Citation Nr: 21002177 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 02-20 396A DATE: January 12, 2021 ORDER Entitlement to service connection for cognitive disorder, claimed as residuals of a head injury, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s cognitive disorder began in service; or manifested to a compensable degree within the one year after discharge from a period of active service; or was noted during a period of active service with continuity of symptomatology; or that disability is otherwise etiologically related to an in-service injury or disease to include a motorcycle accident in service. CONCLUSION OF LAW The criteria for service connection for cognitive disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1978 and from April 1978 to April 1984 in the United States Navy. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2002 rating decision by the Regional Office (RO). A March 2019 Board decision denied the claim. The Veteran appealed the issue to the United States Court of Appeals for Veterans Claims (Court). Thereafter, pursuant to a Joint Motion for Partial Remand, the Court, vacated and remanded the matter to the Board. In June 2020, the Board remanded the matter for additional development. See BVA Decision (June 2020). The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). See also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that substantial, rather than strict, compliance is sufficient). Entitlement to service connection for cognitive disorder, claimed as residuals of a head injury. The Veteran contends that he has cognitive symptoms due to head injury sustain from a motorcycle accident during service. See C&P Exam (August 2020). 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 (e.g. organic diseases of the nervous system) 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). The Board concludes that, while the Veteran has a current diagnosis of cognitive disorder not otherwise specified (NOS), and evidence shows that an in-service motorcycle accident occurred, the preponderance of the evidence weighs against finding that (1) the Veteran’s cognitive disorder began in service; or (2) manifested to a compensable degree within the one year after discharge from a period of active service; or (3) was noted during a period of active service with continuity of symptomatology; or (4) the disability is otherwise etiologically related to an in-service injury or disease to include a motorcycle accident in service. The competent, credible, and probative evidence of record indicates that the Veteran does not have a diagnosis of a traumatic brain injury (TBI) or residuals of any head injury. Further, as discussed below, other than his own statements, there is no competent, credible evidence of an in-service injury to the head from a motorcycle accident or any other event during his active service. Service treatment records (STRs) show that the Veteran was involved in a motorcycle accident in August 1977 while on active duty. See STR – Medical at 37 (March 1978). He presented for treatment where multiple superficial abrasions were noted on the knees, back, elbow, and buttock. There was no report of a head injury, headache, dizziness, or any other neuropsychiatric symptoms on the medical records. Subsequent service treatment records reflect no complaints, findings, or treatment for any injury to the head. Further, STRs reflect no abnormal neurocognitive pathology. The Veteran’s April 1978 reenlistment examination, February 1984 separation examination, and April 1985 enlistment examination reports reflect normal evaluation of the eyes, head, psychiatric, and neurological systems. The Reports of Medical History (ROMH), dated in April 1978, February 1984, and April 1985, completed by the Veteran, reflect that he denied that he ever had or has now a head injury; loss of memory or amnesia; periods of unconsciousness. He described his health as good. He responded to the question “Have you every been a patient in any type of hospital” with a history of appendectomy at age at Fort Knox. Kentucky on each ROMH. Again, the STRs reflect no history of injury or signs/symptoms of head injury or cognitive disorder. Private treatment records dated in 1988 reflect, by history, that the Veteran had been involved in repeated involvements in physical altercations with inmates at King County Adult Detention Center where he was employed. There was no history of in-service head injury; there were no complaints or findings for cognitive dysfunction. A private treatment record, dated in December 1990, reflect that the Veteran worked as a corrections officer and that he had low back pain related to work activities, and that his “depression and anxiety were apparently aggravated by his employment.” See Medical Treatment Record – Non-Government Facility (October 2000). VA received the Veteran’s original disability claim in December 1991, where he reported that he had (1) residuals of a back injury incurred in 1977, (2) post traumatic stress disorder (PTSD) that began in 1979, (3) malaria. He noted symptoms of anger, irritability, rage, anxiety, depression, difficulty trusting others, isolation, loss of interest in pleasurable activities. He also noted that he “put out fire of burning buddy.” See VA Form 21-526 (December 1991). At this time, there was no report or history of any disability arising from a motorcycle accident to include head injury or cognitive disorder. A September 1993 VA hearing transcript reflects that the Veteran testified before a Hearing Officer at the RO regarding his claim for service connection for back disability. At this time, the Veteran’s representative suggested consideration of the Veteran’s back problem as related to possibly to his August 1977 motorcycle accident. The representative argued that the Veteran reported he was thrown from the motorcycle, landing on his back, and los consciousness briefly; that although an ambulance arrived, he got up and went home, only the next day realizing he had “more severe injuries than he thought.” See Hearing Transcript (September 1993). Cognitive disorder is first documented in an April 2002 private neuropsychological report. History of head injury is first documented at this time as well. The April 2002 neuropsychological evaluation report shows that the Veteran was diagnosis with Cognitive Disorder NOS. He was referred by his vocational rehabilitation counsellor due to a history of “a variety of jobs, but difficulty sustained them more recently.” The Veteran reported that he had “a history of Traumatic Brain Injury [TBI] sustained in a motorcycle accident in 1977 after which he was never quite the same. He has had two heart attacks and a back injury as well.” The Veteran reported historical diagnoses for bipolar disorder, PTSD, depression, and anxiety. He complained of “problems with attention, concentration and memory, primarily being inconsistent.” The examiner noted that “there was no documentation of his current difficulties.” The Veteran reported that he left the Navy with the rank of Chief Petty Officer in 1984; then he earned a Bachelor of Science degree in Business Management from City College in 1990. He reported that he worked after the Navy for a correctional facility, but was let go in 1988 due to back disability due to “altercations with inmates.” He noted that he then worked as a substitute teacher and performed other jobs until October 2001. The Veteran gave the examiner “a piece of paper on brain injury that he had highlighted some of his similar problems…” The examiner noted that the Veteran had no problems with the law and had a valid driver’s license. The Axis I diagnoses were cognitive disorder NOS (for frontal lobe processing – verbal inconsistent attention, concentration, mental control and memory); PTST “prior to DX” and bipolar disorder “prior to DX.” On Axis III, the examiner wrote “Hx Traumatic Brain Injury in motorcycle accident, 1977.” A VA speech pathology note dated in April 2002 reflect the Veteran’s report of a history of TBI from a motorcycle accident in service in 1977 along with a history of heart attacks, back injury, and mental disorders (e.g. PTSD, bipolar disorder, depression and anxiety). At this visit, the Veteran reported that “after the accident, he was unconscious for only a brief time. He work-up in the arms of the women he had hit. He did not notice changes in his speech, language, or cognition afterwards and worked as Chief Petty Officer in the Nay until 1984.” Thereafter, in March 2002 correspondence, the Veteran wrote VA that he had head injury and vision problems. See Correspondence (March 2002). A June 2002 VA psychiatry treatment note reflects history head injury and cognitive problems that the Veteran attributes to this injury. An October 2002 neuropsychological examination confirmed a diagnosis of cognitive disorder NOS. See Medical treatment Record – Non-Governmental (September 2003). Testing results revealed normal visual-spatial processing with deficits in memory and executive functioning. Overall, the examiner found that the Veteran presented with largely normal cognitive ability. The examiner concluded that while the Veteran presented with neurocognitive deficits, an etiology could not be determined as the Veteran presented with other risk-factors such as cardiovascular disease. A letter dated in December 2002 from the Veteran’s VA medical providers indicated that he had cognitive disorder NOS. A December 2018 VA TBI examination reflects, by history, the Veteran was riding a motorcycle on a highway when a vehicle turned left in front of him and collided with him; he reported briefly losing consciousness after the accident and that he was seen in the emergency room the next day where he was told there were no severe injuries. The Veteran reported experiencing motion sickness after this accident; but he could not recall any other persistent physical or mental symptoms due to his head injury until 1983 when he began to have behavior changes and memory problems. The Veteran complained of worsening in short-term memory, poor concentration, frequent word-finding difficulties, and difficulty with understanding instructions and directions. The examining neurologist noted some impairments in the Veteran’s neuropsychological performance; however, he found that the Veteran did not meet the diagnostic criteria for a traumatic brain injury or present with any residuals of a TBI. He noted that the Veteran’s neurological examination was normal, and that 2002 neuropsychological testing revealed results within normal limits for most domains. The examiner diagnosed the Veteran with cognitive disorder NOS. The examiner noted that the Veteran’s medical history was not indicative of a head injury; rather, the Veteran’s PTSD, depression, and myocardial infarctions more closely correlate with his complaints regarding cognitive symptoms and occupational difficulties. The examiner noted that the Veteran’s CT scan was normal; and therefore, there is no objective evidence of a TBI of any severity while in service. He added that there is no support for a severe TBI which would potentially be associated with persistent cognitive, memory, or behavioral abnormalities. In reaching this conclusion, the examiner noted that the emergency room treatment note in August 1977 and subsequent service treatment records were silent for any concussion or head trauma or diagnosis of TBI. The December 2018 VA examiner acknowledged that, while a cognitive evaluation by the Washington State Department of Vocational Rehabilitation identified some cognitive deficits attributed to frontal lobe injury, he noted that this is inconsistent with medical history (e.g. the Veteran’s denial of any history of significant head trauma until prompted in the face of neurological evaluation; and history of myocardial infarctions in 1998, noting that cerebral hypoxia due to decreased cardiac function is common and more closely correlate with this Veteran’s memory/cognitive/behavioral complaints and associated occupational difficulties). The examiner stated that: “Taken in its totality, the evidence of record suggests that the veteran's diagnosis of TBI appears to have been arrived at retrospectively based on his cognitive assessment at that time, which erroneously attributed the identified memory and cognitive deficits to a TBI, when this is less than likely the case” based on a comprehensive review of the Veteran’s history and clinical findings. An August 2020 VA TBI examination reflects the Veteran does not now have nor has he every had a TBI or any residuals of TBI. By history, the Veteran reported that he had a motorcycle accident in 1977; he was wearing a helmet; he lost consciousness for less than 5 minutes; an ambulance responded but the Veteran declined and was taken home by a police officer; he presented to the sick bay the next day and reportedly was told he had his “Bell rung.” He was able to return to activity. An associated August 2020 VA medical opinion by the same physician reflects a complete review of the relevant records was conducted and that the history and clinical findings did not support the incurrence of a head injury from the motorcycle accident in August 1977. The physician note as significant that the Veteran’s STRs do not reflect that he had loss of consciousness to include those records roughly contemporaneous with the accident of August 1977 and that he did not endorse head injury on multiple ROMH, including one ROMH completed by him within a year of his accident. Having carefully reviewed the evidence of record, the Board finds that the more persuasive evidence shows that the Veteran did not sustain an head injury in service during his motorcycle accident in August 1977; that he does not have TBI; and that, while he has a diagnosed cognitive disorder, it did not manifest during a period of active service, or within one year after a period of active service, or was noted in service with continuity of symptoms, or is otherwise related to in-service injury or disease. The Board acknowledges that certain medical records dated since 2002 include a history of TBI from a motorcycle accident. However, a medical provider’s recording of medical history does not transform that medical history into competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406 (1995). Therefore, to the extent that, these reports show a diagnosis for TBI based on history of TBI, the Board find that this has no probative value as it is essentially predicated on an inaccurate medical history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Similarly, the Board acknowledges a June 2002 VA psychologist report that that it is possible that the Veteran has some kind of mild brain injury related to “the MVA in 1977 and/or the myocardial infarctions (MIs).” However, the Board finds that it is entirely too speculative and without an adequate degree of certainty to adequately support the conclusion reached. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical statement using the term “could,” “may,” or “possibly,” without supporting clinical data or other rationale, is too speculative to provide the degree of certainty required for medical nexus evidence.). By contrast, the Board finds that the 2018 and 2020 VA examinations and opinions regarding whether the Veteran’s symptoms comport with a finding of TBI are more probative than the Veteran’s retrospective lay reports made in the context of securing VA benefits. It is more probative because they reflect a review of the Veteran’s relevant medical records and history, to include his lay reports of head injury and the more contemporaneous STRs. Further, the 2020 VA opinion reflects that, while the Veteran has cognitive disorder, his Veteran’s medical history was not indicative of a head injury; but rather, the Veteran’s PTSD, depression, and myocardial infarctions more closely correlate with his complaints regarding cognitive symptoms and occupational difficulties. The examiner noted that the Veteran’s CT scan was normal; and therefore, there is no objective evidence of a TBI of any severity while in service. He added that there is no support for a severe TBI which would potentially be associated with persistent cognitive, memory, or behavioral abnormalities. The VA examination findings and opinions highly probative because they were provided by VA medical professionals who possess the necessary education, training, and expertise to address the question of whether the Veteran has/had TBI. Additionally, the examinations/opinions are also shown to have been based on a review of the Veteran’s record and are accompanied by a sufficient explanation for the conclusions reached. Moreover, the examinations/opinions are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In sum, as explained above, the medical evidence does not support that the Veteran had sustained an in-service head injury from his August 1977 motorcycle accident or that his currently diagnosed cognitive disorder and symptoms are related to his August 1977 motorcycle accident. The Board accepts that the Veteran is competent to report his symptoms and their onset. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that he is not competent to attribute any of his current symptoms or diagnoses to an in-service injury or disease given that the onset was not contemporaneous with the alleged injury and because the etiology of cognitive disorder is not always susceptible to lay observation (unlike a broken leg). The etiology of cognitive disorder, including its symptoms, requires medical knowledge of the nervous system, its diseases and causes along with the ability to interpret relevant tests. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, although it is uncontroverted that the Veteran had an August 1977 motorcycle accident in service, the Board finds that the Veteran’s reports of in-service head injury, loss of consciousness at the time of the August 1977 motorcycle accident, and onset of cognitive symptoms in service is not credible. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). The Board finds that his reports of head injury (to include a cracked motorcycle helmet and loss of consciousness) from the motorcycle accident is not credible for the following reasons: (1) An August 1977 STR includes history contemporaneous with the motorcycle accident, showing superficial abrasions of knees, elbow, back and buttock, but there is no mention of injury to the head or loss of consciousness; (2) three separate examinations in service and soon after (1978, 1984, and 1985) reflect normal clinical evaluation of the head, face, neck and scalp, along with the neurologic and psychiatric systems; and the Veteran expressly denied that he ever had or has loss of memory, head injury, or periods of unconsciousness on the 1978, 1984, and 1985 ROMH associated with those examinations; (3) the December 1991 original VA disability application makes no mention of head injury, TBI, or cognitive symptomatology when otherwise making claims for injury incurred in service; (4) the September 1993 VA hearing testimony referenced the in-service motorcycle accident vis-à-vis the Veteran’s back claim, but again no mention of injury to the head or cognitive disorder related thereto; and (5) the lengthy period of time intervening the 1977 motorcycle accident and the first report of any head injury related thereto. Further, the Veteran’s post service reports of head injury in 1977 and onset of cognitive symptoms in 1983 are wholly incongruous with the record showing that he was in sound condition when he entered into a second period of active duty beginning in April 1978 and served as a Chief Petty Officer in the Navy prior to his April 1984 service separation. Credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Caluza v. Brown, 7 Vet. App. 498 (1995) (In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.). Therefore, in light of the above, the Board finds that the Veteran’s medical opinion and statements that he injured his head during his motorcycle accident or had cognitive symptoms in service have no probative value. The Board assigns greater probative value to the Veteran’s STR and post service medical records, which reflect no in-service head injury or cognitive disorder during a period of active service or soon thereafter. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of cognitive impairment. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Lastly, the Board assigns greater probative value to the 2018 and 2020 VA examinations and opinions. These were provided by trained medical professionals after review of the relevant records and lay statements. Nieves-Rodriguez, supra (expert testimony may be received from a suitably qualified expert when the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods and the expert witness has applied the principles and methods reliably to the facts of the case). Additionally, in the alternative, even were the Board to accept that there was an in-service head injury from the August 1977 motorcycle accident, the preponderance of the competent, credible evidence of record still weighs against the claim. This is because the medical evidence, to include STRs, shows that a cognitive disorder did not first manifest in service or within the initial post separation year. This is also because the medical evidence shows that the currently diagnosed cognitive disorder is not consistent with the incurrence of head injury in the absence of clinical findings supportive of the presence of a traumatic brain injury. Again, even were the Board to accept that the Veteran had an in-service head injury (not TBI), he is not competent to link his currently disability to that in-service injury. See Jandreau, supra. Further, the medical evidence, specifically the 2018 and 2020 VA TBI examinations/opinions, taken together, indicate that both the Veteran’s medical history and diagnostic testing (e.g. computerized tomography, neuropsychological assessments) show no TBI to explain the Veteran’s symptoms whereas his medical history for heart attacks was consistent with onset and progression of abnormal cognitive symptoms. On balance, the weight of the evidence is against the claim.   Accordingly, the claim is denied. There is no doubt to resolve. § 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.