Citation Nr: 21003703 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-38 612 DATE: January 22, 2021 ORDER Entitlement to service connection for residuals of head injury is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has residuals from a head injury that occurred during active service. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to December 2007. On appeal is an October 2009 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO) that, among other things, denied service connection for residuals of a head injury. The Board of Veterans Appeals (Board) remanded this case in June 2014 and July 2016, before denying the appeal in June 2018. The Veteran appealed the June 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2019, the Veteran’s representative and the VA General Counsel filed a joint motion for partial remand (JMPR) as the parties had agreed that, as it relates to residuals of a head injury, an April 2015 VA examination had relied on inaccurate facts when the examiner determined that “it is less likely as not that the Veteran suffered a head injury during his time spent in the military.” The service treatment records reflect, and the Board acknowledged, that the Veteran did suffer a head injury during his active service. The Court granted the JMPR in May 2019, vacating that part of the Board’s June 2018 decision that denied service connection for residuals of a head injury. In August 2019, the Board again remanded the matter for additional development, to include obtaining an addendum expert opinion. The additional development has been obtained and the matter returned to the Board for additional development. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. 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”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in April 2015 and October 2020, as well as medical opinions obtained in May 2017 and October 2020. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for residuals of head injury. The Veteran seeks service connection for residuals of a head injury which he sustained during his active military service. As noted above, the Board has already conceded that the Veteran suffered a head injury during active 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 has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his claimed residuals of a head injury. The Veteran’s service treatment records (STR) are associated with his claims file. A May 1990 Emergency Care treatment record reflects the Veteran was seen for a superficial laceration to left side of forehead that was sustained when he hit his head on sharp edges overhead while sweeping on the main deck. This record states “no LOC” [no loss of consciousness]. Another May 1990 STR reflects the Veteran complained of a laceration to the right side of his forehead. He stated he hit head on sharp edges while he was sweeping on main deck. No LOC [loss of consciousness]. Upon examination, the examiner noted an approximate 2 cm laceration to forehead above right eyebrow; bleeding controlled under pressure; and “neuro and circ intact.” A later May 1990 service treatment record reflects the Veteran was seen in follow up to sutures to forehead last pm [night]. The Veteran stated no complaints or any sx’s [symptoms] from the head trauma sheet. On examination, the examiner noted a superficial laceration to left side of forehead; the laceration appears to be healing; no signs of discharge or drainage; noted site appears slightly indurated; 3 sutures still intact; alert and oriented x3; and that the diagnosis was a healing, superficial laceration. The Veteran was to return if any problems arise on head trauma sheet. A July 2002 Report of Medical Examination reflects the Veteran had a normal examination with no complaints of any residuals of a head injury. In the companion July 2002 Report of Medical History, the Veteran specifically denied headaches; dizziness; head injury; loss of memory; nervous trouble of any sort; and, periods of unconsciousness. In an August 2007 Report of Medical History, the Veteran specifically denied dizziness; frequent or severe headaches; a head injury, memory loss or amnesia; a period of unconsciousness or concussion; and neurological problems. The Veteran’s post service VA treatment records from the Phoenix VAMC are associated with his claims file. These records are dated from February 2008 (approximately 2 months after the Veteran’s discharge) to September 2020. A February 2015 treatment record reflects the Veteran underwent a physical and as part of that physical, the examiner stated the following about the Veteran’s neurologic system: no headaches, seizures, memory loss, or loss of coordination. A March 2015 primary care note reflects the Veteran complained of headaches and nausea for the past 7 years. The examiner noted the headaches as a symptom of hypertension. In July 2009, the Veteran testified at a Decision Review Officer (DRO) hearing and a transcript of that proceeding is associated with his claims file. The Veteran stated “I’ve been getting more headaches than normal…Existed for a little while but I never paid no attention to it...I started taking Ibuprofen…But as time went on, I was getting more headaches than normal. So I thought maybe it was because of the weather or something like that…Never really thought anything of it until I started getting older.” In April 2015, the Veteran underwent a VA examination for TBI. The examiner stated the Veteran does not have a diagnosis of TBI. As part of the examination, the examiner noted the Veteran had mild impairment of memory, attention, concentration, or executive functions. Judgment was normal. Social interaction was occasionally inappropriate, noting the Veteran frequently gets into arguments. The Veteran was oriented to person, time, place and situation. Motor activity was normal. Visual spatial orientation was normal. There were 3 subjective symptoms: dizziness for the past 2 years, headaches, bilateral tinnitus, insomnia, and hypersensitivity to light. There was one neurobehavioral effect noted that occasionally interferes with workplace interaction, social interaction, or both, but do not preclude them, noting the Veteran complains of mood swings and depression. Communication was normal as the Veteran was able to communicate by spoken or written language and comprehends spoken and written language. Consciousness was normal. The examiner noted the Veteran stated he started getting headaches in approximately January 2007; that he gets 0 to 1 per week; and that he takes Motrin, which helps him. The examiner opined that given there was no comments regarding alterations or loss of consciousness, and the Veteran’s reports of medical history from 2002 and 2007 where he checked no for head injury or a concussion, it is less likely as not that the Veteran suffered a head injury during his time spent in the military. (As mentioned above, this VA examination was later determined to be inadequate as the service treatment records reflect, and the Board acknowledged, that the Veteran did suffer a head injury during his active service.) In May 2017, a VA neurologist provided an expert medical opinion. The examiner opined that it is unlikely (less than 50% probability) that the currently diagnosed migraine headaches are caused or aggravated by the scars. As rationale, the examiner stated given the length of time between the initial injury [May 1990], a sustained period of years where he denied having headaches, and the time when headaches were diagnosed [in year 2015], it is unlikely that the laceration is related to the onset of the headaches. Review of published medical literature indicates there are cases where facial skin injury and scarring can result in headaches. However, in those cases, headaches were reported to develop soon after injury rather than decades later. Examination of this Veteran does not indicate there is tenderness to palpation around the scar or that palpation triggers headaches. In October 2020 (as requested by the August 2019 Board Remand), the same VA neurologist provided an addendum opinion as to whether the Veteran suffered a TBI in conjunction with the laceration. The examiner opined that it is not at least as likely as not (a probability of 50 percent or greater) that the Veteran currently suffers from residuals of an in-service head injury, to include traumatic brain injury (TBI). As rationale, the examiner stated there is no or insufficient evidence that the Veteran had TBI. He denied LOC [loss of consciousness], concussion, evaluation, and treatment. In addition, previous evaluations for TBI and service treatment records do not document TBI during military service. The examiner stated further that after having reviewed available medical evidence, mental health records and other providers, this examiner can state that the injury the Veteran had during service was minor, a contusion, not TBI with residuals, with asymptomatic laceration/scars. The examiner also noted the Veteran has been an over-achiever, working full time as a corrections officer, and going to school. Based on evidence of record, and the employment history, it appears that the Veteran had no pre-existing medical conditions post-service, otherwise, it would not be possible for the Veteran to be gainfully employed [as a correctional officer]. Therefore, there is no ambiguity, the Veteran did not have TBI with residuals at hiring as a corrections officer, otherwise, he would not be hired in this role. In October 2020, the Veteran underwent a new VA examination, specifically for TBI. The examiner noted a May 1990 diagnosis of a traumatic brain injury (TBI). As part of the examination, the examiner noted the Veteran had mild memory loss. Judgment was normal. Social interaction was routinely appropriate. The Veteran was oriented to person, time, place and situation. Motor activity was normal. Visual spatial orientation was normal. There were no subjective symptoms. There were no neurobehavioral effects. Communication was normal as the Veteran was able to communicate by spoken or written language and comprehends spoken and written language. Consciousness was normal. The examiner specifically indicated the Veteran does not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI (such as migraine headaches or Meniere’s disease). In the remarks section, the examiner noted the following VA criteria supports the Veteran’s TBI claim: alteration in mental state at the time of the injury, as the Veteran reported alteration of consciousness. However, in order to obtain objective evidence of memory loss and/ or cognitive deficits secondary to TBI the examiner conducted a MMSE test. The Veteran’s test results were 30/30. The examiner stated there was no need for the Veteran to follow up with his primary care provider regarding any findings in this examination. In light of the above, the Board concludes that service connection is not warranted for residuals of a head injury. Here, none of the Veteran’s treatment providers have provided an opinion that any such disability is related to the head injury noted in military service. There is simply no competent evidence of record to suggest that the Veteran has residuals of a TBI that is in any way related to his time on active duty. Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of evidence linking the Veteran’s claimed residuals of a head injury to his military service. The Veteran’s service treatment records make clear that he sustained a head injury in May 1990, but that there was no follow up noted in these service treatment records after May 1990, suggesting there was no further complications or need for continuing care. The Veteran would continue to serve for 17 more years on active duty, as he separated from active service in December 2007. Because the Veteran’s post-service treatment records, dated from 2008 to 2020, are associated with his file, the Board finds it significant that the Veteran’s first mention of residuals of a head injury (headaches) was not documented in these post service records until year 2015, over 25 years after the in-service incident in May 1990. In this case, the only evidence in favor of the Veteran’s claim is his own statements concerning his belief that his claimed residuals of a head injury are due to service. With regard to the Veteran’s contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report symptoms of head injury, the claimed disability is not the type of condition that is amenable to lay determination regarding its etiology, as specific findings are needed to properly determine etiology. Id.; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As such, the Board finds that, other than the Veteran’s unsupported contentions, there is simply no evidence in the record of any etiological relationship between the Veteran’s claimed residuals of a head injury and his time in service. Thus, the criteria for service connection for residuals of a head injury have not been met. The evidence weighs against the Veteran’s claim. Service connection for hypertension, on a direct basis, must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.