Citation Nr: 21069740 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-35 415 DATE: November 19, 2021 ORDER Entitlement to service connection for residuals of a head injury is denied. FINDING OF FACT The preponderance of the probative evidence weighs against finding that the Veteran's headaches and brain changes began during active service or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from May 1971 to September 1972. This claim is before the Board on appeal from an October 2008 Rating Decision in which the Agency of Original Jurisdiction (AOJ) denied the issue herein. In a September 2011 Decision, the Board remanded the issue herein for the AOJ to issue a Statement of the Case (SOC) in the first instance. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In June 2019, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In a November 2019 Decision, the Board remanded the issue herein for the AOJ to obtain pertinent VA examinations and etiological opinions. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). In a June 2021 Decision, the Board remanded the issue herein again for the AOJ to obtain addendum etiological opinions because of inadequacies in the February 2020 VA opinions. Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to service connection for residuals of a head injury Direct service connection may be warranted if the evidence shows: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran generally contends that his current headaches and brain changes are residuals of an in-service (1972) head injury when maintenance stairs fell on the left side of his head and he lost consciousness; he further contends that he has had pain and headaches ever since that injury. See August 2008 VA Form 21-526EZ; May 2009 Notice of Disagreement (NOD); March 2010 Statement; October 2010 Statement; June 2011 Report of General Information; June 2019 Board Hearing transcript; February 2020 VA headache and TBI examinations; August 2020 Correspondence; June 2021 VA TBI examination; August 2021 Correspondence; November 2021 Brief. Service treatment records are silent regarding any head injuries, headaches, and periods of unconsciousness; to the contrary, the Veteran specifically denied ever having those upon entrance to, during, and upon separation from service. See April 1971 entrance examination (the Veteran denied any pre-existing head injuries, headaches, periods of unconsciousness, brain changes, or other pertinent abnormalities); January 1972 examination (the Veteran denied a history of disturbances of consciousness); September 1972 separation examination (the Veteran denied a history of disturbances of consciousness, frequent of severe headaches, head injury, and periods of unconsciousness). Thus, the Veteran's more recent contention that he had a head injury in service (but that a superior prevented him from going to the infirmary at the time) fails to explain his own contradictory statements during service and upon separation (specifically denying a head injury and any pertinent symptoms). In May 1996, the Veteran was afforded VA general medical and diseases/injuries of the brain examinations; however, the Veteran did not report any head injuries and the examiner found no brain tumors, no motor/sensory impairment of cranial nerves, no functional impairment of peripheral and autonomic nervous systems, and no other pertinent abnormalities. The Veteran reported a history of depression and was on Zoloft. A November 1997 record from Long Beach VAMC documented the Veteran's report of a head injury requiring 21 stitches secondary to being hit by a shovel. February 1998 and March 1998 records from Houston VAMC documented that: the Veteran had a head injury in May 1997 when he was hit on the left side posterior to the ear with a shovel requiring 29 stitches; and the Veteran did not believe he lost consciousness or had a skull fracture, but did have anterograde amnesia. In an August 2008 VA Form 21-526, the Veteran requested service connection for a head injury with swelling; he reported that it occurred in June 1972 at Castle AFB. An August 2008 record from Bryan VA OPC documented the Veteran's reports of having headaches one to two times per week. In a March 2010 Statement, the Veteran contended having pain and headaches ever since the reported in-service injury. March and April 2010 records from Houston VAMC document the Veteran's reports of in-service head trauma (when something fell on his head causing swelling and unconsciousness for a brief period) and chronic headaches; however, a concurrent central nervous system review (for anesthesia pre-operation) was normal and had no indications of head/neck injuries, stroke, seizures, or headaches. In an October 2010 Statement, the Veteran reported that he had been trying for years to see a provider for a TBI evaluation, but had been prevented by VA. In a December 2010 Correspondence, the Veteran contended that his bipolar depression was due to his head injury. December 2010 and January 2011 records from Houston VAMC documented the Veteran's request to have his head checked for fractures from military service and his brain checked for TBI; he reported having a brain injury that he believed cracked his skull, that no testing was performed, and that he got headaches sometimes. A February 2011 head CT at Houston VAMC revealed: (1) no neoplasm, subdural hematoma, or hydrocephalus; (2) while matter low attenuation most likely represents chronic small vessel while matter ischemic changes, advanced for the Veteran's age (while low attenuation in the while matter can be seen with trauma, it is unusual for it to be as confluent as in this individual, making microvascular ischemic changes due to hypertension and/or diabetes more likely in the proper clinic setting); (3) mild cerebral atrophy; and (4) healed nasal bone fractures. In a June 2011 Report of General Information, the Veteran contended that the reported in-service injury gave him a concussion (although he did not mention how he knew it was a concussion when there was allegedly no testing performed at that time). A July 2011 record from Houston VAMC documented: the Veteran's reiteration of an in-service head injury; an abnormal MRI; a history of alcohol and substance abuse and histories of hypertension and hyperlipidemia; the provider's assessment that the Veteran was not cognitively impaired and did not have dementia, but had risk factors for cognitive impairment including the history of alcohol dependence and vascular risk factors (hypertension and hyperlipidemia); and, although the white matter changes and mild atrophy on CT imaging could possibly cause mild processing speed/executive function weaknesses, those findings were also not unusual for normal individual variability in test performance. A June 2012 record from Houston VAMC documented that the Veteran worked in aircraft maintenance during service and his post-separation jobs included roofing, construction, and working in offshore oil fields; the record indicated that there was no history of head injury. In the September 2015 VA Form 9, the Veteran reported that he had not been able to get an appointment with a neurologist. A February 2016 record from Wichita VAMC indicated that the Veteran's headaches were likely tension headaches and could also be associated with his sleep apnea; the provider recommended smoking cessation, sleep study, and weight loss. An April 2016 record from Wichita VAMC documented the provider's opinion that the Veteran's headaches were most likely due to small vessel disease and that the headaches improved after beginning use of a CPAP machine for sleep apnea. An April 2016 brain MRI at Robert J. Dole VAMC, ordered due to headaches, documented: the Veteran's reiteration of an in-service head injury on the left side; and a small linear area of CSF signal left frontal region near the body of the lateral ventricle that could be a commonly seen perivascular space or residual of a small old stroke or injury. During the June 2019 Board Hearing, the Veteran: reiterated that he had an in-service head injury; stated that, over the years, he has had lots of headaches since the injury; reported being diagnosed with some kind of brain lesion in recent years; and reported taking depression medicine for his headaches. In the November 2019 Decision, the Board remanded the issue herein for the AOJ to obtain an examination to determine the nature and etiology of any residuals of a head injury, to include a small linear area of CSF on his brain and headaches. The AOJ performed February 2020 VA headache and TBI examinations; however, in the June 2021 Decision, the Board found the February 2020 VA opinions inadequate because the examiner did not discuss the small linear area of CSF on the brain or provide an opinion addressing the nature and etiology of the migraines. As such, the Board will not discuss those inadequate opinions further and will only discuss the Veteran's contentions during those examinations. During the February 2020 VA headache examination, the Veteran reported pain and headaches after the reported 1972 head injury causing unconsciousness. During the February 2020 VA TBI examination, the Veteran reported pain, headaches, and tinnitus after the reported 1972 head injury causing unconsciousness. In an August 2020 Correspondence, the Veteran reported that he still had headaches, had brain lesions on imaging, and wanted another VA examination to further evaluate his symptoms. In the June 2021 Decision, the Board remanded the issue herein again for the AOJ to obtain addendum opinions because the February 2020 VA examiner did not discuss the small linear area of CSF on the brain or provide an opinion addressing the nature and etiology of the migraines. The June 2021 VA TBI examination revealed no findings, signs, or symptoms to support a diagnosis of a TBI; as such, the examiner opined that, if the reported in-service injury occurred, then it produced no residuals. The examiner explained that the small linear area of CSF on the brain cannot be related to service, including the reported in-service head injury, because the Veteran had a history of heavy drug and alcohol abuse and the brain changes were consistent with alcoholism and possible vascular issues as indicated by the records review. The examiner added that the evidence did not indicate the migraines were related to service, including the reported in-service head injury. Ultimately, the examiner indicated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, explaining again that: (a) there was no evidence of a TBI upon testing, so there cannot be residuals of a TBI; (b) his brain changes are consistent with alcoholism and possible vascular issues; and (c) the evidence did not indicate the migraines were related to service, including the reported in-service head injury. In an August 2021 Correspondence, the Veteran reported that he has endured years of suffering since his 1972 head injury. In a November 2021 Brief, the Veteran's representative: (a) cited a VA article and argued that details of the original injury can be elusive, TBI can be difficult to diagnose, and the brevity of the initial alteration of consciousness may cause the initial injury to go unnoticed such that someone may present sometime after the original injury when details are unclear; and (b) contended that the Veteran should be afforded a new VA examination with opinion because the AOJ continues to deny benefits based on the Veteran's past drug and alcohol abuse and because the examiner did not give enough probative weight to the Veteran's reported in-service injury, placing more weight instead on the lack of in-service treatment. Notably, however, the representative quoted the February 2020 VA opinion, rather than the June 2021 VA opinion, when contending inadequacies. Accordingly, the Board finds that the preponderance of the probative evidence weighs against finding that the Veteran's headaches and brain changes began during active service or are otherwise related to an in-service injury or disease. As discussed above, the Veteran's statements regarding the reported in-service injury are not probative because he has contradicted himself throughout the record (reporting to service providers and the May 1996 VA examiner that he had never had any type of head injury, period of unconsciousness, headaches, or other pertinent symptoms, but then inconsistently reporting to providers since 2008 [in connection with this claim] that he had an in-service injury without even mentioning to them that he sought treatment for a May 1997 injury to the left side of the head when hit with a shovel). Although the Board acknowledges the representative's argument that head injury details can often be elusive, the Board highlights, as discussed above, that the Veteran specifically denied in-service head injury and headaches until he filed the claim and he also failed to mention his May 1997 head injury (unrelated to service) to several pertinent providers and to the Board, which suggests a potential intervening cause. Further, as discussed above, the VA examiners have subjected the Veteran to neurocognitive testing to assess whether any deficits could be classified as TBI residuals; however, as discussed above, that testing did not reveal findings, signs, or symptoms to support a diagnosis of a TBI, and, as such, no residuals of a TBI. Moreover, the Board highlights that providers have attributed the Veteran's headaches and brain changes to causes unrelated to service (as discussed above, the tension headaches have been associated with small vessel disease and sleep apnea [with CPAP use improving symptoms] and the brain changes have been identified as consistent with the Veteran's alcoholism and possible vascular issues [hypertension and hyperlipidemia]). See January 2011 Codesheet (the Veteran has no service-connected conditions to date). In coming to those conclusions, the June 2021 VA examiner considered the totality of the pertinent evidence and provided sufficient rationale to support the opinion; thus, the Board finds it probative. Further, the evidence does not indicate that the Veteran has the medical background necessary to competently render an etiological opinion for these conditions, apart from competently reporting lay-observable symptoms and functional loss. Lastly, the Veteran has not submitted any favorable etiological opinions from private providers or any other probative evidence linking his headaches and brain changes to his reported in-service injury; although the Board acknowledges the Veteran's testimony regarding ongoing symptoms, this testimony cannot establish etiology based on chronicity and continuity of symptomology because the continuity of symptomatology language in 38 C.F.R. § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a), none of which the Veteran has been diagnosed with to date. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, service connection is not warranted and the Board must deny the claim. In denying this claim, the Board would like to specifically address the representative's November 2021 contention that VA continues to deny benefits based on the Veteran's past drug and alcohol abuse. To the contrary, the Board applauds the Veteran's continued efforts to overcome his addictions and wishes him continued success with that journey. Although it surely is a contentious subject to address, the Board has been required to discuss the Veteran's alcoholism simply because of the June 2021 VA examiner's rationale that the Veteran's brain changes have been identified as consistent with the Veteran's alcoholism and possible vascular issues; thus, it is relevant to the claim in that regard. However, the Board has not found that the Veteran's past drug or alcohol use affects the claim in any other way, including credibility, and the Board is certainly not withholding benefits due to his past addictions; rather, as discussed above, the Board has found lack of credibility regarding the in-service injury due to inconsistent reporting throughout the record and, ultimately, there is simply no probative evidence supporting the claim. Thus, the Board must deny the claim. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.