Citation Nr: 0007949 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 94-46 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a head injury with resultant cerebral white matter disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from July 1961 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 1997, the Board remanded this issue for further development. The RO, after readjudicating the claim based on the requested development continued its denial of the veteran's service connection claim. The case has returned to the Board for appellate review. FINDING OF FACT The preponderance of the competent evidence of record demonstrates that residuals of a head injury with resultant cerebral white matter disease are not related to the veteran's active duty service. CONCLUSION OF LAW Residuals of a head injury with resultant cerebral white matter disease were not incurred or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1131, 1132, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Factual background In March 1955, Charles Finnigan, M.D., of the Department of Neurology and Psychiatry at the University of Virginia Hospital examined the veteran. At the time, the veteran was apparently 13 years old. Dr. Finnigan noted that the veteran was rather aggressive, but a very pleasant, cooperative young man, who admitted that he was a "piddler" with respect to his schoolwork. The veteran had apparently developed the idea that his teacher at school did not like him. Since he transferred earlier that year to a different school system, he had some difficulty adjusting. Dr. Finnigan suggested that, if possible, the veteran should be transferred to another school, however, due to the lateness of the year, this was not practical. Nevertheless, Dr. Finnigan added that if the difficulty, whatever it may have been, still continued, it would be worthwhile to allow him to leave school before the completion of the term. As will be noted below, the veteran revealed in subsequent statements that he quit school in the 10th grade. The veteran's service medical records are negative for brain trauma. The May 1961 original enlistment examination report is negative for brain disease. A July 1961 active duty examination report is also negative for brain disease. An August 1961 Aptitude Board report indicates that the veteran was temperamentally unsuitable for service. Testing revealed a GCT score of 43. Initial psychiatric screening revealed an apparent emotional instability. As a result, the veteran was placed on trial duty. At the time of his assignment he had been referred for examination from sick call in a medical dispensary because of nervousness. The veteran's company commander had reported that he performed poorly in his duties and training. The commander described the recruit as a person who was unable to carry out instructions and who responded poorly and with resentment to orders. He was also described as objectionably dirty and untidy, unreliable, disobedient, over-boisterous, and he frequently requested to go to sick call. The commander indicated that, although he tried to help, the veteran would not clean up. Also, according to the commander the veteran said that he wanted out of the military. The Aptitude Board examiner reported that, at the time the veteran was assigned to the Recruit Evaluation Unit, he had not taken any weekly tests; he had accumulated no demerits or "hard card" entries; and he had no official disciplinary action. The examiner observed that the veteran was an 18- year old recruit of obviously limited abilities. He had responded very poorly to training and had become the butt of much hostility from his shipmates. The veteran apparently attempted to hide his inadequacies through distortion of the truth, and he had evidently woven a tangled web. He lacked the necessary maturity, motivation, general adequacy, self- sufficiency, stability and initiative to function effectively in the service. The examiner recommended that the veteran be discharged as temperamentally unsuitable for further training. The examiner also concluded that the veteran's condition existed prior to entry into the service and it had not been aggravated as a result of service. The August 1961 discharge for unsuitability examination report is negative for neurologic abnormality but was positive for psychiatric abnormality. With respect to the psychiatric abnormality, the examination report refers to the Aptitude Board examination report outlined above. In March 1967, while the veteran was at Western State Hospital, it was noted that he had suffered a measles attack as a child with a prolonged period of elevated temperatures. It was suggested that this episode could have caused some brain damage. The post service private and VA medical records are negative for a diagnosis of cerebral white matter disease until 1991. Nevertheless, these post-service records show that he was frequently diagnosed with a personality disorder by various psychiatric facilities. These records reveal by history that the veteran before and after service had difficulty holding a steady job and relating to people. In addition there were several statements from former employers who essentially indicated that they had to fire the veteran because he would not perform his duties properly. His father authored several statements during this time. For example, in February 1985, his father reported that the veteran developed a severe case of the measles when he was seven years old, and after he recovered, his personality changed. His father reported that the veteran had trouble with teachers and developing friendships at school. When he was 19, the veteran ran away and got married. When they returned, the marriage did not last. His father recalled that the veteran had a history of being fired from jobs. His father essentially indicated that the veteran's behavior did not improve since that time. Later, in a May 1988 letter written to the RO, his father indicated that the veteran's personality changed after he was discharged from the military. When he returned home the veteran was nervous and he complained of headaches. He also related the veteran's claim that he was the victim of an inservice beating. After that, he could never hold a job. His father indicated that he was unable to obtain medical records from this time because the doctors had either moved or passed away. His father referred to a recent doctor, however, who opined that the veteran incurred permanent brain damage due to a blow to the head while he was in the service. In May 1991, the Rockingham Memorial Hospital administered a magnetic resonance imaging (MRI) scan of the veteran's brain. The examiner diagnosed nonspecific focal white matter lesions, and prominent aqueductal flow void with fairly normal sized ventricles. The examiner elaborated that a prominent aqueductal flow void had been described in patients with normal pressure hydrocephalus who respond to ventricular shunting. The significance, however, of this finding in a patient with normal sized ventricles was unknown. In June 1991, Glenn Deputy, M.D., reviewed an electroencephalogram (EEG) and an MRI scan of the veteran's brain, and found that the EEG showed diffuse generalized slow activity, which could be seen in cases of either acute or chronic encephalopathy. The MRI scan showed multiple non- specific focal lesions in the cerebral white matter. Dr. Deputy felt that the veteran had a disease of the cerebral white matter, which was uncorrectable. Whether this was due to past head trauma or not, the doctor noted that he could not say with 100 percent certainty, although it was a possibility. In July 1993, Dr. Deputy elaborated on his previous opinion. He noted that it was certainly possible that the white matter disease that was documented in 1991 could have originated 30 or 40 years ago, however, the MRI scan gave no hint of the duration of the white matter disease. By history, Dr. Deputy related that the veteran had had memory problems since the early 1960's. The doctor believed that, within a reasonable degree of medical certainty, the white matter disease was present at that time. In July 1993, the veteran appeared before a hearing officer at the RO, and in January 1997, the veteran appeared before the undersigned. To summarize, he essentially provided the same testimony at both hearings. He testified that while in basic training other trainees wrapped him up in a blanket and beat him with hard objects, like a cake of soap, around the head and chest. He contended that as a result he sustained permanent head injuries. He recalled reporting to sick bay with complaints of painful headaches and spitting up blood. He remarked that he did not report the attacks because he was afraid of retribution. When he finally revealed it to authorities, they did not believe him. He recollected that the headaches continued after service and he received treatment from private doctors. He indicated, however, that he did not have the treatment records and that he could not obtain copies because those doctors had probably passed away. In May 1997 a VA neurologist examined the veteran with respect to his cerebral white matter disease. Based on the examination and review of the record, the examiner noted that the veteran had cognitive impairment, which may predate enlistment in the military as evidenced by his report of difficulties in school. The examiner found no obvious lateralizing or localizing areas of peripheral nerve dysfunction or evidence of corticospinal dysfunction. The examiner suspected that a formal neuropsychologic testing battery and a review of the 1991 MRI scan would shed light on the veteran's condition. The examiner requested the 1991 MRI scan to review. He also sent the veteran for formal neuropsychological testing. The examiner concluded that the veteran appeared to be significantly impaired from a neuropsychiatric standpoint. The examiner, however, was unable to, with certainty, link the occurrences during his brief stay in the military with his lifelong pattern of maladaptive behavior and failure of interpersonal relationships. In September 1997, the veteran was afforded a VA neuropsychological evaluation. The examiner's impression was that this was not a totally normal examination, although the veteran's memory seemed to be adequate in most respects. His poor performance on the category test could not, in isolation, be taken as evidence of generalized neurobehavioral impairment, since a number of other general indicators were in the clear range. It could, however, be an indication of some attention slippage, since there were some suggestions of attention failure in various parts of the protocol. Given the veteran's history and presentation, the examiner felt it likely that he had a previously undiagnosed attention deficit hyperactivity disorder (ADHD) and/or a learning disability. Given the natural history of minor head trauma, the examiner thought it quite unlikely that any injury that he may have received in service more than 30 years ago has any relevance to his functioning today. VA examined the veteran in August 1999. Based on an examination of the veteran and review of the claims file, the VA physician concluded that the veteran was apparently a normal child, and after the incident in the military he developed white matter disease. In a November 1999 addendum to the May 1997 VA examination report, the same VA neurologist concluded that the veteran's neuro-cognitive dysfunction predated his military active duty and that the white matter changes noted on the neuro imaging related to some antecedent insult, such as a birth trauma or childhood infectious process. The examiner elaborated that the minor head injuries, which were reported as occurring during active duty service, in no way related to the veteran's neuro-cognitive abnormalities. The neuropsychologist's evaluation raised the issue of a long- standing learning disability plus the possibility of attention deficit disorder. These conditions would certainly indicate a precedent insult. The examiner concluded that it was his opinion that the veteran's reported neuro-cognitive difficulties predated his military service and were not related to the reported minor head trauma. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). "Every person employed in the active military . . . for six months or more shall be taken to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment." 38 U.S.C.A. § 1132. This presumption of soundness can be rebutted by the Secretary if there exists clear and unmistakable evidence demonstrating that an injury or disease existed prior to entrance into service. See 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during 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). The United States Court of Appeals for Veterans Claims (Court) has held that intermittent or temporary flare- ups during service of a preexisting injury or disease do not constitute aggravation. Rather, the underlying condition must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Initially, the evidence of record indicates that the veteran's white matter brain disease may have existed prior to service. Nevertheless, for the purposes of this decision, the Board will assume arguendo that the veteran entered service in sound condition, and decide the issue on a direct basis. Turning then to the facts of the case, the Board finds that the preponderance of the evidence is against service connection for residuals of a head injury with resultant cerebral white matter disease. In this respect, the Board notes initially that the service medical records do not reveal any evidence of head trauma, let alone trauma resulting in white matter brain disease. While the examiner noted that the veteran was subjected to hostility from his shipmates, there is no medical evidence that he sustained head trauma as a result. Therefore, the service medical records are negative for head trauma, as well as cerebral white matter disease. Second, the Board finds that the veteran's statements as to his military history are not credible. In this regard, the veteran testified that he passed out following a beating inservice, that he spit up blood for a week or two, and that he went to sick call at least 15 to 20 times. Significantly, however, the contemporaneously recorded medical records reflect no evidence that the veteran was ever rendered unconscious, no evidence that he spit up blood, and no evidence that went to sick call as frequently as he relates. Hence, the history he has provided regarding an inservice head injury is not credible. Thirdly, the preponderance of the post-service medical evidence indicates that the veteran's white matter brain disease was not caused by head trauma in service. For example, in the November 1999 addendum to the May 1997 examination report, the VA neurologist noted that, even assuming that the veteran sustained head trauma in service, this incident was not related to his current condition. Instead, the VA neurologist concluded that the veteran's neuro-cognitive dysfunction predated his military active duty and that the white matter changes noted on the neuro-imaging related to some antecedent insult, such as a birth trauma or childhood infectious process. Likewise, the September 1997 VA neuropsychological examiner felt that the veteran's disorder predated service as reflected by his learning and personality problems in school, and would not be the result of any inservice injury. The Board finds the foregoing opinions provided by the VA examiners compelling because they clearly considered the entire claims folder. They similarly relied on his pre- service, service, and post-service records in making their determinations. Significantly, they agreed that any head trauma described by the veteran was not related to his current brain disease. Therefore, the Board finds that the preponderance of the evidence does not show that the appellant current suffers from service related head injury residuals to include cerebral white matter disease. Therefore, the benefit sought on appeal is denied. In reaching this decision the Board acknowledges that the contentions that the opinions provided by Dr. Deputy in June 1991 and July 1993, and the VA examiner in August 1999 prove that he developed the cerebral white matter disease as a result of head trauma in service. The Board, however, finds that these opinions are not probative. First, Dr. Deputy in 1991 did not find that the veteran had white matter disease due to his military service. Rather, he only suggested that it was possible that white matter disease may have been caused by head trauma. As noted above, the Board finds that there is no credible evidence that the veteran was a victim of inservice head trauma. Therefore, Dr. Deputy's 1991 statement is an insufficient basis upon which to grant benefits. With respect to Dr. Deputy's 1993 statement it is well to observe that this opinion only finds that the veteran had white matter disease since the 1960's and that it was possible that the disease was due to head trauma. This opinion does not say that white matter disease began during the very narrow term of the veteran's period of active duty service, i.e., the period from July to August 1961. Moreover, the opinion does not provide any verified evidence of an inservice head injury which led to the development of white matter disease. Hence, this statement too is an inadequate basis upon which to grant benefits. Finally, while the VA examiner in August 1999 found that the veteran had white matter disease due to an inservice injury, the examiner did not indicate what independent evidence, outside the appellant's self-serving statements, he relied upon to find verification of the claim that the appellant had suffered inservice head trauma. The only conclusion that can be reached is that the examiner did not review the entire claims folder as he alleged. While an examiner can render a current diagnosis based upon an examination of the veteran, the opinion regarding the etiology of the underlying condition, without a thorough review of the record, can be no better than the facts alleged by the veteran. Swann v. Brown, 5 Vet. App. 229, 233 (1993). Therefore, the Board finds the August 1999 VA examiner's opinion lacks credibility because it is based on a reported incident of head trauma that is not corroborated by the service medical records. With respect to the veteran's own testimony that he developed white matter brain disease as a result of head trauma in service, the Board notes that, while he is certainly capable of providing the testimony offered in January 1997 and July 1993, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In other words, the veteran does not possess the medical knowledge required to competently relate any reported head trauma sustained in service to his current white matter brain disease, which was diagnosed 30 years later. The same reasoning applies to the written statements provided by the veteran's father and former employers. Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). Accordingly, the Board finds that the preponderance of the evidence weighs against the appellant's claim. Hence, service connection for residuals of a head injury with resultant cerebral white matter disease is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a head injury with resultant cerebral white matter disease is denied. DEREK R. BROWN Member, Board of Veterans' Appeals