Citation Nr: 0000019	
Decision Date: 01/03/00    Archive Date: 12/28/01

DOCKET NO.  98-11 312	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
Puerto Rico


THE ISSUE

Entitlement to service connection for organic brain syndrome 
as secondary to service-connected posttraumatic headaches.  


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and Father


ATTORNEY FOR THE BOARD

C. Eckart, Associate Counsel


INTRODUCTION

The veteran served on active duty for training from May 21, 
1986 to July 18, 1986 and from February 6, 1987 to May 29, 
1987. 

This case comes before the Board of Veterans' Appeals (Board) 
from a rating decision of February 1998 from the San Juan, 
Puerto Rico Regional Office (RO) of the Department of 
Veterans Affairs (VA), which denied entitlement to service 
connection for organic brain syndrome as secondary to 
service-connected posttraumatic headaches.  

It is noted that the appellant and his father appeared at a 
hearing before a hearing officer at the RO on May 21, 1998, 
at which time they testified with respect to the claims now 
at issue before the Board.  A transcript of that hearing has 
been associated with the record on appeal.


FINDINGS OF FACT

1.  The veteran is shown to have been treated and placed 
under observation for a head injury with headache complaints 
in July 1986 and was placed on permanent disability for 
posttraumatic headaches in March 1990.

2.  Private treatment records from December 1997, February 
1998, March 1998 and March 1999 give the medical opinion that 
the veteran has a mental disorder of organic origin, which is 
related to his inservice head injury.

3.  The veteran is shown to have evidence of a current 
psychiatric disability, diagnosed most recently as dysthymia 
on the April 1999 VA examination.

4.  The veteran's claim for service connection for organic 
brain syndrome as secondary to service-connected 
posttraumatic headaches is plausible, but the RO has not 
obtain sufficient evidence for correct disposition of the 
claim.  
CONCLUSION OF LAW

The claim of entitlement to service connection for organic 
brain syndrome as secondary to service-connected 
posttraumatic headaches is well grounded.  38 U.S.C.A. 
§ 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 
(1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) 
(table).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Background-Pertinent Legal Principles of Well Groundedness

In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. 
denied, 524 U.S. 940 (1998), the United States Court of 
Appeals for the Federal Circuit (Federal Circuit) held that, 
under 38 U.S.C. § 5107(a), the VA has a duty to assist only 
those claimants who have established well grounded (i.e., 
plausible) claims.  More recently, the United States Court of 
Appeals for Veterans Claims (Court) issued a decision holding 
that VA cannot assist a claimant in developing a claim which 
is not well grounded.  Morton v. West, 12 Vet. App. 477 (July 
14, 1999), req. for en banc consideration by a judge denied, 
No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam).  

Once a claimant has submitted evidence sufficient to justify 
a belief by a fair and impartial individual that a claim is 
well-grounded, the claimant's initial burden has been met, 
and VA is obligated under 38 U.S.C. § 5107(a) to assist the 
claimant in developing the facts pertinent to the claim.  
Accordingly, the threshold question that must be resolved in 
this appeal is whether the appellant has presented evidence 
that the claim is well grounded; that is, that the claim is 
plausible.  

In order for a claim to be well grounded, there must be (1) a 
medical diagnosis of a current disability; (2) medical, or in 
certain circumstances, lay evidence of in-service occurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between an in-service injury or disease 
and the current disability.  Epps, 126 F.3d at 1468; Caluza 
v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 
(Fed. Cir. 1996) (per curiam) (table).  Where the 
determinative issue involves medical causation or etiology, 
or a medical diagnosis, competent medical evidence to the 
effect that the claim is "plausible" or "possible" is 
required.  Epps, 126 F.3d at 1468.  Further, in determining 
whether a claim is well-grounded, the supporting evidence is 
presumed to be true and is not subject to weighing.  King v. 
Brown, 5 Vet.App. 19, 21 (1993).  

In regard to establishing a well-grounded claim, the second 
and third Epps and Caluza elements (incurrence and nexus 
evidence) can also be satisfied under 38 C.F.R. § 3.303(b) 
(1999) by (1) evidence that a condition was "noted" during 
service or during an applicable presumption period; (2) 
evidence showing postservice continuity of symptomatology; 
and (3) medical or, in certain circumstances, lay evidence of 
a nexus between the present disability and the postservice 
symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-97 
(1997).  

Symptoms, not treatment, are the essence of any evidence of 
continuity of symptomatology.  Savage, 10 Vet. App. at 496.  
Moreover, a condition "noted during service" does not 
require any type of special or written documentation, such as 
being recorded in an examination report, either 
contemporaneous to service or otherwise, for purposes of 
showing that the condition was observed during service or 
during the presumption period.  Id. at 496-97.  However, 
medical evidence is required to demonstrate a relationship 
between the present disability and the demonstrated 
continuity of symptomatology unless such a relationship is 
one as to which a lay person's observation is competent.  Id. 
at 497.  

Service connection may be established for disability 
resulting from personal injury incurred or aggravated while 
on active military, naval, or air service.  Active military, 
naval, or air service includes active duty, any period of 
active duty for training during which the veteran was 
disabled or died from a disease or injury, or inactive duty 
training during which the veteran was disabled or died from 
an injury incurred or aggravated in the line of duty.  38 
U.S.C.A. §§ 101(24), 1110, 1131 (West 1991).

In the case of a disease only, service connection also may be 
established under section 3.303(b) by (1) evidence of the 
existence of a chronic disease in service or of a disease, 
eligible for presumptive service connection pursuant to 
statute or regulation, during the applicable presumption 
period; and (2) present disability from it.  Savage, 10 Vet. 
App. at 495.  Either evidence contemporaneous with service or 
the presumption period or evidence that is post service or 
post presumption period may suffice.  Id.  

Factual Background

Service medical records reveal that on July 4, 1986 during 
his period of active duty for training, the veteran was 
placed under observation for a head injury.  The exact time, 
date, place and circumstances surrounding the head injury 
were reported as unknown.  He complained of headaches on July 
6, 1986, was taken to the hospital, and released on July 7, 
1986.  An August 1986 line of duty determination concluded 
that the head injury was in the line of duty.  In October 
1986, on follow-up, he was diagnosed with post concussive 
syndrome, atypical (psychological factors affecting physical 
illness.)  He was found to have been injured during basic 
training.  In a March 1990 Medical Board proceeding, the 
veteran was assessed with post traumatic headaches, occurring 
3 to 4 times a week, with loss of consciousness 2 to 3 times 
a week, with histrionic personality features and no 
pathological neurological findings, rated as definite.  The 
Medical Board found the veteran to be unfit to perform his 
duties of his military occupational specialty and grade 
because of a disability associated with migraine headaches.

On VA psychiatric evaluation in June 1990, the diagnoses were 
psychological factors affecting a physical condition and a 
histrionic personality disorder.  The evaluation report 
included a history of the appellant having undergone multiple 
hospitalizations and evaluations for complaints of recurrent 
headaches, and also noted a diagnosis at one point of 
adjustment disorder.  This examiner reached the conclusion 
however, that the veteran's condition was definitely 
secondary to his personality make up.

By rating decision of March 1990, the RO granted service 
connection for 
posttraumatic headaches and denied service connection for a 
claimed nervous condition, which was determined to be a 
personality disorder.  The matter was appealed to the Board, 
which upheld the denial of service connection for an acquired 
psychiatric disorder in a July 1996 decision, following 
additional development of the matter.  

VA treatment records from 1990 through 1991 reveal ongoing 
treatment for the veteran's headaches and complaints of 
nervousness, although no opinion was made regarding whether 
there was a relationship between the two complaints.  In 
August 1991, a diagnosis to rule out borderline personality 
disorder was made.  

The report from a VA psychiatric examination conducted in 
April 1995 indicates a diagnosis of histrionic personality 
disorder.  This examination determined that there was no 
specific disorder for an Axis I determination, and that the 
complaints, history and exploration were very vague and that 
basically, a personality structure seemed to predominate.  

Translations of private treatment records that were written 
in Spanish included large volumes of treatment for 
psychiatric, seizure and headache complaints from 1987 
through 1999.  Also translated from Spanish to English were 
school records from 1979 through 1982.  Included in these 
treatment records are several treatment records which are of 
particular significance.  These include the treatment record 
from February 1998, which notes as follows:  "the pt gets 
convulsions and his bizarre episodes when they appear are of 
organic mental origin.  Prognosis, poor, because of the 
mental organic."  An April 1998 treatment record diagnosed 
him as having major depression, secondary to the cerebral 
organic.  Finally, there is a report from March 1999, which 
noted a history of the veteran having suffered a cranial 
trauma which caused him to have a cerebral concussion in June 
1986, with hospitalization due to headaches in July 1986 from 
which he continues to suffer.  This treatment record noted 
that since the appellant had a cerebral trauma in active 
service, he has been suffering continuously from frequent and 
severe headaches, during which, he is in the habit of beating 
his head against the wall, and with the evidence of this 
shown as scars on his forehead plus he becomes destructive 
and aggressive.  The diagnostic impression from March 1999 
was of organic cerebral syndrome, major depression with 
psychotic aspects and posttraumatic headaches.  

In addition to the translated medical evidence, there is of 
record, a private treatment record from December 1997, that 
gives the opinion that the appellant fell some 60 feet during 
basic training, and sustained a trauma to the head with loss 
of consciousness followed by amnesia that is still present.  
This treatment record noted the history of headaches and 
convulsive seizures.  The physician's opinion was that the 
patient's mental condition is organic in nature and is 
secondary to the trauma to the head suffered in basic 
training in 1986.  

Also of record is testimony from the RO hearing held in May 
1998, wherein the appellant testified that he injured his 
head during basic training when he fell from a 65 foot tower 
in a "confidence course."  He testified that since the 
accident, he has suffered headaches, black outs and 
psychiatric problems.  

The report from a VA examination conducted in April 1999, 
included an examination of the veteran, with the claims 
folder available.  The history given included that of the 
head trauma in 1986 with post-traumatic migratoid headaches 
and a recent history that included normal computerized 
tomography (CT) findings in December 1987 and normal magnetic 
resonance image (MRI) findings from August 1998, plus the 
history of diagnosed histrionic personality traits in the 
1995 VA examination.  The examination does not appear to 
include the review of the history from the recently 
translated treatment record from 1997 through 1999, some of 
which include opinions that the veteran is suffering from a 
psychiatric disorder of organic origin.  The diagnoses were 
Axis I dysthymia, and Axis II mixed personality disorder, 
with borderline, dependent and histrionic features.  The 
opinion given, based on his history and records reviewed in 
the claims folder, was that the veteran does not meet the 
diagnostic criteria for organic brain syndrome.  The opinion 
further given was that the veteran has only suffered 
headaches after the incident during service, and only 
recently presented with depressive symptoms in reaction to 
his physical disabilities present since 1991.  His most 
disabling condition was viewed to be his characterological 
disorder.  


Analysis

Upon review of the evidence, the Board finds that the claim 
for service connection for organic brain syndrome is well-
grounded.  The service medical records show that in July 
1986, the veteran was under medical observation for a head 
injury, with complaints of headaches.  He was assessed with 
post concussive syndrome, atypical (psychological features 
affecting physical illness) in October 1986 and was placed on 
permanent disability for post-traumatic migranoid headaches 
in March 1990.  Thus there is evidence of an inservice head 
injury.  The veteran is also shown to have long standing 
treatment for psychiatric complaints, most recently diagnosed 
as dysthymia in April 1999.  Finally, there is of record a 
medical opinion from December 1997, which determined that the 
veteran is suffering a mental condition, which is organic in 
nature and secondary to the trauma to the head suffered in 
basic training in 1986.  This medical opinion, accepted as 
true for well groundedness purposes, shows a nexus between 
the veteran's psychiatric pathology and his head injury 
during active duty for training in 1986.  Additionally, the 
translated medical records from February 1998, April 1998 and 
March 1998 all suggest that the veteran has a psychiatric 
disorder, which was diagnosed in March 1998 as major 
depression with psychotic features, and these records also 
suggest that there is an organic basis for his mental 
condition.  Consequently, all three criteria of Caluza, supra 
have been met and this claim is well-grounded.  


ORDER

The claim of entitlement to service connection for organic 
brain syndrome as secondary to service-connected 
posttraumatic headaches is well grounded.  To this extent 
only, the appeal is granted.



REMAND

Because the claim of entitlement to service connection for 
organic brain syndrome is well grounded, VA has a duty to 
assist the appellant in developing facts pertinent to the 
claim.  38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 
(1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990).

Upon review of the evidence, the Board finds that further 
development in this case is warranted.  Currently the record 
contains conflicting evidence regarding the nature and cause 
of his claimed mental disability.  That the veteran sustained 
some form of head injury during active service is undisputed.  
However, there is some dispute as to whether the veteran has 
a psychiatric disorder either as a direct result from the 
head injury, or as secondary to pain from his service-
connected headache disorder or due to personality disorder.  
The Board notes that some of the private medical records from 
1997 through 1999, as discussed above, give the opinion that 
the veteran does have an organic mental disorder secondary to 
the inservice head injury.  In contrast, the VA examinations 
from June 1990, April 1995 and April 1999, have determined 
the veteran's claimed mental problems to be due to a 
personality disorder, which is a congenital disability not 
subject to service connection.  What is problematic regarding 
the opinions rendered in the most recent VA examination of 
April 1999, is that it did not appear to include a review of 
these private treatment records which suggest that the 
veteran does have an organic brain disorder.  The April 1999 
VA examination also appears to raise another question 
regarding the nature and etiology of the appellant's claimed 
disorder, in that it notes that the veteran's depressive 
symptoms were presented "in reaction to his physical 
disabilities present since 1991."  This raises the 
possibility that, even if there is no psychiatric disorder as 
a direct result of the inservice head injury, there may in 
fact be a psychiatric disorder secondary to the physical pain 
caused by the service-connected headaches.  Finally, the 
Board finds that given the differential diagnoses for his 
claimed disorder throughout the record, clarification is 
needed.  

In view of the foregoing, further appellate consideration 
will be deferred, and the case is REMANDED to the RO for the 
following:

1.  The RO should contact the veteran to 
determine the names, addresses, and dates 
of treatments of any and all medical care 
providers who treated the veteran for any 
psychiatric problems, not already 
associated with the claims file.  All 
pieces of correspondence, as well as any 
medical or treatment records obtained, 
should be made a part of the claims 
folder.  If private treatment is reported 
and those records are not obtained, the 
veteran and his representative should be 
provided with information concerning the 
negative results and afforded an 
opportunity to obtain the records.  
38 C.F.R. § 3.159 (1999).

2.  Thereafter, the veteran should be 
scheduled for a VA examination(s) to 
ascertain the nature and severity of his 
claimed organic brain syndrome(s).  A 
panel of 2 psychiatrists should conduct 
this examination.  A neurologist familiar 
with head injuries should also examine 
him.  The report of the examination 
should include a detailed account of all 
pathology and manifestations associated 
with any residuals of a head injury 
disability found to be present.   All 
indicated tests, including psychological, 
MRI and neurological evaluations, should 
be accomplished and all clinical findings 
and subjective complaints should be 
reported in detail.  The claims folder 
should be provided to the examiner prior 
to the examination.  In conducting the 
examination, the examiner(s) should 
express an opinion as to the extent of 
his physical and mental complaints as 
they relate to the inservice head injury.  
To the extent that a period of 
hospitalization for observation and 
evaluation is indicated, one should be 
scheduled to determine the nature and 
severity of his claimed organic brain 
syndrome.  The examiner must be requested 
to review the available medical records, 
as well as the history of the veteran's 
service connected headaches, and express 
opinions on the following questions: (1) 
the exact current diagnosis of any 
disability related to the inservice head 
injury, and of any psychological or 
psychiatric pathology and whether any of 
these conditions are acquired or 
congenital; (2) the degree of probability 
that any psychiatric or psychological 
disorder is the proximate result of a 
head trauma in service; (3) whether there 
is a reasonable probability that any 
current psychiatric disorder could be 
related to his inservice headaches to 
include as being secondary to pain and 
physical disability caused by his 
service-connected posttraumatic headache 
syndrome; (4) whether based on the 
medical findings noted in service there 
is a reasonable probability that any 
congenital disorder was permanently 
aggravated or became worse during his 
service.  The claims folder as well as a 
copy of this remand must be made 
available to and reviewed by the 
examiners prior to the examination.  The 
examiners must provide full rationale for 
all opinions and conclusions reached.  

3.  Subsequently, the RO should review 
the claims folder and ensure that all of 
the foregoing development actions have 
been conducted and completed in full.  If 
any development is incomplete, 
appropriate corrective action is to be 
implemented.  Specific attention is 
directed to the examination report.  If 
the report does not include fully 
detailed descriptions of pathology or 
adequate responses to the specific 
opinions requested, the report must be 
returned to the examiner for corrective 
action.  Pursuant to 38 C.F.R. § 4.2 
(1996) "if the [examination] report does 
not contain sufficient detail it is 
incumbent upon the rating board to return 
the report as inadequate for evaluation 
purposes."  Green v. Derwinski, 1. Vet. 
App. 121, 124 (1991); Abernathy v. 
Principi, 3 Vet. App. 461, 464 (1992); 
and Ardison v. Brown, 6 Vet. App. 405, 
407 (1994).  

4.  After the development requested above 
has been completed, the RO should 
readjudicate the veteran's claim.  If the 
issue remains denied, the veteran and his 
representative should be provided a 
supplemental statement of the case in 
accordance with 38 U.S.C.A. 
§  7105 (West 1991), which includes a 
summary of additional evidence submitted, 
any additional applicable laws and 
regulations, and reasons and bases for 
the decision reached.  They should be 
afforded the appropriate period of time 
within which to respond thereto.

Thereafter, the case should be returned to the Board for 
further appellate consideration, if otherwise in order.  The 
Board intimates no opinion, either legal or factual, as to 
the ultimate disposition of this case.  The veteran need take 
no action unless otherwise notified.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, 
directs the ROs to provide expeditious handling of all cases 
that have been remanded by the Board and the Court.  See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.


		
	A. BRYANT 
	Member, Board of Veterans' Appeals