Citation Nr: 1726331 Decision Date: 07/11/17 Archive Date: 07/20/17 DOCKET NO. 13-19 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for head scars. 2. Entitlement to service connection for headaches. ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from January 1951 to December 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction over these matters has since been transferred to the St. Paul, Minnesota RO. In his July 2013 VA Form 9 Substantive Appeal, the Veteran requested to appear at a videoconference hearing before a member of the Board. In April 2017, however, the appellant withdrew the request for a Board hearing. The Board considers the hearing request withdrawn at this time. See 38 C.F.R. § 20.704 (e). FINDINGS OF FACT 1. Head scars were not manifest in service and are not otherwise attributable to service. 2. Headaches were not manifest in service and are not otherwise attributable to service. CONCLUSIONS OF LAW 1. Head scars were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2016). 2. Headaches were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). ANALYSIS The Veteran appeals the denial of service connection for head scars and headaches. He claims his head scars and headaches are related to an incident in service in 1952 in which a crate fell on his head. According to the Veteran, he was stitched and treated for his head wound at that time. He claims he has had a head scar and headaches since that time. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). After weighing the evidence, the Board finds against the appellant's claims for service connection. To that end, service treatment records show a September 1954 puncture wound to the forehead. Service treatment records are negative for any complaints, treatment and/or diagnoses of headaches. The Board notes that the December 1954 separation examination disclosed normal findings for the head, neurological system, and skin, lymphatics. Identifying body scars or marks were also not shown at that time. Although the Veteran was seen for a puncture wound to the forehead in service, during his June 2011 VA examination, he denied any scars on his forehead. Rather, he claimed scars on the top of his head from an injury in 1952 when a crate fell on his head. He also attributed his headaches to the injury in 1952 and reported headaches almost every day since that time. Examination revealed he had five linear superficial creases on the top of his head. They were all parallel and ran from the front to the back of his head. The Veteran's wife reported that the Veteran's head was smooth when he entered service and that she felt that the Veteran had scars. The VA examiner, however, noted that none of the creases were tender retracted or adherent. She was unable to determine by examination if they were actually scars as opposed to wrinkles in the skin. The VA examiner rendered an assessment of no finding of forehead scars and scars versus wrinkles/creases on top of his head that are not likely related to the forehead wound in the military. She opined that these are not likely scars although the Veteran thinks that they might be. She also diagnosed chronic daily headaches but was unable to render an opinion on this matter without review of the claims file. In a June 2011 addendum opinion, the same VA examiner opined that the Veteran's headaches described are not likely due to or aggravated by the puncture wound to the forehead in 1954. There was no finding of a residual forehead scar on his recent exam she noted. In addition, the examiner explained that a puncture wound to the forehead would not likely cause posttraumatic headaches. By his own history, she said that the Veteran never sought treatment for the headaches until about 37 years after the incident. She was unable to make a nexus of the current headaches to a single incident 57 years ago with no report of headaches in the service treatment records or in the months following the incident. The September 2012 VA examination revealed that the Veteran had five superficial creases on top of his head. They were all parallel and ran from the front to the back of his head. They were less than 1 mm wide and did not appear to be scars to the VA examiner despite the Veteran's belief that they were. Neurological examination was within normal limits. Based on the examination and review of the record, the VA examiner found that it was less likely than not that the Veteran suffered a traumatic brain injury in service and that he had no loss of consciousness or amnesia. He explained that there was no alteration in mental status or focal neurological deficits and that the Veteran never sought treatment for the headaches for decades after the accident in 1952. He also noted that there were no reports of headaches in the service treatment records. Traumatic brain injury is not a delayed process he stated and it would not be expected that his headaches would get worse over time. In July 2013, F.D., PAC., noted the Veteran's history of being hit in the head during service in 1952. While he did not review service treatment records, he noted that the Veteran was sent to sick bay where he was sutured and monitored. Since that time, it was noted that the Veteran had recurrent headaches. Examination showed a four cm smooth line scar on the frontal aspect of the left scalp just near the hair line which was easily viewed according to F.D. No railroad scarring was noted. Although the Veteran reports an in service injury resulting in headaches and a head a scar, a head scar and headache disability resulting therefrom is not shown by the record. Significantly, the separation examination disclosed normal findings for the head and no identifying body marks or scars were shown at that time. It is also noted that VA examinations essentially demonstrate no definitive evidence of a head scar much less a scar that is related to service. At most, the Board notes that in July 2013 F.D found that the Veteran had a four cm smooth line scar on the frontal aspect of the left scalp just near the hair line. F.D., however, did not render any opinion as to the etiology of the scar nor did he attribute the scar to an event or incident in service. Lay statements submitted by friends and family in September 2011 note that the Veteran did not have any head scars before he entered service but that he had scars when he returned home. Laypersons are competent to report on that which they can observe. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board, however, finds that the lay statements are less probative than the normal findings during the December 1954 separation examination which include a specific finding of no identifying body scars or marks at that time. In view of the Board, the objective findings at the time of separation are more probative on this matter than the lay statements of records. Furthermore, the Board notes that the lay evidence submitted is in conflict with the Veteran's own testimony. To that end, the Veteran has consistently stated that his head scar was not the result of the 1954 punctured wound that was documented in service but rather the result of a crate falling on his head in 1952. Statements submitted in September 2011 from his wife, however, state that the Veteran wrote her after the accident in 1954 and told her about the fall. The Veteran's sister in law also claimed in September 2011 that her sister told her about the Veteran's fall in service in 1954 and that she saw the scars the next time she saw him. The statements are conflicting with the history provided by the Veteran and are unreliable. The Board also notes that the Veteran has presented inconsistent statements regarding the frequency of his headaches. During his November 2010 VA examination, the Veteran reported having daily headaches since service but he reported having headaches "almost every day since service" during his June 2011 VA examination. In November 1985, when seen for headaches of four week duration, it was noted that he had frequent headaches not daily headaches. When seen in September 1988, a history of having headaches "last week" was noted. In her September 2011 statement, the Veteran's wife noted that the Veteran has complained about headaches "on and off" all his life. In July 2013, D.F. noted a history of "recurrent" headaches since the Veteran's fall in service. Although the Veteran has reported having "daily" headaches since his fall in service, the evidence is against this claim. The Veteran's statements to include histories given for examination purposes are clearly inconsistent with his claim of daily headaches. As the Veteran has given inconsistent statements, the evidence shows that he is also an unreliable historian. In sum, the Board finds against the Veteran's claims for service connection. The Board has reviewed the service examination reports, VA medical records, the VA examinations and private treatment records of file. The Board finds, however, the most probative evidence of record is devoid of showing that the Veteran's disabilities are related to service. Accordingly, the claim is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for head scars is denied. Entitlement to service connection for headaches is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs