Citation Nr: 1801985 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 09-23 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from June 1970 to February 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The case is now under the jurisdiction of the RO in Oakland, California. The Veteran was scheduled to present before a Veterans Law Judge in December 2012. However, the Veteran failed to report to the hearing. As the record does not contain further explanation as to why the Veteran failed to report to the hearing, or a request to reschedule the hearing, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704(d) (2017). The Board remanded the Veteran's claim for additional development in February 2013, October 2015 and May 2017. The case is once again before the Board. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has residuals of a head injury he sustained in service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for residuals of a head injury are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he currently has residuals of a head injury he sustained in service. As a general matter, service connection for a disability requires competent evidence of: (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert supra. To deny a claim on the merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the record, the evidence including some contemporaneous journal notes, indicate that the Veteran was serving on an aircraft carrier when a Fud (type of aircraft) lost an engine and had to use a barrier to land on the ship. The Veteran was on the cat walk on the back of the ship at the time. Once the plane cleared him, he ran across the flight deck with a fire extinguisher to put out any fires and get people out. When the plane rebounded from the barrier, one of its propellers hit the Veteran in the head and split his helmet open. He did not lose consciousness but bleeding resulted in three stitches and he was diagnosed with a concussion on the ship. He never received medical treatment but took aspirin and Vicodin. The Veteran suffered headaches for a year following the injury before it was considered resolved. He began suffering from headaches again in 2005, accompanied by memory impairment. In April 2013, a VA examiner diagnosed the Veteran with residuals of a head injury. Similarly, the June 2017 examiner also noted mild impairment of memory and mild or occasional headaches. The April 2013 diagnosis of head injury residuals satisfies the current disability element of the service connection claim. Similarly, the second element is met as the Veteran sustained a head injury while serving on an aircraft carrier as illustrated above. As to a nexus between the in-service event and the current disability, the physician who conducted the April 2013 VA examination and prepared an August 2016 addendum indicated that the Veteran's cognitive problems were due to a non service related head injury. However, there is no evidence of a non service related head injury. The June 2017 VA examiner concluded that it was less likely than not that the Veteran's current symptoms are not related to the head injury occurred in service because "he was fine for 33 years." That opinion does not, however, take account of the Veteran's lay statements and is therefore inadequate. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The Board has remanded this claim multiple times for medical opinions and the resulting opinions have each been inadequate. Another remand for yet another medical opinion at this point could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Given the diagnoses of head injury residuals and the fact that the only head injury indicated by the evidence of record occurred during service, the evidence is at least evenly balanced as to whether the Veteran has residuals of the head injury he sustained in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of head injury is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). ORDER Entitlement to service connection for residuals of head injury is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs