Citation Nr: 0005038	
Decision Date: 02/25/00    Archive Date: 03/07/00

DOCKET NO.  97-30 513	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


THE ISSUE

Entitlement to service connection for organic brain syndrome.


REPRESENTATION

Appellant represented by:	AMVETS


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. R. Gleeson, Associate Counsel


INTRODUCTION

The veteran served on active military duty from September 
1966 to August 1969.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 1997 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Cleveland, Ohio (RO) which denied the veteran's claim for 
service connection for organic brain syndrome.  This case was 
previously remanded by the Board for further adjudication by 
the RO in February 1999.  The case is now properly before the 
Board for further appellate review.


FINDING OF FACT

There is no competent medical evidence of a nexus between the 
veteran's organic brain syndrome and his period of active 
service, nor is there any medical evidence that suggests that 
any organic brain syndrome that may have preexisted service 
was chronically worsened during service.  


CONCLUSION OF LAW

The claim for service connection for organic brain syndrome 
is not well grounded.  38 U.S.C.A. § 5107 (West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A veteran is entitled to service connection for a disability 
resulting from a disease or injury incurred in or aggravated 
in the line of duty while in the active military, naval, or 
air service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  The 
threshold question for the Board is whether the veteran has 
presented a well-grounded claim for service connection.  A 
well-grounded claim is one that is plausible, capable of 
substantiation or meritorious on its own.  See 38 U.S.C.A. 
§ 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); 
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).  While the 
claim need not be conclusive it must be accompanied by 
supporting evidence.  Tirpak v. Derwinski, 2 Vet. App. 609, 
611 (1992).  In the absence of evidence of a well-grounded 
claim there is no duty to assist the claimant in developing 
the facts pertinent to his claim and the claim must fail.  
Epps v. Gober, 126 F.3d 1464, 1467-68 (1997).

To establish that a claim for service connection is well 
grounded the appellant must demonstrate the existence of a 
current disability, the incurrence or aggravation of a 
disease or injury in service, and a nexus between the current 
disability and the in-service injury.  Lay or medical 
evidence, as appropriate, may be used to prove service 
incurrence.  Id. at 1468.  Medical evidence is required to 
provide the existence of a current disability and to fulfill 
the nexus requirement.  Id. at 1467-68.

Alternatively, a veteran may establish a well-grounded claim 
for service connection under the chronicity provision of 38 
C.F.R. § 3.303(b), which is applicable where evidence, 
regardless of its date, shows that a veteran had a chronic 
condition in service or during an applicable presumption 
period, and that that same condition currently exists.  This 
evidence must be medical unless the condition at issue is of 
a type for which case law considers lay observation 
sufficient.  If the chronicity provision is not applicable, a 
claim still may be well grounded pursuant to the same 
provision if the evidence shows that the condition was 
observed during service or any applicable presumption period 
and continuity of symptomatology was demonstrated thereafter, 
and includes competent evidence relating the current 
condition to that symptomatology.  Savage v. Gober, 10 Vet. 
App. 488, 495-98 (1997).

A pre-existing injury or disease will be considered to have 
been aggravated by active military, naval, or air service 
where there is an increase in disability during such service, 
unless there is a specific finding that the increase in 
disability is due to the natural progress of the disease.  
38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).

A veteran is presumed to be in sound condition upon entry 
into service, except for any defects noted at the time of 
examination for entry into service.  38 U.S.C.A. § 1111.  The 
presumption can be rebutted only by clear and unmistakable 
evidence that such a disability existed prior to service.  
Id.; see also Monroe v. Brown, 4 Vet. App. 513, 515 (1993); 
Green v. Derwinski, 1 Vet. App. 320, 322 (1991); 38 C.F.R. 
§ 3.304(b).  In deciding a claim based on aggravation, after 
having determined the presence of a pre-existing condition, 
the Board must assess whether there has been any measurable 
worsening of the disability during service, and, then, 
whether this constitutes an increase in disability.  See 
Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. 
Brown, 5 Vet. App. 155, 163 (1993).  Temporary or 
intermittent flare-ups of the preexisting condition during 
service are not sufficient to be considered aggravation 
unless the underlying condition, as opposed to mere symptoms, 
has worsened.  See Crowe v. Brown, 7 Vet. App. 238, 247-48 
(1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991).

The veteran contends that he suffered a compound fracture to 
the skull in 1958 at the age of eleven.  However, he states 
that although he was hospitalized for the injury for several 
weeks, he was able to function normally after he recovered, 
except that he could not play sports.  He further asserts 
that as a result of rigorous activities in the military, he 
began to experience symptoms including lack of balance, 
double vision, headaches, mood swings and confusion.  
Essentially, the veteran contends that military service 
aggravated his prior head injury, causing a number of 
symptoms labeled organic brain syndrome.

Service medical records include the report of medical 
examination and report of medical history at enlistment in 
July 1966.  A history of a skull fracture occurring in either 
1958 or 1957 was noted.  The service medical records are 
devoid of any complaints of or treatment for lack of balance, 
headaches, vision problems, mood swings or other symptoms of 
that nature.  There are no psychiatric complaints or 
treatment reflected in the service medical records.  At his 
separation examination in July 1969, the veteran's head, 
neurologic state, and psychiatric state were all noted to be 
normal.  The July 1969 report of medical history states that 
the veteran had a history of fractured skull in 1958 with no 
complications and no sequela.  The report shows that the 
veteran had checked off a history of eye trouble, ear, nose 
or throat trouble, running ears, hearing loss and nervous 
trouble.  However he scratched these out and responded in the 
negative to these symptoms.  He also responded he had no 
history of frequent or severe headache, dizziness or fainting 
spells, and loss of memory.  He stated he was in excellent 
health.

The earliest post-service medical records are private records 
from an evaluation for the state Bureau of Vocational 
Rehabilitation, dated from June to September 1987.  The 
veteran was evaluated and referred to a neurologist who 
ordered a cranial CT scan.  Results revealed nonspecific 
atrophy of the cerebellum.  He was diagnosed by the 
neurologist with left cerebellar dysfunction.

At a VA examination in December 1987, the veteran 
demonstrated several neurological symptoms, and he was 
diagnosed with status post head injury with nystagmus and 
ataxia.  A psychiatric evaluation was also performed, and the 
veteran was diagnosed with generalized anxiety with a history 
of depression due to divorce.  The veteran gave a history of 
the onset of his problems as beginning after the 1957 
childhood accident.

At a July 1988 VA examination, several psychological tests 
were administered.  Results of these revealed mild chronic 
organic brain syndrome.  The veteran gave a history of the 
childhood accident with left-sided paralysis since that time.  

The veteran was hospitalized for a variety of physical and 
social problems including cerebellar dysfunction in November 
1988.  He gave a history of his neurological symptoms 
occurring since the age of ten.

At a subsequent examination in December 1989 the veteran 
related a history of onset of emotional difficulties 
beginning with the 1957/58 accident, and he was diagnosed 
with cerebellar ataxia.  However, at a VA examination in 
April 1993, neurological tests were performed with normal 
results.  At that time the veteran reported symptoms 
beginning in 1986 or 1987.

In September 1993, as part of a worker's compensation 
evaluation, a neurologic examination was performed.  There 
were a number of abnormal findings involving inability to 
balance and uncoordinated walking.  At another examination in 
February 1994, at which the veteran gave a history of 
headaches since 1958, the diagnosis of cerebellar ataxia was 
rendered based on several neurological symptoms.  Finally, at 
a VA examination in March 1996, the diagnosis of very mild 
cerebellar ataxia was continued.  At that time a psychiatric 
evaluation revealed evidence of organic affective disorder 
with depression.  The veteran's father was present at the 
interview and stated that at the time of the accident, the 
veteran's parents were told the veteran might have problems 
with concentration and irritability later in life.  At a 
March 1998 psychiatric examination a diagnosis of "no mental 
disorder" was given.

The veteran testified at a personal hearing in December 1997.  
The veteran stated that he had difficulty with training 
school in the military while stationed in Europe.  His 
military schooling was terminated due to academic deficiency.  
He also stated that during his military duty he had trouble 
with balance, hearing and vision and that he had marked these 
down at his separation examination, but was told by the 
sergeant to scratch these off or he would not be able to go 
home.  Subsequent to service he had one job as a forklift 
operator which lasted eleven years.  He was able to perform 
that job successfully because he was not rushed.  Another 
forklift operator job lasted only three months because it 
involved rushing and he was unable to do it without falling 
off or dropping things.  The veteran had not been granted 
Social Security benefits.  He was scheduled for physical 
therapy with a VA medical facility.  He was able to perform 
routine tasks in the home, to drive, and to visit with 
friends.

Based on the medical records in the claims file, the Board 
concludes that the veteran's claim for service connection for 
organic brain syndrome is not well grounded.  The veteran has 
been diagnosed with mild cerebellar ataxia; however, there is 
no medical evidence that this condition was aggravated during 
service.  There are no service medical records documenting 
symptoms associated with organic brain syndrome or cerebellar 
ataxia.  Even if the veteran was discouraged from indicating 
on his separation medical report that he had a history of eye 
trouble, ear, nose or throat trouble, running ears, hearing 
loss and nervous trouble, there is nothing in the record 
linking these symptoms to the veteran's current organic brain 
syndrome.  The earliest evidence of neurological symptoms 
associated with cerebellar ataxia is from private medical 
records dated in 1987, nearly 2 decades after the veteran 
separated from service.  Moreover, on various occasions the 
veteran related the onset of his neurological symptoms to the 
time of his accident in 1957 or 1958, and not to the period 
of service.  The veteran's testimony that his current brain 
disorder is related to his period of service does not fulfill 
the medical nexus requirement of a well-grounded claim, as 
the veteran is not qualified to give a medical opinion.  See 
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) 
(holding that lay persons are not competent to offer medical 
opinions).  

In summary, the Board finds that there is no medical evidence 
or medical opinion of record to support a finding that the 
veteran's organic brain syndrome is linked to any incident of 
service, nor is there any medical evidence or medical opinion 
that suggests that any organic brain syndrome that may have 
preexisted service was chronically worsened during service.  
In the absence of such medical evidence, the claim must be 
denied as not well grounded.


ORDER

Service connection for organic brain syndrome is denied.



		
	R. F. WILLIAMS
	Member, Board of Veterans' Appeals