Citation Nr: 1445908	
Decision Date: 10/16/14    Archive Date: 10/30/14

DOCKET NO.  08-06 544A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for residuals of a head injury.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Sangster, Associate Counsel







INTRODUCTION

The Veteran served on active military duty from March 1977 to March 1980.

The appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefits sought on appeal. 

The Board in September 2011 remanded the claims for additional development.  In April 2013, the Board reopened and remanded the Veteran's claims for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and schizo-affective disorder, and residuals of a head injury.

However, during the pendency of this appeal, in August 2013, the Appeals Management Center (AMC) granted service connection for an acquired psychiatric disorder.  The AMC assigned an initial 70 percent rating for an acquired psychiatric disorder, retroactively effective from September 21, 2006.  The Veteran timely appealed this decision in July 2014.  But more recently, in October 2014, a Decision Review Officer (DRO) decision granted a 100 percent rating for this claim, retroactively effective from September 21, 2006.  Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).  In this case, the DRO granted the 100 percent evaluation effective the date of claim.  Therefore the Veteran's appeal of the initial evaluation is no longer before the Board. 


FINDING OF FACT

Residuals of a TBI are not shown to be due to a disease or injury in-service or to any incident of military service.


CONCLUSION OF LAW

The criteria for the establishment of service connection for residuals of a head injury have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION


I. Duties to Notify and Assist

 The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim.  Id.  In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA.

The record reflects the Veteran was mailed a letter March 2007 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence.  This March 2007 letter provided the Veteran with the appropriate notice with respect to the disability-rating and effective-date elements of his claim. 

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim.  Pertinent medical evidence associated with the claims file consists of the service treatment records (STRs), VA and private medical records.  

Additionally, pursuant to the Board's April 2013 remand directives, the Appeals Management Center (AMC) made an attempt in May 2013 to obtain medical records from the Social Security Administration (SSA).  Shortly thereafter, in May 2013, SSA informed the AMC that the Veteran's medical records had been destroyed.  In June 2013, a memorandum making a formal finding on the unavailability of SSA records was issued.  Thus, the Board finds that any additional attempts would be futile.  The Board therefore concludes that there has been substantial compliance with the terms of the previous remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

In addition, the Veteran has been afforded the appropriate VA examinations, as set forth below. The Board has determined that those examinations were adequate because they were factually informed, medically competent, and responsive to the issues on appeal.  38 C.F.R. § 4.2 (2013). 

Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification is required.

II. Service Connection for Residuals of a Head Injury 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Court has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 disease or injury.  Hickson v. West, 12 Vet. App. 247 (1999).

Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or is legitimately questionable.  38 C.F.R. § 3.303(b) (2013). But this alternative means of linking the currently-claimed condition to service is only available if the condition being claimed is one of those specifically identified in 38 C.F.R. § 3.309(a) as chronic, per se.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran contends that he sustained a head injury during service that resulted in neurological impairment.

A review of his STRs shows that the Veteran was hospitalized in January 30, 1979 for respiratory difficulties.  The January 1979 in-service hospitalization note documented that the Veteran was "highly agitated [with] his doctor, the Army[,] everything in general."  In addition, a February 1, 1979, in-service hospitalization nursing note showed that the Veteran was back on the ward upon his return from the NCO club, and reported having been in a fight.  The nurse noted a large lump on his head above the right ear.  The Veteran refused to have his blood drawn for an alcohol level reading, but he was oriented, with no blurred vision, and pupils equal and reactive to light.  The nursing note from later that day informed that the Veteran was in a sarcastic mood, and that a neurological check was "ok."

The absence of disorientation or apparent mental dysfunction following the head injury as reflected in nursing notes on February 1, 1979, differs markedly from the Veteran's account of his circumstances following the head injury which he provided to psychiatric clinician B.H., and which she noted in her September 2012 psychiatric evaluation report.  She stated that the Veteran reported that as the time for his discharge neared, while returning to the hospital from the NCO club, he was attacked from behind by two men who "stomped and kicked me repeatedly" after he slipped on the wet, icy ground because of the blows and fell to the ground.  He reported that he was knocked unconscious and that his head injury left him unable to think clearly, to speak coherently or to write his name for days, and that he has never recovered physically or psychologically.  

As a result of the Veteran's statements contained in the September 2012 psychiatric report, the Board reopened this claim and remanded it for a VA examination to determine the nature and etiology of any residuals of head trauma.  To this end, the Veteran had a VA traumatic brain injury (TBI) evaluation in August 2013.  The examiner noted that the Veteran reported he had a head injury in 1979 when he was leaving from a tavern NCO.  He stated that he was drinking and went back to the hospital where he was an inpatient for asthma treatment.  The Veteran reported that two guys jumped him, he slipped and hit the ground and then curled up as they stomped and kicked him.  He stated that he was not sure about the length of time he had loss of consciousness, but he turned his head over and tried to get up couple times.   The Veteran reported that he finally made his way back over to the hospital and sat in a chair in the hospital in the lobby area for hours, then he went up to his room and was getting his theophylline treatment and had problems talking to the nurse.  He stated that he was "talking goofy" and he was thinking and he could not write.  The Veteran then had a CT scan and they thought he was drinking.  The Veteran stated that he went to Mayo clinic last year due to a seizure disorder and reported taking medication for his condition.  He denied any motor vehicle accidents or hospital stays.  The Veteran noticed in the past, about three times per year, he "has the urge to" throw up and had some vision changes described as a line of smoke that rotated, and he would have to lie down for a few hours.  Additionally, he reported an altercation with the police in 1983 and alleged they bashed him in the head, but he did not lose consciousness.  

The examiner, however, opined that based upon examination and available information, she could not provide an opinion whether the Veteran sustained a TBI in the military without resorting to mere speculation.  The examiner stated that there was no TBI documented in his STRs and the incident referred to was assessed as a medication and ethanol (ETOH) toxicity.  Additionally, she noted his injury in 1983 from the alleged altercation with the police.  The examiner then concluded that the Veteran's multiple medical problems, to include mental health issues and seizure disorder, began 30 years after service.  

Resultantly, another medical opinion was obtained in September 2013 regarding the nature and etiology of the Veteran's residuals of a head injury.  The examiner opined that the Veteran's claimed condition of TBI was less likely than not incurred in or caused by or aggravated by the claimed in-service injury, event, or illness.  He noted that the Veteran was hospitalized at Fitzsimons Army Hospital for work-up of his intractable asthma from January 1979 to April 1979, including a period spent in Medical Holding Company from February 1979 to April 1979.  The examiner also noted that while on the ward, the Veteran went to the NCO club and it was documented in his chart that he went to the NCO club and had gotten into a fight.  There was a large bump on the right side of head above ear, but the Veteran was oriented, pupils equal reactive light and no blurred vision.  The Veteran refused to have his blood drawn for ETOH level.  He further cited the nursing notes stating that the "patient [was] in bed most of the shift and in a sarcastic mood.  Neuro[logical] check @ 1000 OK. No complaints."  The examiner concluded that there was no indication of this being a significant head injury with loss of consciousness, or associated headache, dizziness; no evidence in the record of a concussion.

Unfortunately, after considering the evidence of record under the applicable laws and regulations, the Board concludes that service connection for residuals of a head injury is not warranted.  The Veteran's STRs show that while he sustained a head injury, there were no neurological impairments after evaluation.  Additionally, the August 2013 VA examination in conjunction with the subsequent September 2013 VA medical opinion concluded that there was no objective finding to sustain that the Veteran had a significant head injury that would result in any neurological impairments.  

Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for residuals of a head injury, and under these circumstances, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).







ORDER

Entitlement to service connection for residuals of a head injury is denied.




____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs