Citation Nr: 21027050 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 10-46 233 DATE: May 4, 2021 ORDER Entitlement to service connection for residuals of a head injury, to include headaches and seizures, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his residuals of a head injury, to include headaches and seizures, are at least as likely as not attributable to the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for residuals of a head injury, to include headaches and seizures, are 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 August 1968 to April 1970. The Board previously remanded the appeal for additional development in April 2014 and July 2016. In a September 2017 decision, the Board denied service connection for residuals of a TBI. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a Joint Motion for Remand (JMR), which vacated the Board's decision and returned the claim to the Board for further consideration. Specifically, the JMR instructed the Board to determine if the Veteran sustained a head injury during combat, and if so, whether the combat presumption under 38 U.S.C. § 1154(b) should be applied. Next, if the combat presumption did not apply, the Board was directed to provide a more adequate reasons and basis for its finding that the Veteran did not have an in-service head injury (as the Board previously determined that a head injury did not occur because it was not reported in the service treatment records). Finally, if the Veteran did have an in-service head injury, the Board was instructed to determine if additional medical evidence and development is required to resolve potentially conflicting medical evidence of record. In an April 2019 decision, the Board denied service connection for residuals of a head injury. Once again, the Veteran appealed this decision to the Court. The Court, in a Memorandum Decision, set aside the April 2019 Board decision and remanded the claim for further adjudication. Specifically, the Court found the Board gave inadequate reasons for denying the Veteran's claim for service connection for headaches. The Court noted that although the Board applied section 1154(b) to Veteran's in-service head injury, the Board failed to apply section 1154(b)'s combat presumption to headaches the Veteran claims he suffered because of that injury. And this failure is prejudicial because if the combat presumption applies to the Veteran's in-service headaches, then he might establish more easily a nexus between his in-service and post-service headaches. The Board notes that the Veteran has claimed service connection for a head injury and asserts that his headaches and seizures are related thereto. However, while the Regional Office (RO) characterized the Veteran's claim as entitlement to service connection for residuals of a traumatic brain injury, the Board has framed the issues broadly to include whether or not the Veteran's headaches and seizures are related to a head injury. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Cf. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). 1. Entitlement to service connection for residuals of a head injury, to include headaches and seizures Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran must show: '(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,' the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Additionally, service connection for certain chronic disorders, including organic diseases of the nervous system, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated "chronic disease," such as an organic disease of the nervous system (or within a presumptive period under § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this matter, the Veteran asserts entitlement to service connection for residuals of a head injury, to include headaches and seizures, which he claims developed following an in-service head injury, where, while loading a helicopter with a ammunition, he hit his head on a turnbuckle rendering him unconscious for 30 minutes. See, e.g., November 2008 Statement in Support of Claim. Further, A July 2013 Addendum Compensation Service Bulletin indicates that headaches should be recognized as an organic disease of the nervous system. Organic disease of the nervous system are chronic diseases. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). With respect to current diagnosis, a January 2017 VA examination documented a continuing diagnosis of cluster headaches. As to in-service incurrence, the Veteran's service treatment records (STRs) show that the Veteran noted frequent headaches on his separation examination in April 1970. Further, the Veteran states that following his in-service head injury he began experiencing frequent, severe, and disorientating headaches. Moreover, the Veteran is competent to report observable symptoms such as headache pain. See Jandreau. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). Also, the Board notes that the April 1968 enlistment examination noted a history of headaches. However, the mere report of history without more is insufficient to establish that he had a headache disability that preexisted service. The Board finds, therefore, that the presumption of soundness attaches and has not been rebutted by the Veteran's report of history. As such, the Veteran is presumed sound upon entry into service. 38 U.S.C. § 1111. The Board further notes that the Veteran served as a cannoneer in Vietnam and is the recipient of the National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal. As such, 38 U.S.C. § 1154(b) is applicable. His statements concerning headache symptomatology are competent, credible, and consistent with the circumstances of his combat service; therefore, in-service headaches are presumed. 38 U.S.C. § 1154(b); Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Accordingly, by applying 38 U.S.C. § 1154(b), the Board finds that the Veteran's statements are sufficient to evidence combat for the purposes of establishing the occurrence of an in-service head injury. The remaining issue is whether the currently diagnosed headaches are related to the in-service injury and disease. Following a July 2004 MRI of the brain, the Veteran's private treatment records note a "small well-defined lesion in the left temporal lobe hippocampus anteriorly could certainly reflect a vascular malformation with old surrounding hemorrhage. This is nonspecific. No other vascular lesions are appreciated finding." Further, a December 2008 MRI of the Veteran's brain reveals an "apparently stable left temporal lobe lesion," however, the history sheet, submitted with the MRI, notes an old Vietnam head injury. In support of his claim, the Veteran submitted a November 2008 Statement in Support of Claim detailing the in-service onset of his headache symptomatology, which he argues has continued to the present day. In support of his contentions, he submitted a December 2008 statement from his sister, Ms. G.L., who reported that the Veteran wrote her a letter following his in-service head injury which described the Veteran's constant severe headaches post injury. The Veteran was afforded a VA examination in January 2017 at which time the examiner indicated that the Veteran's diagnosed cluster headaches are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained, the Veteran's "neurologist told him his headaches are most likely from his [Arteriovenous malformation]. His headaches became severe in 1970 after service." In February 2019, the Veteran submitted a private medical opinion, where, after review of the record, Dr. K.B. determined that the Veteran's cluster headaches are at least as likely as not related to the Veteran's in-service head injury. Further, Dr. K.B. noted that the Veteran has consistently complained of headaches following the in-service head injury, including on his separation examination. Also, Dr. K.B. described the Veteran's current severity of headaches as "mild to moderate," that occur a minimum of once a week and last anywhere between 15 minutes to 3 hours. Additionally, Dr. K.B. noted that the prior VA opinion failed to consider the Veteran's statements regarding the severity of his headaches post head trauma. To this end, the Board finds the Veteran's contentions to be both competent and credible. When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's statements and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). If it does, such lay evidence may be sufficient to establish service connection. Id. As previously discussed above, the Veteran's assertions as to his headache symptoms in service and thereafter are competent and credible as to continuity of symptomatology. Moreover, his assertions are corroborated by lay statements, as well as a private medical opinion. Accordingly, the Board finds that the Veteran's currently diagnosed headaches cannot reasonably be disassociated from his credible description of headache symptomatology during his military service and on a chronic basis thereafter. Given the application of 38 U.S.C. § 1154(b) as explained in Reeves, the Board has weighed the probative evidence of record, including the January 2017 VA medical opinion, the February 2019 private medical opinion, as well as the Veteran's competent and credible assertions concerning continuing headache symptomatology, and finds that the evidence is in equipoise. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of a head injury, to include cluster headaches, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Additionally, the Veteran claims that his current seizure disability is a residual of his in-service head injury. Following active service, the Veteran's medical treatment records indicate history of seizures beginning in the early 1990s. Additionally, the Veteran's treatment records reflect a diagnosis of a seizure disorder. As such, the Board concedes that the Veteran has a present diagnosis of a seizure disorder. Following a July 2004 MRI of the brain, the Veteran's private treatment records note a "small well-defined lesion in the left temporal lobe hippocampus anteriorly could certainly reflect a vascular malformation with old surrounding hemorrhage. This is nonspecific. No other vascular lesions are appreciated finding." Further, a December 2008 MRI of the Veteran's brain reveals an "apparently stable left temporal lobe lesion," and the medical history sheet, submitted with the MRI, notes an old Vietnam head injury. In June 2014, the Veteran's private treating physician provided an opinion stating that a 2012 MRI found a left hippocampal lesion that was suspected to be a cavernous angioma or a low-grade glioma. However, the MRI also showed a lesion in the left temporal lobe that could be caused by the old head trauma. The Veteran's private physician further opined that the Veteran's seizures are caused by one of the above two lesions, but he cannot determine which one without invasive testing. As previously stated, the Veteran was afforded a VA examination in January 2017 at which time the examiner indicated that the Veteran's diagnosed seizure disorder is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained, "the seizure disorder is result of the Arteriovenous malformation (AVM) which is located in the temporal lobe. Medically, it is known that AVM lesions can cause seizures. There is no history of seizures noted in service treatment records. AVM's are not from trauma but are a congenital condition." However, the February 2019 private medical opinion, provided by Dr. K.B., determined that the Veteran's seizure disability is at least as likely as not related to the Veteran's in-service head injury. Further, Dr. K.B. noted the June 2014 medical opinion where it was determined that the Veteran has a left temporal lobe lesion that could have been caused by old trauma, and the exact etiology of the Veteran's seizures cannot be determined without invasive testing. Therefore, Dr. K.B. opined that there is no other major head trauma noted by the Veteran or his medical records, it is at least as likely as note that the Veteran's seizures are caused by his in-service head trauma. The Board finds that the evidence of record is at least in equipoise; as such, the Board will grant entitlement to service connection for residuals of a head injury, to include seizures. In closing, the Veteran is currently diagnosed with cluster headaches and a seizure disorder, he suffered a significant head injury during combat, and the opinions of medical professionals' support that his claimed disorders are the residuals of the head injury. Accordingly, resolving reasonable doubt in his favor, service connection residuals of a head injury, to include headaches and seizures, is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.