vehicle while exiting the Autobahn in Germany. The vehicle then overturned and the Veteran was trapped underneath. He was unconscious after the accident and woke up the following day in a hospital. The Veteran asserted no medical personnel were around when he woke up so he used a phone to call a friend to pick him up from the hospital. The Veteran said he left the hospital without receiving any medical treatment. The next day he returned to work. The Veteran also submitted an undated photograph of himself he asserted was from shortly after the motor vehicle accident. In the photograph visible bruising is observed under both the Veteran's eyes and the left side of his forehead. The Veteran's lay testimony is supported by his service treatment records. His file includes a March 1973 line of duty determination (LOD) which described the Veteran was involved in a motor vehicle accident on the Autobahn which caused the vehicle to overturn while the Veteran was inside. The LOD indicates the Veteran was admitted to the hospital and examined. The extent of the Veteran's injury is listed as "observation head injury." The LOD indicates it was "undetermined" if his injury would result in disability. However, service treatment records do not reflect the Veteran sought any additional treatment for, or made any complaint of, any TBI and neck injury during his active service. At his December 1973 separation physical he was found to be in normal condition except for scars on his lower arms bilaterally. At this accompanying report of medical history the Veteran denied experiencing any symptoms except for "eye trouble." He indicated he wore glasses or contact lenses. He specifically denied experiencing headaches, dizziness, and back pain, among others, providing highly probative factual evidence against his own claims. Therefore the service treatment records support the Veteran's competent assertions that he was involved in a motor vehicle accident during his military service, including some injury to his head. However, these records do not establish the Veteran developed any chronic condition as a result of his motor vehicle accident during his active service, including any brain injury and neck condition. Instead, his separation physical suggests the Veteran was in normal health at separation from active service. This is supported by the Veteran's own statements at that time. The Board will now turn to a discussion of the Veteran's post-service treatment for both conditions above in turn. TBI As discussed, the Veteran's service treatment records do not reflect he sought treatment for or made any complaint of any chronic head or brain injury during his active service. As will be discussed, post-service treatment records do not establish he had any chronic head or brain condition at any point during the period on appeal. The Board has considered the Veteran's lay statements regarding a brain injury. For example, in his September 2009 written notice of disagreement the Veteran asserted he had cognitive and memory defects. During his DRO hearing the Veteran testified his doctor sent him for a brain scan then informed the Veteran his brain was loose from his skull. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing memory loss. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of any alleged memory loss due to a brain injury. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore the Veteran's lay statements describing his memory loss are competent and have been considered by the Board. However, as will be discussed, the Board finds the Veteran's lay assertions he experienced cognitive and memory defects are not supported by the objective medical evidence of record. In May 2009 the Veteran was provided with a VA examination. The examiner read the Veteran's claims file, including his history of a motor vehicle accident during active service. The Veteran reported experiencing headaches on the right side around two to three times per month of 6 out of 10 severity level. He also experienced dizziness two times a week starting around five years ago, or approximately thirty years after his separation from service. The examiner also noted the Veteran had hearing loss but opined this condition was not due to TBI. Upon examination reflexes, sensory exam, and motor control were all normal. The Veteran had no complaints of impaired memory, his judgment was normal, and social interaction was routinely appropriate. CT scan showed no acute intracranial hemorrhage. Based on the foregoing the examiner opined it was less likely than not that the Veteran had TBI or any residuals from the motor vehicle accident during service. He continued to opine the Veteran's hearing loss, headaches, and mild anxiety and depression were all "related to his industrial history after discharge" and less likely than not related to his service, including the motor vehicle accident. This examiner fully reviewed the Veteran's claims file, expressed a clear, unequivocal opinion, and explained his rationale. Therefore the Board finds this report provides highly probative evidence against the Veteran's claim. In July 2009 a private physician conducted a "Mini-Mental State Evaluation" on the Veteran. During this private evaluation the Veteran scored 30 out of 30, suggesting no mental impairment, providing further evidence against his claim which only supports the above. In March 2013, the Veteran was provided with an additional VA examination to insure that the Veteran's claim was being fully evaluated by VA. This examiner reviewed the Veteran's claims file, including the history of a motor vehicle accident during service, and opined the Veteran did not have TBI or any residuals at any point. The examiner explained that following the Veteran's motor vehicle accident in service he "may have had [a] mild concussion" but the temporary condition "resolved completely." The examiner opined there were no sequelae following the motor vehicle injury and the Veteran worked well for several years after his separation from service. The Board finds the report from this second VA examination provides additional evidence against the Veteran's claim. The Veteran's extensive post-service treatment records were carefully reviewed but do not reveal the Veteran sought any additional medical treatment or made any additional complaint of any TBI or residuals in addition to the instances summarized above at any point during the period in appeal. For example, the Veteran currently receives benefits from the SSA based on his spinal disc disorder and essential hypertension, however, any TBI or residuals were not listed on his disability determination providing some limited evidence against this claim, beyond the above. Based on the foregoing the Board finds the evidence does not establish the Veteran had TBI or any residuals at any point during the period on appeal. Although the Veteran did injure his head during a motor vehicle accident in service, service treatment records do not reflect he was treated for any chronic head or brain injury during service. His separation physical suggests the Veteran was in normal mental and physical health at separation. The Veteran has not been diagnosed with any head or brain injury since his military service, and medical professionals have consistently opined he does not currently have any TBI or other mental impairment, notwithstanding extensive evaluations. Based on the foregoing the evidence does not establish the Veteran has a disability on which benefits could be granted and his claim for service connection is denied. Neck Condition The Veteran is also seeking service connection for a cervical spine condition with radiculopathy to both upper extremities. The extensive medical evidence establishes the Veteran currently has a neck condition with associated radiculopathy to both arms. However, as will be discussed, the Board finds this current neck condition did not begin during, or was otherwise related to, his military service. In his August 2010 hearing before the DRO the Veteran reported he experienced numbness in his shoulder blades that would go down his right arm following his motor vehicle accident in service, but did not seek any treatment at the time because he wanted to get back to work. He testified the first treatment he received for his neck and arm condition was in 2002. As will be discussed, the Board finds the objective medical evidence of record does not establish the Veteran experienced his current neck and associated arm pain consistently since his military service. Instead the evidence suggests his condition began in 2002, when the Veteran testified he began receiving treatment for his pain. First, an electromyogram performed in November 2001 was normal, with both median and ulnar motor and sensory conduction studies producing normal results. The reviewing private physician opined the Veteran had no evidence of carpal tunnel syndrome, ulnar neuropathy, or a generalized peripheral neuropathy. As this testing was normal approximately twenty-seven years after his separation from service the results of this electromyogram provide highly probative evidence the Veteran did not experience any neck condition and associated neuropathy of the arms consistently since his active service. In approximately February 2002 the Veteran had an injury during his employment at the coal mine and began experiencing pain in his neck. The Veteran described the onset of his pain as February 2002 following a post-service workplace injury on several occasions, including during medical treatment in October 2002. At that time his private physician opined the Veteran's neck pain was "related to his work." In May 2003 a private physician again opined the Veteran's current neck pain and associated arm pain was due to "work-related injuries." Therefore contemporaneous medical evidence reflects the Veteran consistently reported his neck and arm pain began in 2002 following a workplace injury, and not since his military service. The Board may properly assign more probative value to lay statements made for treatment purposes rather than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Therefore the Board finds these contemporaneous medical records suggesting the Veteran's current pain began in 2002 are more probative than subsequent statements made during the course of this appeal suggesting his pain began following the motor vehicle accident in service. Therefore these contemporaneous lay statements made during the course of medical treatment provide highly probative evidence against the Veteran's claim. In a February 2004 determination the SSA determined the Veteran's condition of pain in his neck and upper back, radiating down to both arms began in February 2002, while the Veteran was at work (post-service). While the SSA decision is not binding on the VA, it provides additional evidence against the Veteran's claim. Notwithstanding the above, in March 2013 the Veteran was provided with a VA examination to insure a complete review of the case. The examiner reviewed the Veteran's claims file, including the report of his in-service motor vehicle accident and subsequent post-service workplace injuries. The examiner opined the Veteran did have a cervical spine disability with bilateral radiculopathy to the upper extremities. However, the examiner opined it was less likely than not that this condition was incurred in or caused by his in-service injury. The examiner explained that the Veteran's condition started in 2002 after an injury at work, twenty eight years after separation from service. Therefore this condition was neither caused by nor related to his in-service motor vehicle accident in 1973. The Board finds this examiner fully reviewed the Veteran's claims file, expressed a clear, unequivocal opinion, and explained his rationale. Therefore the Board finds this report provides additional highly probative evidence against the Veteran's claim. This claims file has been carefully reviewed and does not include any medical opinion suggesting the Veteran's current neck condition is related to his active service. Based on all the foregoing the Board finds the evidence does not establish the Veteran's current cervical spine condition with bilateral radiculopathy of the upper extremities began during or was otherwise due to his active service. Service treatment records do not reflect the Veteran made any complaint or, sought any treatment for, any neck and bilateral arm condition during his active service, and his separation physical suggests the Veteran was in normal health. Diagnostic testing from 2001 reflects the Veteran did not have any radiculopathy or other neurological condition at that time. The Veteran's statements while seeking medical treatment suggest his pain began in 2002 follow an injury at his post-service employment in a coal mine. Finally, the VA examiner opined the Veteran's current neck condition was not related to his active service. Based on all the foregoing, the Veteran's claim for service connection is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in April 2009, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, post-service VA treatment records, records from the SSA, and records from the Veteran's state workers compensation claim are all included in the record. As discussed above although the private treatment records were not obtained directly from St Francis Hospital, these records were included in files obtained from the SSA and therefore included in the claims file. Additionally, the Veteran testified before a DRO office. He was also offered the opportunity to testify at a hearing before the Board, but he withdrew his request for a Board hearing. 38 C.F.R. § 20.704(e). The Veteran was also provided with two VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The claims for service connection are denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs