Citation Nr: 1756492 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-09 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to service connection for a head injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran had active duty service in the United States Army from October 1953 to September 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's head injury was not caused or related to service. 2. The Veteran does not have a diagnosis of head injury or residuals of a Traumatic Brain Injury (TBI). CONCLUSION OF LAW The criteria for service connection for a head injury are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C.A. § 5102 VA, first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The Veteran must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). In this appeal, the Board finds the letter dated in February 2013 before the July 2013 rating decision provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter, the rating decision, the statement of the case and the supplemental statements of the case. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence to include his service treatment records (STR) and his VA treatment records. Moreover, VA provided the Veteran with VA examinations in January 2014 and June 2014. The examinations included a review of the record on appeal, they referred to a detailed medical history from the Veteran, and, after the Veteran was examined, the examiners provided opinions as to the diagnosis and origins of the Veteran's current disability. The Board finds that the opinions from these examinations and the overall record are now sufficient to decide the claim. Therefore, the record is now sufficient to decide the claim. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007). Lastly, neither the Veteran nor his representative has argued that any prejudice results from the assistance provided for this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the VBMS and Virtual VA claim files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the Veteran's claim folder shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. The Claim The Veteran asserts that he has residuals of head injury that are due to his military service. In order to establish service connection for the claimed disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to the claim for service connection for a head injury, the threshold question that must be addressed is whether the Veteran actually has the disability for which service connection is sought; specifically a head injury. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As to a current diagnosis, the Veteran does not have a diagnosis for a head injury or a TBI. See January 2014 VA examination. The Veteran's service treatment records were silent for any in-service head injuries. The Board does acknowledge that the Veteran did experience carbon monoxide poisoning while in service but no head injury occurred during that event. The service treatment note from that incident stated that the Veteran was sleeping in a trailer next to a motor generator. The record stated that the Veteran "awoke and got up, staggered on attempting to walk, and passed out for a few seconds." The record also indicated that the Veteran had a headache for a short time. The record also showed that the Veteran on admission "only felt tired." Lastly, the hospital discharge summary shows that the Veteran's doctor diagnosed him with carbon monoxide poisoning and stated that the Veteran has appeared to have made a complete recovery and was discharged to duty. See Service Treatment Records February 5-7, 1955. Moreover, the Veteran's separation examination was silent for any indication of a head injury or a TBI when the Veteran was released from active duty. See September 1956 Separation Examination. As to the Veteran's lay statements, the Veteran stated that he hit his head on a tank after the carbon monoxide incident and he has residuals from this injury. See February 22, 2013 Statement in Support of Claim. In this regard, the Board finds that the Veteran is considered competent to report on observable problems, such as nausea and pain, because these symptoms are observable by a lay person. See Kahana, supra. However, the Board also finds that the Veteran is not competent to provide a medical opinion as to the origins of his present disability because such an opinion requires medical expertise which he does not have. As such, the Board places little probative weight on the Veteran's statements because they are not supported by the medical evidence contained in the record and he does not have the medical expertise to provide a diagnosis for his claimed disability. See Davidson, supra; Kahana, supra. In regards to his available post-service medical records they are also silent for a diagnosis of head injury or TBI. A medical history taking in August 2012 reported that the Veteran had no history of a head injury, no history of seizures, and no limitations to active daily living. See VA Progress Note August 23, 2012. Turning to the additional medical evidence at hand, in January 2014, the Veteran was given a VA examination to determine the nature and etiology of his disability. At that examination the examiner opined that the Veteran did not have a diagnosis of head injury or TBI. The examiner stated that "it is my opinion that the Veteran did not suffer a mild TBI during service based on the documented record and his examination today. The examiner added that the Veteran "was treated for accidental carbon monoxide poisoning in 1955." The examiner continued by stating that "the Veteran reports passing out from the carbon monoxide and then falling down." The examiner concluded by opining that "the Veteran's claimed loss of consciousness was not due to head trauma, but rather due to the carbon monoxide poisoning. The veteran has no residuals from mild TBI as he did not suffer a TBI." See January 2014 VA examination. The Board also notes that the Veteran had a VA examination in January 2014 for PTSD. The VA psychologist who conducted the mental health examination that day also indicated that the Veteran did not have a diagnosis for a TBI. See January 29, 2014 PTSD VA examination. The Veteran had another VA examination in June 2014. At this examination, the examiner did not find that the Veteran had a head injury or TBI but the examiner did diagnose the Veteran with migraines. The Veteran reported that he has a headache type that began in 1955. The Veteran also reported that this headache type continues to the present. In addition, the Veteran reported that his headaches start with anxiety and visual changes, the pain is constant and at the back of his head, the pain is worse with movement. The Veteran also stated that he has nausea, photophobia, photophobia, and the headache lasts about 30 minutes. Lastly, the Veteran stated that the headaches occur about two to three times per month. Following the examination, the examiner stated "based on the Veteran's report, in my opinion it is more likely than not that the Veteran has a headache disorder that began during his military service. It is less likely than not that the Veteran's fall caused his headache disorder as the Veteran does not report a close temporal association between the onset of the headaches and the fall, and the severity of the injury with the fall was very mild. See June 2014 VA examination. The Board finds these VA examinations are highly probative pieces of evidence in regards to the nature and etiology of the Veteran's claimed disability. The Board has reached this conclusion because the examiners reviewed the Veteran's medical history, interviewed the Veteran, and examined him before they rendered an opinion. Accordingly, the Board has placed significant weight on those evaluations. Davidson, supra. Moreover, the opinions by the VA examiners are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Furthermore, the Board notes that the Veteran was service connected for headaches in June 2014. The Veteran's current claim for a head injury involves symptoms specifically related to headaches. Therefore, even assuming the occurrence of a fall or falls that involved in-service trauma to the head, the VA examinations in January 2014 and June 2014 did not identify any other symptoms that could be attributed to a head injury. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Pyramiding the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14 (2017). In this case, the Veteran's service connection for headaches already takes into account the symptoms related to that disability. The Board finds that an assignment of a separate compensable rating for headaches due to a head injury would constitute impermissible pyramiding because there are no separate and distinct manifestations associated with the claimed head injury. In sum, the Board finds that the most probative evidence of records shows that the Veteran does not have a diagnosis of a head injury or TBI at any time during the pendency of the appeal. In reaching this conclusion, the Board has considered the Veteran's lay statements and the available medical information contained in the Veteran's claims file and finds that the VA examiners' opinions are the most probative pieces of evidence. Accordingly, the Board has placed significant weight on those opinions. Thus, the Board finds that entitlement to service connection for a head injury is not warranted because the weight of the probative evidence is against finding that the Veteran suffered a head injury while on active duty and the evidence does not show that the Veteran has a diagnosis of head injury or TBI at any time during the pendency of the claim on appeal. See 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.307, 3.309, 3.303(d), 3.310. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for a head injury, must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a head injury, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs