Citation Nr: 1804376 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 12-18 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of a head injury, to include dementia, memory loss, a neurocognitive disorder, and headaches. 2. Entitlement to service connection for a foot disability. WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard of North Carolina from October 1977 to January 2000, to include periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in September 2013, and at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2015. Transcripts of both hearings are of record. The above issues, along with the additional issue of entitlement to service connection for bilateral hearing loss, were previously before the Board in April 2015 where they were remanded for additional development. In a rating decision dated August 2017, the RO granted the Veteran's service connection claim for bilateral hearing loss. As this represents a full grant of the benefit sought on appeal as to that issue, that claim is no longer in appellate status. The remaining claims have been returned to the Board for further adjudication. FINDINGS OF FACT 1. The probative, competent evidence is against a finding that the Veteran is suffering from residuals of an in-service head injury. 2. The probative, competent evidence is against a finding that the Veteran has a foot disability that was caused or aggravated by his military service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for residuals of an in-service head injury have not been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for establishing service connection for a foot disability have not been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has not 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 will be granted on a direct basis if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Additionally, 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 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Further, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of a Head Injury The Veteran's service treatment records reflect a May 1982 accident report noting that he struck his head which caused a laceration requiring sutures. The Veteran asserts that he currently suffers from residuals of this head injury that are manifested by symptoms that include headaches and memory loss. For the reasons that follow, the Board finds that service connection is not warranted. A report of medical history in February 1996 notes the Veteran reporting being in good health with no medical complaints, and contemporaneous physical examination indicated no head or neurologic abnormalities. Upon separation from the National Guard in January 2000, physical examination of the Veteran was normal, with no noted residuals of a head injury. A Social Security administration (SSA) disability report that indicates a disabled date of December 2001 notes the Veteran appearing to not have difficulty with understanding, coherency, or concentrating. Magnetic resonance imaging (MRI) of the Veteran's brain was performed in June 2004 after a fainting spell. The results were negative. A January 2005 emergency room record notes a headache complaint, with no diagnosis or assessment. The Veteran denied a history of migraines, chronic headaches, cluster headaches, or posttraumatic headaches. The Veteran was released later that day. Private treatment records dated in 2010 show the Veteran was prescribed an Exelon patch (a cognition-enhancing medication) with nothing further. A June 2013 VA treatment record notes the Veteran complaining of a headache and reporting occasional light headedness. No assessment was recorded. The remaining treatment records of evidence - to include VA records, private records, and records furnished by SSA - are negative for any treatment for chronic headaches, memory loss, or any other possible residuals of a head injury. While the Veteran asserted in his hearing testimony before the undersigned that he has been diagnosed with dementia, treatment records are negative for such a diagnosis. A VA traumatic brain injury (TBI) examination was afforded to the Veteran in February 2014, where he reported headaches and memory problems. The Veteran described both the aforementioned May 1982 in-service head injury, as well as a second incident where he ran into a trip wire while doing field exercises and the blast simulator left him dazed. The Veteran reported that an MRI performed 3 months prior was normal. Physical examination revealed objective evidence of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; as well as subjective symptoms of mild or occasional headaches and mild anxiety. No opinion as to the etiology of the Veteran's headaches was provided. However, the Board notes that a VA mental disorders examination was also provided in February 2014. The Veteran reported memory problems for 20 years. A Saint Louis University Mental Status (SLUMS) test administered upon examination was 20 out of 30, indicating a score in "the dementia range," and the examiner diagnosed the Veteran with a mild neurocognitive disorder. As to an etiology, the examiner opined that the Veteran's memory complaints were less likely than not incurred in or caused by his in-service head injury, explaining that the Veteran's head injury in service was minor, and that he has multiple medical problems that are likely contributing to his cognitive difficulties. The examiner also noted that the exact amount of the Veteran's cognitive decline was unclear, as his baseline cognitive level was unknown. Upon Board remand, an additional VA TBI examination was afforded to the Veteran in April 2017. The Veteran again reported headaches since 1998 and memory problems for the previous five years. The Board notes that, while the Veteran did reiterate to the examiner his May 1982 head injury, he did not report the blast exposure that he noted in the previous examination. He instead noted two previously-unreported in-service vehicle accidents. Upon physical examination, objective evidence of mild impairment of memory, attention, concentration, resulting in moderate functional impairment was again noted. However the examiner indicated no subjective symptoms or any mental, physical, or neurological conditions, or residuals attributable to a TBI. The examiner also noted a negative June 2004 MRI. The examiner opined that, although the Veteran technically met the criteria for a TBI, he had no residual symptoms related to an in-service head injury, explaining that his headaches did not begin until 1998, and that his memory difficulties - which the Veteran reported began only five years prior - were more likely related to his multiple other medical problems. There is no other evidence in conflict with the findings upon VA examination. As such, the most probative evidence is against the Veteran's claim and the claim must be denied. While the evidence reflects a confirmed in-service head injury, the Veteran's asserted headaches and memory problems were not noted until years after service, which the examiners opined are instead more likely due to his numerous medical problems as his head injury was minor. A veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Board acknowledges the Veteran's lay evidence regarding the existence of residuals of in-service head trauma. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the diagnosis and etiology of such a disability is not competent medical evidence. See also Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Moreover, the Board finds some of the Veteran's statements to be inconsistent and conflicting. First the Veteran's report of multiple head injuries has altered over the years from being exposed to a simulated blast to involvement in motor vehicle accidents, none of which was reported. Second, the Veteran has made conflicting statements regarding the onset of his asserted symptomology. While the Veteran reported memory problems for 20 years upon VA examination in February 2014, he reported to the VA examiner in April 2017 that his memory problems began five years prior. Given the above, the Board finds the Veteran's report of injuries and post-service symptomology to be lacking credibility. In any event, the Board finds the medical opinions more probative than the Veteran's lay statements as the opinions were offered by medical professionals after examination of the Veteran and consideration of the history of the disability, and as the opinions, when taken as a whole, are supported by clear rationale. Foot Disability The Veteran also asserts that he has a current foot disability that was caused by an in-service injury. Specifically, at his hearing before the undersigned VLJ, the Veteran stated that he suffers from ongoing bilateral foot pain which began after a mortar tube fell on his right ankle and foot during a period of ACDUTRA. The Veteran claimed in his September 2013 testimony before the DRO, that he now has arthritis in his feet. Service treatment records, to include physical examinations and reports of medical history, are silent for any foot injury or complaints of foot pain. A physical examination upon separation from the National Guard in 2000 noted normal extremities. According to SSA records, the Veteran filed for disability benefits in December 2001 due to problems with his back, diabetes mellitus, hypertension, knees, legs, obesity, and a hernia. However, no there were no complaints of foot pain at the time. Arthritis is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Multiple VA treatment records during the course of the appeal note ongoing bilateral foot pain treated with pain medication. Diabetic neuropathy, degenerative joint disease, and fasciitis are listed as active problems in several VA records. The Board notes that service connection is not in effect for the Veteran's diabetes. A December 2003 statement from the Veteran's private physician in support of his claim for SSA benefits notes a loss of sensation to varying degrees in both feet, and attributes this to the Veteran's diabetic neuropathy. A September 2008 VA treatment record notes the Veteran complaining of "burning pain in the midpart of the right foot," as well as numbness and tingling bilaterally. Physical examination of the right foot revealed plantar fasciitis and diabetic neuropathy. An April 2009 VA treatment record notes a diabetic foot examination where the Veteran reported no longer having heel pain after being provided diabetic shoes. An additional diabetic foot examination in October 2009 noted occasional tingling in the feet, and that his fasciitis had resolved. At a VA examination in March 2014, the Veteran reported on and off pain since his alleged in-service injury. Upon physical examination, however, the examiner diagnosed no foot condition. X-rays of the feet revealed no abnormalities, to include arthritis. The examiner did report that the Veteran used a walking stick, but noted that this was for ankle and knee conditions. As there is no other evidence in conflict with the findings upon VA examination, the evidence is against a finding that the Veteran has a chronic foot disability that was caused or aggravated by his military service. Rather, the evidence suggests that the Veteran's ongoing foot pain is related to neuropathy caused by his nonservice-connected diabetes. In addition, arthritis has not been diagnosed in the Veteran's feet. While a 2008 diagnosis of fasciitis is noted in the Veteran's VA treatment records, this appears to have resolved by 2009 with no further complaints. The evidence also does not suggest any fasciitis present during the appeal period was related to service. Rather, at the Veteran's January 2000 separation examination, clinical evaluation of the feet was normal which suggests this condition was not incurred during service. Thus, the Veteran's claim must be denied. The Board acknowledges the Veteran's various lay assertions that he believes he has a foot disability that is related to service. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d 1376-77. In this regard, the etiology of any foot disability is a matter not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to its etiology is not competent medical evidence. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 55-57. ORDER Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for a foot disability is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs