Citation Nr: 1803420 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-04 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the residuals of a head injury. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1991 to January 1992. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the September 2009 rating decision, the RO denied service connection for a traumatic brain injury. This issue was previously remanded by the Board in July 2016. FINDING OF FACT It is less likely than not that the Veteran sustained a head injury during his active duty service. CONCLUSION OF LAW The criteria for establishing service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1) (2017); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of a brain hemorrhage or brain thrombosis to a degree of 10 percent within one year from the date of separation from such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. 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 might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Even if there were evidence that the Veteran's current encephalocele and memory loss are manifestations of a brain hemorrhage or thrombosis, as discussed below, the Veteran's encephalocele and memory loss did not have their onset for many years after the end of his active duty service. Therefore presumptive service connection is not warranted. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he fell, injuring his back and head, during his active duty service and that the effects of those injuries have persisted to the present. The residuals of the back injury are already service-connected. The Veteran's service treatment records note that he fell off of a truck onto his back in August 1991. On the day of the fall, the Veteran reported decreased range of motion and a tingling sensation running into his right leg but did not report any head injury or symptoms. The record notes that the Veteran reported no loss of consciousness or "similar complaints" at the time of the accident. Treatment providers at that time diagnosed a back strain but did not diagnose a head injury. Two days later, the Veteran reported pain radiating into his cervical spine and shoulder. Treatment providers again diagnosed a back strain. There was again no mention of any head injury or symptoms. The Veteran's service treatment records do not contain a separation examination report. A private treatment provider noted in May 2009 that a CT scan showed a defect in the tegmen of the middle ear on the left. The provider opined that "[w]ith the patient's history of a head injury while in the service, falling off a truck, [the provider felt] that there could have been a fracture in that area that has finally resulted in a small encephalocele, with resultant CSF leak." In a June 2009 letter, the same private treatment provider reported that the Veteran "had some CSF otorrhea, after a myringectomy" and that a "CT scan reveals a defect present in the middle ear integument." The provider opined that there was a "good possibility" that the Veteran's head injury in service "might have begun this process and contributed greatly to it." The Board notes that the May 2009 and June 2009 medical records employ speculative language to discuss the possibility of a relationship between the in-service fall and the Veteran's symptoms. Speculative language such as does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4 (1993); Utendahl v. Derwinski, 1 Vet. App. 530 (1991); Stegman v. Derwinski, 3 Vet. App. 228 (1992); Obert v. Brown, 5 Vet. App. 30 (1993). The May 2009 and June 2009 records are not probative evidence. Private treatment records from September 2009 note a diagnosis of a post-traumatic left temporal encephalocele and that the Veteran underwent a left tympanoplasty with mastoidectomy. Findings during that surgery included a brain hernia over the lateral semicircular canal, which was cauterized and excised. In his February 2012 substantive appeal (VA Form 9), the Veteran reported that his fall in service involved a head injury, with the fall causing him to lose consciousness, and that others woke him up before taking him to the medical unit, but his only concern at that time was his back. The Veteran was afforded a VA examination for the residuals of a traumatic brain injury in September 2016. The examiner reviewed the Veteran's records and noted that the Veteran was exposed to blasts, but no specific episode resulting in a true clinical concussion. The Veteran reported, and the examiner found, no symptoms other than mild memory loss. The examiner opined that the Veteran's history and clinical response were "not truly characteristic" of a typical traumatic brain injury. The examiner noted that the Veteran's medical records were silent for ongoing chronicity of a head injury. The examiner considered the private treatment provider's opinion but found that that provider's "conclusion of a possible head trauma almost 18 years after the event is speculative." The examiner opined that the Veteran's memory issues were more likely than not based on age and were not consistent with residuals of a traumatic brain injury. The examiner also noted that the Veteran's neurological examination was normal. The only evidence in favor of the Veteran's claim of a head injury in service consists of his own statements. The Board has the discretion to make credibility determinations and otherwise weigh the evidence being submitted, including the Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board may take the lack of contemporaneous medical records into account when weighing a veteran's lay evidence. See Buchanan, 451 F.3d at 1336. The passage of many years between service discharge and medical documentation of a claimed disability is also evidence against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes the Veteran's report that, even though the fall injured both his back and head and the head injury was severe enough to cause him to lose consciousness, the back injury was his primary focus at the time. However, on the day of the fall, the Veteran specifically denied any loss of consciousness or anything similar to it. Even if, as the Veteran reports, the primary concern on his mind when he entered the medical unit was his back injury, it is not credible that the Veteran, when specifically asked about a significant head injury in the medical unit by treatment providers on the day of that injury, would have denied it. The Board finds that the Veteran's report of his symptoms on the day of the accident is more credible and of greater probative value than his contradictory account decades after the fact. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). In addition, the September 2016 VA examiner's finding that the Veteran's symptoms are not consistent with a traumatic brain injury is persuasive. The Board notes the private treatment provider's opinions from May 2009 and June 2009, but that provider only found that there "could" be a relationship between the Veteran's encephalocele and an in-service head injury or that it is a "good possibility," which is not the same as a finding that a relationship is at least as likely as not. Moreover, the private provider's opinions are premised on the assumption that the Veteran injured his head during his active duty service, but there is nothing to indicate that this provider reviewed the Veteran's service treatment records or that the provider's assumption was based on anything other than an account which the Board has found not to be credible. For these reasons, the Board finds that the September 2016 VA examiner's opinion is of greater probative value than those of the private treatment provider. Furthermore, the Board has also considered whether service connection for the residuals of a head injury is warranted on a presumptive basis as a chronic disease. In this case, there is no evidence that he was diagnosed with or was otherwise shown to have a brain hemorrhage or brain thrombosis during service or within one year after separation from service and, as stated above, the Board has found that the Veteran's reports of a head injury in service are not credible. Therefore, this presumption is inapplicable in the current case. Because the preponderance of the evidence is against finding that the Veteran sustained a head injury from the fall during his active duty service, it follows that the preponderance of the evidence is also against finding that any encephalocele or memory loss the Veteran might now have are residuals of that injury. Because the preponderance of the evidence is thus against finding that the Veteran's encephalocele or memory loss are etiologically related to his active duty service, or that they had their onset within one year thereafter, entitlement to service connection for the residuals of a head injury is denied. ORDER Entitlement to service connection for the residuals of a head injury is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs