Citation Nr: 20004366 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 13-35 758 DATE: January 17, 2020 ORDER Entitlement to service connection for residuals of head injury, to include various disorders, is denied. FINDING OF FACT The objective medical evidence shows residuals of head injury, to include various disorders, are not caused by an event, injury, or illness during active service, nor did headaches manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for residuals of head injury, to include various disorders, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from October 1963 to October 1965. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2018). Establishing service connection generally requires: (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 present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including migraine headaches, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b).   Entitlement to service connection for residuals of head injury, to include various disorders. The service treatment records (STRs) show in the May 1963 enlistment examination and the October 1963 active duty examination the body-segment category of “head, face, neck, and scalp” was checked off as normal. In the May 1963 examination, the Veteran denied past or current frequent or severe headache, dizziness or fainting spells, frequent trouble sleeping, or loss of memory or amnesia. Both exams, as well as the separation examination note a 1-inch scar in the middle of the forehead. In September 1964, the Veteran presented during sea duty with complaints of a three-day dull, frontal headache. The in-service treatment provider states the Veteran’s report that he noted this ever since presenting in July 1964 with cold symptoms. Later in September 1964, the Veteran developed serous sinusitis, noted by the treatment provider as causing pressure in the right-maxillary sinus, which “creates” the headache. In October and December 1964, the Veteran presented with recurrent stuffy nose, but no cold and was later assessed with rhinitis. In June 1964 he had a scalp laceration sutured when he reported to sick bay. There is no history of loss of consciousness or particular head trauma. When headaches are reported during service they are associated with nasal problems. In the September 1965 separation examination, the body-segment category of “head, face, neck, and scalp” was again checked off as normal. The Veteran denied past or current frequent or severe headache, dizziness or fainting spells, frequent trouble sleeping, or loss of memory or amnesia. The post-service treatment record shows a September 2004 medical statement of Dr. M.E.G., stating the Veteran “does admit to a history of head trauma with syncope while in the military which could be related to his arteriovenous malformation.” In January 2006, another medical statement by Dr. M.E.G. states the Veteran “suffered head trauma in 1964, which exacerbated his headaches. He was diagnosed with arteriovenous malformation in the brain requiring surgery in 1998. This could have aggravated this condition and caused headaches.” A February 2006 private treatment neurology note states the treatment provider, Dr. E.F., noted the Veteran’s reports of his in-service head concussion and scalp laceration requiring sutures, “but I couldn’t find any evidence of such.” He also informed the Veteran that neurological disorders, to include chronic tension headaches and chronic, moderate obstructive sleep apnea, are acquired disorders which have no relationship to his head injury. A VA outpatient note in January 2007 noted the Veteran presented with a dry cough, sinus drainage and headaches “off and on.” A March 2007 VA traumatic brain injury note assessed the Veteran with a mild traumatic brain injury (TBI) and, in relevant part, the Veteran has cognitive deficits, post-traumatic headaches, also “described as mild.” In a VA traumatic brain injury note in December 2007, the diagnostic impression stated “TBI, well adjusted.” Additionally, persistent afternoon headaches were noted. In June 2007, the Veteran’s private treatment provider, Dr. S.K., produced a medical statement, in which he states the Veteran was struck on the frontal area of his skull by a porthole cover, sustaining a concussion and was “knocked unconscious for several hours. Documentation in his medical record supports reports of headache pain throughout the interval of his service in Southeastern Asian Theater (one year). [The Veteran] is receiving treatment at the Atlanta VAMC for a TBI related to this [] injury. Over the years there is documentation in his medical record of bitemporal headache pain.” Dr. A.S.’s August 2007 medical statement states the Veteran “suffers from chronic headaches and depression related to a concussion he suffered while in the military (confirmed by review of his military records).” The September 2007 private medical statement of Dr. A.G. states the Veteran “has been evaluated in the neurology clinic for the Late Effect of Intracranial Injury without mention of Skull Fracture” A February 2009 medical statement by Dr. A.S. states the Veteran reports being knocked out by a porthole cover, reports that this has caused him associated problems with his memory and reports having sleep problems while in service. In May and October 2009, the Veteran was variously assessed with ongoing symptoms of TBI and “TBI -stable.” In April and June 2011, the Veteran reported memory problems. However, in a May 2012 mental status examination, the Veteran’s memory was noted as intact. Later in the month, he reported that his headaches were improved with medication and he denied headaches in June 2012. In monthly VA treatment notes from May through December 2012, the Veteran denied dizziness or light-headedness. In January 2013, headaches were noted as less frequent. In a September 2013 VA opinion, the VA examiner stated the Veteran’s cognitive disorder is less likely than not (less than 50 percent probability) related to his in-service head injury. She explained: Rationale: As I am not a medical provider, I cannot speak to the claimant’s headaches and tinnitus and whether or not these disorders are related to his reported head injury. However, it is less likely than not that the claimant’s cognitive problems are related to his in-service head injury. That is, there are no in-service medical records to support that the claimant sustained a head injury. The claimant reports having achieved just a 7th grade education due to significant academic problems. Further he has been diagnosed with depression since the 1980s which can also contribute to cognitive problems. Also, the claimant has several medical conditions that could contribute to problems concentrating. Finally, the claimant sustained a 30+ year career as a truck driver suggesting that he was able to follow directions and instructions to a degree. Therefore. it is more likely that his cognitive problems are related to other existing conditions. In August 2013, based on his history of head injury and complaints of memory loss, the Veteran underwent a MRI at VA. The study revealed the following: There is mild brain volume loss with relative prominence of the sylvian fissures, otherwise the study is unremarkable, for the patient age, without significant intra-axial lesion, intracranial hemorrhage or acute intracranial process. No suspicious intracranial mass or contrast enhancement. Focal filling defect is noted within the right transverse and sigmoid venous sinus which is consistent with patient’s clinical history of previous AV [arteriovenous] fistula coiling. The contrast enhanced MRA study of the brain demonstrates no abnormal arteriovenous intracranial shunt or residual AV malformation. The major intracranial vascular structures are patent. In an October 2013 VA examination for headaches, the VA examiner diagnosed the Veteran with headache syndrome, but offered no opinion for service connection. September through December 2013 VA treatment notes show improvement of headaches and less frequency. Although in this period and through to January 2014, the Veteran consistently reported his memory was worsening and he believed it was due to his in-service head trauma, the Veteran reported in an October 2013 mental status examination that his memory in fact was intact and October and December 2013 VA psychiatric specialty examinations contain mental status examination findings showing both his recent and remote memory were normal. Although presenting to VA in October 2014 with reports of vertigo, being lightheaded and unsteady on his feet. Also, in October 2014, the Veteran reported dizziness he attributed to dental surgery. Later in October 2014 and in November 2014, the Veteran reported that, after ceasing certain medications, his dizziness had subsided completely. Monthly VA psychiatric specialty examinations between March and November 2014 again showed recent and remote memory as normal. Between September 2014 and March 2019 VA outpatient notes show review of systems responses indicating no headaches and no dizziness. Although the Veteran reported in February 2017 and December 2018 inconsistencies in his memory, VA psychiatric specialty examinations conducted between January 2015 and January 2019 contain mental status examination findings showing both the Veteran’s recent and remote memory again to be normal. In a September 2019 VA examination for headaches, the VA examiner diagnosed the Veteran with headaches, NOS (not otherwise specified). He opined that the Veteran’s headaches disorder is less likely than not (less than 50 percent probability) related to his in-service head injury. He explained: RATIONALE: Less likely than not as there is no report of chronic headaches post injury during military until separation of military service. The complaints made in the June 1964 and September 1964 STR[]s are not consistent with the symptoms currently reported describing the headaches. There is no documented medical record evidence from ETS [expiration – term of service] in 1965 until 2006. Headaches are reported after being diagnosed and treated for AVM [arteriovenous malformation] in since 1988 per attached note. Takes Fioricet and has an appt with Dr. [C.] whom he had met years ago at Emory during the treatment of his AVM. DX [diagnosis]: Chronic, tension ty[]pe migrainous headaches. Resolved (treated) cerebral AVM in 1988. No etiology of current headache disorder related to the veteran[’]s active service. The Veteran has supported his claim by the submission of numerous lay statements by him and by others, which have helped the Board in understanding better the nature and development of the Veteran’s disorder and how it has affected him. The Board has read the statements, submitted in October 2010, January 2005 and January 2006, by shipmates L.H.T. and R.W. and by the Veteran himself, recounting the details of the shipboard injury to the Veteran’s head, as well as the statements of the Veteran’s son, daughter, his brother, his sister, and, again, by the Veteran, regarding current symptoms. The Board recognizes that lay persons are competent to report on events they have observed or which are within their personal knowledge and there would be no reason to doubt their credibility. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). So too, ordinarily, the Veteran himself would be competent to provide statements of symptoms which he experiences or are observable to his senses and, once again, the Board would have no reason to doubt his credibility. Nonetheless, the Board considers that some of the Veteran’s statements require closer scrutiny. For example, in the first of his lay statements submitted in November 2005, after giving details of his in-service head injury, the Veteran adds that he has endured severe headaches and frequent ringing in his ears ever since that accident occurred. He then adds: “I did not realize until after being involved in a car accident in 1998 that my headaches and ringing in my ears had anything to do with that accident onboard ship. I bumped my forehead in the 1998 car accident, which resulted in my having to have AVM [arteriovenous malformation] done at Emory University Hospital in Atlanta, Georgia. I believe that the bump to my head during that car accident ex[acerbated] my former head injury of 1964. The severe headaches and the ringing in my ears became much worse after the car accident.” However, the in-service injury was incurred in 1964, approximately 34 years prior to the automobile accident. As the summary of the record of treatment above shows, no in-service head injury or symptoms such as headaches or dizziness are reported in the September 1965 separation examination. As noted, in service headaches were attributed to nasal pathology not any head trauma. There is no post-service record of treatment until Dr. M.E.G.’s September 2004 medical statement, approximately 40 years after separation from active service. Moreover, Dr. M.E.G. states the in-service injury “could be” related to the 1998 AVM injury. This is speculative language and Dr. M.E.G. provides no rationale to explain how she arrived at her conclusion. For that reason, the Board assigns to it very limited probative weight. In short, the Veteran’s own conclusion that the 1998 automobile accident exacerbated the symptoms of his in-service head injury is not supported by medical evidence. Additionally, the Board notes in the Veteran’s second statement submitted in November 2005 that he had two other automobile accidents, in 1965 and 1966, both due to falling asleep at the wheel. Although not entirely clear why the Veteran gives this information, appearing in the statement as it does under the heading of “Traumatic Brain Injury,” the Board can only assume that he further believes that overwhelming fatigue or some disorder of sudden sleepiness or syncope is also due to the in-service head injury. Once again, this is conjecture based on simply looking to contemporaneous or successive events---in-service head injury, followed by two automobile accidents due to sleepiness, followed by a conclusion that the former causes sleepiness and, therefore, the accidents. Without some basis in observations during treatment, findings on examination or reference to accepted medical literature, the Board, in making its factual determinations, cannot make positive conclusions as to causation simply by stringing together events, symptoms and preferred outcomes. Moreover, there are other contentions that he has a sleep impairment related to in-service exposures, not relevant to this appeal. The Board must emphasize that the Veteran is not competent to diagnose cognitive and neurological disorders, interpret accurately clinical findings pertaining to them or draw reasonable inferences as to causation, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For these reasons, the Board must assign less probative weight to the Veteran’s statements than to what the record of treatment and examination documents. As the summary of the record above shows, the STRs, whether complete or not, contain the September 1965 separation examination in which finding pertaining to the head were normal and the Veteran did not report any symptoms which could possibly be related to a head injury. The record does not indicate the Veteran sought treatment for residuals of a head injury directly upon separation from active service, nor did the severity of any such symptoms impel him to do so in the years following until, at the earliest, September 2004. Again, scarring on the forehead was noted at entry into service. When seen for a laceration in 1964, there was no history of loss of consciousness nor are there any reported signs or symptoms of concussion. Finally, in-service headaches were attributed to nasal pathology and were not reported proximate to the laceration of the scalp in 1964. Dr. M.E.G.’s second medical statement in January 2006 states the Veteran’s in-service injury exacerbated his headaches, by which suggests she believes the headaches existed prior to the incident. Yet, the STRs show only July-through-September 1964 treatment for headaches which appear to be associated with cold symptoms at the very least and at most, serous sinusitis. However, Dr. M.E.G., notes that the 1998 AVM injury “could have aggravated” this condition and caused headaches. Once again, this statement provides no determinative opinion and there is no rationale to explain why Dr. M.E.G. concluded this. Dr. A.S.’s August 2007 statement simply states the Veteran suffers from headaches related to a concussion in service, as confirmed by military records. The Board does not agree a causative relation is so confirmed, for the reasons already stated. Significantly, Dr. A.S.’s February 2009 begins each of three relevant sentences with “he reports,” referring to the Veteran, thereby indicating that Dr. A.S. simply is giving a narrative of injury and subsequent symptoms as the Veteran has given it to him. Dr. S.K’s June 2007 medical statement observes that documentation in the medical record supports reports of headache pain throughout the one-year interval of the Veteran’s service at sea. However, as already stated, the STRs show headaches, but with no conclusive relation to the in-service injury, but rather to inflamed sinuses. After September 1964, no further mention is made of headaches and the Veteran did not report them or further symptoms associated with a head injury at the separation examination. For the reasons stated, the opinions of Dr. M.E.G.. Dr. A.S. and Dr. S.K. merit only limited probative weight. As it is, Dr. E.F.’s February 2006 medical statement notes that, not only could he not find evidence of the suturing of the head wound, but that he unequivocally informed the Veteran such neurological disorders as headaches and sleep apnea are “acquired disorders,” bearing no relation to the head injury. Furthermore, as already stated, the record gives no indication of the manifestation of headaches to a compensable degree within a year of separation from active service. Additionally, because they were never identified directly after active service, it would be impossible to establish continuity of symptomatology following upon service and, as just stated, the subsequent record does not reflect this. Consequently, the presumption of service connection for headaches as a chronic disease is not available. The Board at this point briefly notes that the December 2019 Appellate Brief asserts that “[t]he DTA [duty to assist] letter that was mailed on April 27, 2018, made no mention of the condition for records that were being sought, nor did the AOJ [Agency of Original Jurisdiction] mention if it was to support a claim for an appeal.” The Board understands this statement to assert that the Veteran would not have known what records to supply or direct VA to obtain and that if he had known it was for the appeal now before the Board, different and/or more records would have been obtained. The Board will simply note that the letter followed by only approximately two and half months upon the February 2018 Board decision reopening the claim for residuals of head injury and remanding it for the most recent treatment records and a new VA examination. It is not only reasonable to presume that the Veteran would be quite aware of further development of the very claim then on appeal, to include obtaining records, but it in fact it would unreasonable presume anything else, particularly so as a notification letter and a copy of the Board’s decision was sent to the Veteran on the same day the decision was issued on February 9, 2018. Moreover, the Board further notes by way of example that similar letters were sent to the Veteran in September 2010 and May 2011 regarding both the claim for residuals of head injury and post-traumatic stress syndrome (PTSD). All letters, including the February 2018 letter, state, “We need additional evidence from you.” By the time of the February 2018 letter, the Veteran would be presumed to know the import of such a letter and of the above language in particular. If he wanted his claim to proceed, then he would have to understand that the duty to assist is a two-way street. If a veteran wishes help in determining his or her claim, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant’s active participation in a claim for VA benefits). For the reasons stated and based on the objective medical evidence, the Board finds the preponderance of the evidence is against a claim of service connection for residuals of head injury, to include various disorders. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.