Citation Nr: 20021947 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 10-20 695 DATE: March 30, 2020 ORDER Entitlement to service connection for cognitive disorder/memory loss, to include as due to the service-connected soft tissue injury with lacerations on scalp, is denied. Entitlement to service connection for an acquired psychiatric disability, claimed as depression, to include as due to the service-connected soft tissue injury with lacerations on scalp, is denied. FINDINGS OF FACT 1. The Veteran’s cognitive disorder/memory loss was not first shown in service or for many years following service discharge, and it is not otherwise related to any disease or injury in service, including the service-connected soft tissue injury with laceration on scalp. 2. The Veteran’s current acquired psychiatric disorders, to include depression and mood disorder, did not have their onset during service or for many years following discharge from service and are not otherwise related to any disease or injury, or other event in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cognitive disorder, to include memory loss, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1991 to May 1995. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for memory loss due to in-service head injury 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression, due to in-service head injury The Veteran seeks entitlement to service connection for memory loss and acquired psychiatric disorder, which he believes are residuals of an in-service head injury. Alternatively, he asserts that his current memory loss and acquired psychiatric disorder are secondary to his service-connected soft tissue injury with lacerations on scalp. During his March 2016 Board hearing, the Veteran testified that he felt dazed and dizzy and blacked out at the time of the head injury in service. He reported that his headaches began after the injury and his memory loss was gradual. The Veteran also testified that it took him a long time to realize that he was different, and he had problems of irritability and anger management after the head injury in service. The Veteran’s brother has provided lay observations of changes in the Veteran’s behavior and personality following his separation from service The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnosed acquired psychiatric disorders and cognitive disorder, and evidence shows that the Veteran sustained a head injury in August 1992 during service, the preponderance of the evidence weighs against finding that the Veteran’s current acquired psychiatric disorder and cognitive disorder began during service or is otherwise related to an in-service head injury. The Veteran’s service treatment records do not show complaints of memory loss or acquired psychiatric disorder as residual of in-service head injury or at any point during his period of service. When the Veteran was treated for a head laceration in August 1992 after falling on his head during a running exercise, he denied headaches, dizziness, and blurred vision. Examination at that time revealed no loss of consciousness and he was oriented times three. He was treated with six staples on the scalp for a laceration and was placed on limited/light duty for 2 days. At the follow-up treatment for the wound a few days later, he again, denied headaches, dizziness, and blurred vision. Finally, ten days later, when the staples were removed from his head, the Veteran again denied headaches, dizziness and blurred vision. The March 1995 discharge examination noted the 1992 head laceration injury and specifically indicated that there were no residual problems in that regard. On his March 1995 Report of Medical History, the Veteran reported a head injury, but denied a history of frequent or severe headaches, dizziness, loss of memory, and symptoms indicative of an acquired psychiatric disorder. The record shows that the Veteran complained of residual headaches within a year of his separation from service in September 1995 as well as reported a history headache since his in-service head injury in April 1996; however, the first evidence of memory problems and mental health symptoms comes when the Veteran the initiated his claims in 2008. VA treatment records dated in 2002 note a negative depression screen and no complaints of depression or anxiety. The Veteran was first assessed with an acquired psychiatric disorder and memory impairment during a March 2008 VA psychiatric examination, which comes more than a decade after his separation from service. Subsequent VA medical records show the Veteran was diagnosed with various other acquired psychiatric disorders, including anxiety disorder, and mood disorder, as well as diagnosed with cognitive impairment. Based on a review of the record, the Board finds that while the Veteran suffers from acquired psychiatric disorders and cognitive impairment, the most probative evidence of record indicates that the Veteran’s current conditions are unrelated to service, including the documented in-service head injury. The Board acknowledges that as a lay person, the Veteran is competent to report having experienced symptoms of headaches, memory problems, concentration problems, irritability, and anger problems since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds the Veteran’s current reports are not credible as they are inconsistent with his contemporaneous treatment records. See Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Board reiterates that the Veteran’s service treatment records reflect that he consistently denied loss of consciousness, headaches and dizziness at the time of the head injury and at his follow-up treatment, and he specifically denied any history of frequent headaches, loss of memory, and other mental health symptoms just prior to his separation from service. Moreover, the post-service medical evidence of record, including the VA records and the Social Security Administration report suggest that the Veteran’s current memory impairment and acquired psychiatric disorder began several years following discharge from service. The Board finds that the objective findings more contemporaneous in time to the in-service injury carry more probative value than the Veteran’s current recollection of the events in service, particularly given his current cognitive impairment. The record also contains several medical opinions on whether the Veteran has current residuals as a result of his August 1992 head injury. Based on a review of the evidence of record, the Board finds the negative medical opinions to be more probative and heavily weigh against the Veteran’s claims. The Board notes the medical opinions supporting the claims are based the Veteran’s self-reported history, which is inconsistent with the objective findings in the service treatment records, and therein contain limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 46061 (1993) (a valid opinion needs to be based on accurate facts.) In this regard, the February 2008 VA examination and March 2008 VA psychiatric examination reports reflect the Veteran’s self-reported history regarding an in-service head injury, including his reports of that he experienced headaches, memory problems, and anger management issues since the injury. These examination reports show the March 2008 VA examiner found the Veteran was status post head injury with irritability and anger problems, and his “temporally memory loss seems related to head injury.” The February 2008 VA examiner found the Veteran’s headaches were secondary to head injury. The record also contains a March 2010 memorandum from Dr. D Y-S, MD, who wrote that the Veteran had been under her psychiatric care since April 2009 for mood disorder and cognitive disorder. Dr. D Y-S opined that the Veteran’s psychiatric symptoms were, as likely as not, a direct result of a severe head injury he experienced in service. Dr. D Y-S also indicated that the Veteran developed chronic severe headaches after the head injury and the headaches themselves further contributed to his psychiatric conditions. As noted above, the service treatment detail the head injury and subsequent follow-up treatment, noting in every instance, that the Veteran denied loss of consciousness, headaches and dizziness at the time of the injury and at his follow-up treatment. During the Board hearing, the Veteran testified that he blacked out at the time of the injury in service and that he has suffered terrible headaches since the injury. However, this testimony is inconsistent with the service treatment records which only document headaches in the context of a sinus condition or cold; show that the Veteran denied headaches at the time of his discharge from service; and, which specifically note that the head injury did not involve any loss of consciousness. Furthermore, Dr. D.Y-S’s March 2010 opinion which supports the claim is based on the Veteran’s self-reported history of a severe in-service head injury; however, the service treatment records do not suggest that the Veteran suffered a traumatic brain injury at the time of the head injury, as noted by the 2014 and 2018 VA examiners. In other words, Dr. D.Y-S’s analysis that the Veteran’s current symptoms are considered typical for someone who has had a severe head injury is acknowledged; however, the opinion presumes that the Veteran’s in-service head injury resulted in a traumatic brain injury based solely on the Veteran’s self-reported history, and is not consistent with the objective evidence of record. As noted in the March 2014 examination report, when the entire record, including the service treatment records, is carefully considered, the examiner concluded that the Veteran did not suffer a traumatic brain injury at the time of the in-service head laceration based, in large part, on his reported symptoms at the time of the injury and subsequent treatment. The Board has also considered an October 2018 medical statement from Dr. A.R., MD, that was submitted in conjunction with a claim for service connection for headaches, for purpose of demonstrating that the Veteran suffered residuals from his August 1992 head injury. Dr. A.R. stated that he reviewed Veteran’s medical history as well as medical records that reflect the circumstances and events of his military service and noted that the clinical records contained the Veteran’s reports that his headaches started after a head injury in 1992. Dr. AR concluded that based on a review of these records, opine that it is at least as likely as not that the Veteran had headaches as residual of head injury during service. Dr. A.R.’s opinion appears to be based on the Veteran’s self-reported history of headaches since his in-service head injury, which is inconsistent with the service treatment records. Although Dr. A.R. stated that his medical opinion was based on a review of medical records, it relies on those clinical records that only reflect the Veteran’s self-reported history and does not specifically discuss the service treatment records and lack of contemporaneous complaints at the time of head injury and follow-up treatment. Without further statement that reconciles the inconsistencies between the Veteran’s self-reported history and the service treatment records, Dr. A.R.’s medical opinion contains limited probative value in the matter of whether the Veteran suffers current residuals of in-service head injury. In contrast, the Board finds that the medical opinions weighing against the Veteran’s claims to be highly probative, as they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the report of an April 2014 VA examination for the purpose of determining whether the Veteran’s in-service head laceration injury included a traumatic brain injury (TBI), VA examiner concluded that the Veteran’s in-service head injury did not result in a TBI. This medical opinion was based on review of medical records, the Veteran’s self-reported history, and the findings from clinical evaluation. The VA examiner found that the Veteran’s in-service head injury did not meet any of the criteria for mild traumatic brain injury. The examiner also noted that there were no residual symptoms of the scalp laceration at the time of service separation. Accordingly, April 2014 VA examiner opined that it was less likely than not that any current memory loss/TBI injury is related to any head injury in service. In a separate April 2014 VA psychiatric examination report, the VA examiner opined that it was less likely than not that the Veteran’s current acquired psychiatric disorder was the result of the 1992 scalp laceration in service. The examiner reasoned that the Veteran was not diagnosed with a TBI and his depression and anxiety were not formally identified until March 2008, which comes 16 years after the in-service head injury. The examiner acknowledged a March 2010 memorandum from Dr. D.Y.-S. which connected the Veteran’s headaches and psychiatric symptoms to a “severe head injury,” but apart from that reference, the VA examiner could not find any evidence to connect the current symptoms to the in-service head injury. The record also contains August 2018 VA medical opinion reports from a neurologist and a psychiatrist. The VA neurologist examiner provided a lengthy summary of the evidence of record and concluded that the Veteran’s medical record did not document TBI. The VA examiner noted that there was no description of loss of consciousness, altered mental state, or posttraumatic/retrograde amnesia, or other neurologic sequelae commonly associated with TBI in the service treatment records. Rather, the service treatment records reflected that the Veteran sustained a scalp laceration with closure via staples that resolved without residual and there was no treatment or assessment for head injury for years following reported incident. The VA examiner noted that TBI neurologic symptoms/signs should manifest within the weeks or few months after injury and be temporally related to the injury. The VA examiner concluded that the Veteran’s current symptoms are less likely than not incurred in or caused by, the claimed in-service injury. The VA examiner further concluded that since there is no medical evidence of TBI, from a neurologic perspective, the Veteran’s current acquired psychiatric and cognitive disorders are less likely than not caused by in-service head injury. In support of the medical conclusions, the VA examiner specifically considered the Veteran’s September 1995 and April 1996 lay statements of residual headaches since his in-service head injury. However, the VA examiner noted that the Veteran’s reports were inconsistent with the service treatment records that only reflect complaints of headaches associated with other diagnoses that resolved without residuals. The VA examiner found that there was no medical evidence of record to support headaches or cognitive memory issues as temporally related to in-service head laceration injury. Further, the VA examiner found that the previous finding in the 2008 VA examination that the Veteran’s headaches were secondary to head injury was added erroneously or based on Veteran’s reported history alone as these are not evident in the medical record or examination. The VA examiner also found that Dr. Y-S’s March 2010 medical opinion unpersuasive as it was based on the subjective history obtained from the Veteran without review of the medical records. The VA psychiatrist examiner stated that based on a review of the evidence of record, including prior the prior VA examination reports, there was no evidence of no TBI, concussion, alteration or loss of consciousness, no neurological residuals including headaches or dizziness at the time of the August 1992 head laceration injury. Rather, medical records showed that the 1992 head injury, had only resulted in soft tissue injury with laceration on scalp, which was treated and resolved without residuals. In addition, the VA examiner concluded that the Veteran’s major depressive disorder, memory loss, depressive disorder, anxiety disorder, and cognitive disorder are less likely than not incurred in or caused by in-service injury, because there was no TBI injury during service. Taken together, the April 2014 and August 2018 VA examiners establish that the Veteran’s current acquired psychiatric disorder and cognitive impairment/memory loss are less likely than not related to his in-service head injury. The Board finds these VA examiners’ combined opinions are highly probative and weight heavily against the Veteran’s claims. The Board acknowledges that within a year of service, the Veteran reported a history of headaches since his in-service head injury. See September 1995 and April 1996 statements. Moreover, the Veteran believes that he has current residuals of his in-service head injury, to include headaches, cognitive impairment/memory loss, and acquired psychiatric disorder. However, the determination of whether the Veteran has residuals of in-service head injury is a medical question. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the 2014 and 2018 VA examiners’ medical opinions that heavily weigh against the finding that the Veteran suffers any residuals from the August 1992 head injury. While the record shows that the Veteran’s mood and cognitive disorders are severe and chronic, the preponderance of the evidence is against finding any relationship to service. Furthermore, while such symptoms could reasonably be linked to a traumatic brain injury, the preponderance of the evidence is against a finding that the in-service head laceration, or any other event in service, resulted in a traumatic brain injury. Thus, if his symptoms are the result of a traumatic brain injury, there is no indication that any such traumatic brain injury was incurred in service or within the first post-service year. Finally, the Board finds that the preponderance of the competent evidence of record is against a finding that the Veteran’s acquired psychiatric disorder and cognitive disorder are proximately aggravated by his service-connected soft tissue injury with lacerations on scalp. See 38 C.F.R. § 3.310. The August 2018 VA neurologist examiner opined that the Veteran’s acquired psychiatric disorder and cognitive impairment were less likely than not proximately aggravated by his service-connected disability. The VA examiner noted that the Veteran’s soft tissue injury with laceration on scalp was superficial, which was appropriately treated and follow-up clinical examination, including neurological evaluation, was normal. The Veteran’s scalp laceration resolved and there were no other injuries or neurological sequelae. There is no competent evidence to the contrary. See Jandreau and Kahana, supra (Continued on the next page)   For these reasons, the preponderance of the evidence is against the claims and service connection for a cognitive disorder with memory impairment and an acquired psychiatric disorder are not warranted. As the preponderance of the evidence weighs against the claims, the benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3. Karen J. Alibrando Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.