Citation Nr: 1806231 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-28 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for residuals of a traumatic brain injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO denied service connection for residuals of a traumatic brain injury. Jurisdiction for the appeal currently resides with the Chicago, Illinois RO. In March 2016, the Veteran testified before a Veterans Law Judge (VLJ) other than the undersigned at a Travel Board Hearing in Chicago, Illinois. A transcript for that hearing is of record. In October 2017, the Board notified the Veteran that the VLJ who presided over the March 2016 Travel Board Hearing was no longer a Board employee. In a November 2017 written statement, the Veteran indicated that he did not wish to appear at another Board hearing and requested that the Board consider this matter on the evidence of record. In February 2017, the Board remanded this matter for additional development. In his March 2016 Travel Board Hearing, the Veteran testified that he has symptoms related to cervical dystonia, which is also identified as spasmodic torticollis. As noted by the VLJ during that hearing, the Veteran's claim for entitlement to service connection for, inter alia, acute spasmodic torticollis was denied in May 1969. The Veteran did not appeal that rating decision. In March 2011, the Veteran filed a petition to reopen his claim for entitlement to service connection for cervical dystonia. In a March 2013 rating decision, the RO denied Veteran's petition to reopen because he had not submitted new and material evidence. The Veteran did not appeal the March 2013 rating decision and it is therefore final. Therefore, the Veteran's claim for entitlement to service connection for cervical dystonia or spasmodic torticollis is not before the Board. Accordingly, the Board will not discuss evidence of record related to that condition, to include treatment records and the Veteran's contentions that the symptoms of cervical dystonia have persisted since his separation from active service. FINDING OF FACT A traumatic brain injury was not shown in service, and the Veteran does not currently have any residuals of a traumatic brain injury. CONCLUSION OF LAW The criteria for service connection for residuals of a traumatic brain injury have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. Those duties have been satisfied here. A January 2010 letter satisfied VA's duty to notify. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). That letter notified the Veteran of what evidence he was responsible for compiling, what evidence VA would compile on his behalf, what evidence was necessary to substantiate his claim entitlement to service connection, and how the RO determines effective dates and assigns ratings. Nothing more is required here. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002). VA also afforded the Veteran adequate assistance to develop his claim. His service and post-service treatment records have been obtained and associated with his claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Board remanded this action in February 2017, instructing the RO to attempt to locate treatment records from a hospital in the Panama Canal Zone, a private provider in Florida, and a university hospital in Chicago, Illinois. The RO has collected or attempted to collect those records and has associated the available records with the Veteran's claims file. The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim, and the Board is unaware of any outstanding evidence. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran received a VA examination in March 2010. Per the Board's remand order, the RO requested an addendum opinion in May 2017. The VA examiner physically examined the Veteran in March 2010. Both VA examiners reviewed the Veteran's claims file and medical records, considered his statements and complaints, provided a report of his symptoms, and provided opinions supported by rationales. The Board deems the March 2010 VA examination and the May 2017 addendum opinion adequate to adjudicate the issue on appeal. See Barr, 21 Vet. App. at 311; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because all remand instructions issued by the Board have been substantially complied with, this matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board will therefore proceed with the adjudication of this appeal. II. Laws and Regulations Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, certain enumerated diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in §3.309(e). 38 C.F.R. § 3.307(a)(1). II. Analysis The Veteran contends that spinal fluid leaking from a cracked temporal bone was a residual of a traumatic brain injury incurred while he was on active duty in the Panama Canal Zone. The Veteran reported that he and an unnamed friend were returning to the barracks following a trip to the Post Exchange when they were beaten and mugged. The Veteran testified that he was kicked and stomped in the head before regaining his footing, at which time his assailants relented. Service treatment records dated July 1966 confirm that the Veteran was struck on the right jaw. The examination revealed minimal tenderness approximately 3cm away from the temporomandibular joint. The Veteran's jaw was bruised, but the there were no fractures of the condyle. The Veteran's service treatment records do not document any follow-up examinations related to the Veteran's jaw injury, and the Veteran's October 1967 examination upon separation from active service did not note any residuals from a traumatic brain injury or the jaw contusion. At his March 2016 Travel Board Hearing, the Veteran testified that he had constant nasal drip starting sometime in the 1970s, though he did not recall the exact date of onset. The Veteran testified that a private physician in Florida diagnosed the drainage as post-nasal drip and installed tubes in the Veteran's ears, which resulted in fluid leaking therefrom. In 2005, the Veteran was examined by an ear, nose, and throat physician in New York who identified the fluid as spinal fluid leaking from a crack in the Veteran's right temporal bone. The Veteran reported that his physician informed him that the cracks were most likely due to head trauma. In July 2005, the Veteran had a craniotomy to patch the temporal bone to prevent further leakages of spinal fluid and to protect the Veteran from threats of infection. In his March 2016 Travel Board Hearing testimony, the Veteran reported that the leaking had ceased. A March 2010 VA examination developed the Veteran's history, to include a detailed account of the mugging while the Veteran was in the Panama Canal Zone. The VA examiner found no evidence of any severity of traumatic brain injury, noting that the Veteran denied a history of symptoms associated with traumatic brain injuries, to include, headaches, dizziness, vertigo, mobility problems, ambulatory problems, fatigue, malaise, memory impairment, other cognitive symptoms, or behavioral changes. Reflex, sensory, motor, cognitive, and neuropsychological examinations and tests were all normal. Based on those examinations and tests, the VA examiner found no clinical evidence of a traumatic brain injury. The examiner noted the Veteran's July 2005 surgery to repair his temporal bone. The VA examiner concluded that the veteran's fluid leak caused by cracked temporal bone was less likely as not the same as or was a result of the jaw injury incurred during active service. The VA examiner reasoned that the Veteran's service treatment records failed to show any treatment for residuals from the jaw injury, and the leaking of spinal fluid was not identified until nearly 40 years after the Veteran's separation from active service. A May 2017 VA addendum opinion-based on a review of the Veteran's complete claims file-concluded that it was not likely that the Veteran suffered a traumatic brain injury in service. Based on the VA examiner's review of the record, the examiner concurred in the opinion from the March 2010 VA examination. The Board concludes that the March 2010 VA examination and the May 2017 VA addendum opinion are highly probative. The March 2010 VA examination is predicated on a physical examination, and both examiners considered the Veteran's lay statements and performed a detailed review of the Veteran's claims file. Based on the probative evidence of record, the Board concludes that the Veteran is not entitled to service connection for residuals of a traumatic brain injury. "Congress specifically limits entitlement for service-connected diseases or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (citations omitted). The Veteran, through a January 2015 statement of his representative, cited Brammer when noting that a present disability is needed for entitlement to service connection. Here, as in Brammer, the probative evidence of record shows no proof of a present disability. The March 2010 VA examination and the May 2017 addendum opinion noted that the Veteran did not complain of signs or symptoms associated with traumatic brain injuries, and, therefore, concluded that there was no clinical evidence of a traumatic brain injury and that it is not likely that the Veteran suffered a traumatic brain injury in service. Moreover, despite the Veteran's long history of spinal fluid leaks starting in the 1970s, the Veteran testified that the July 2005 surgery resolved the leaking. Indeed, he testified in March 2016 that he was not "claiming that [he] still [had] it." In reaching this conclusion, the Board has considered the Veteran's statements. In his June 2010 Notice of Disagreement, the Veteran stated that he could "only conclude that the spinal leak was caused by" the jaw injury resulting from the mugging. Although lay persons are competent to provide opinions on some medical issues, establishing a causal link between the in-service event and the leaking of spinal fluid due to a cracked temporal bone falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran's statement is not competent evidence. Moreover, the statement is inapposite; the temporal bone has been surgically repaired, and the Veteran no longer experiences leaking spinal fluid. In a February 2017 statement, the Veteran reports that he suffers "all symptoms" mentioned in an article from Dystonia Medical Research Foundation. The symptoms identified in that article include concussions, loss of consciousness, headache, confusion, lightheadedness, dizziness, blurred vision or tired eyes, ringing in the ears, bad taste in the mouth, fatigue, a change in sleep patterns, behavioral or mood changes, and trouble with memory, concentration, attention, or thinking. The article notes severe traumatic brain injuries may include nausea and vomiting, convulsions, slurred speech, dilation of one or both pupils, weakness or numbness in the extremities, loss of coordination, and increased confusion, restlessness or agitation. The article also notes that traumatic brain injuries may be associated with the delayed onset of cervical dystonia. While the Veteran is competent to report his symptoms, the Board concludes that the Veteran's statement is not competent evidence of a current disability due to residuals of a traumatic brain injury. Although lay persons are competent to provide opinions on some medical issues, the diagnosis of residuals related to a traumatic brain injury falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1376-77. The record does not show that the Veteran has specialized knowledge or expertise to indicate he is capable of providing a competent medical opinion; therefore, the Veteran's statement regarding his symptoms are insufficient to show a current disability residual to a traumatic brain injury. Moreover, his statement is inconsistent with other evidence of record, to include the March 2010 VA examination wherein the Veteran did not endorse experiencing the symptoms identified in the article and his March 2016 testimony regarding his symptoms. The Board has also considered the Veteran's contentions that he was exposed to Agent Orange while on active duty in the Panama Canal Zone. According to his March 2016 testimony, the only evidence the Veteran has that he was exposed to Agent Orange are the articles from the popular press and online message boards that he submitted in September 2011. That evidence is generic and has very little probative value regarding whether the Veteran was exposed to Agent Orange. Moreover, in response to a Personnel Information Exchange System request from the RO, the National Personnel Records Center (NPRC) reported in April 2013 that the Veteran's military personnel records show that the Veteran was not exposed to herbicides while on active service. The Joint Services Records Research Center (JSRRC) Coordinator for VA determined that evidence was insufficient to request further development from the JSRRC. The Board concludes that the NPRC response and VA's determination are probative evidence and significantly outweigh the articles and online materials submitted by the Veteran. Thus, the Board concludes that the Veteran was not exposed to herbicides while on active service. Because the weight of the evidence is against the Veteran's claim for entitlement to service connection for residuals of a traumatic brain injury, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for residuals from a traumatic is therefore denied. ORDER Entitlement to service connection for residuals of a traumatic brain injury is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs