BVA9507202 DOCKET NO. 92-01687 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION The veteran had active service from December 1936 to January 1940; from January 1940 to October 1945; and from April 1948 to June 1961. Service connection for residuals of a head injury was previously denied by the regional office (RO) in December 1980. The veteran did not appeal the January 1981 notice to him of that determination. In January 1991, the veteran's request to reopen his claim was denied by the St. Petersburg, Florida, Regional Office (RO). The current appeal ensues from his disagreement with that determination. In November 1991, a hearing officer determined that the evidence was new and material, reopened the claim, and denied the benefit sought. The case came before the Board in December 1992, at which time it was remanded for additional development. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he sustained a head injury in service in a parachute jump in about 1948 or 1949, while he was stationed in Japan. He maintains that his parachute malfunctioned, and he hit the ground on his back and head. He blacked out four or five times immediately thereafter. Since then, he has experienced dizzy spells. During service he was hospitalized for six weeks for evaluation of the dizzy spells while he was in Panama. Since service he has lost a lot of time from work due dizziness, and accompanying nausea, vomiting, pain, and disequilibrium. He points out that he is service-connected for his back and neck injury residuals, and asserts that since he injured his head in the same accident, his head injury residuals cannot be dissociated from the neck injury in particular. Attention is also drawn to the January 1993 magnetic resonance imaging (MRI) report, which indicates there may be a connection between the veteran's inservice head injury and current symptomatology. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has submitted new and material evidence to reopen his claim, and that the preponderance of the evidence is against the claim for service connection for residuals of a head injury. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. Service connection for residuals of a head injury was denied by an unappealed rating action of December 1980. 3. Evidence submitted since then is new and material. 4. Residuals of an inservice head injury have not been demonstrated, either in service or thereafter. 5. Currently shown brain and neurological abnormalities are not shown to result from trauma to the head. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for residuals of a head injury is reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. Residuals of a head injury were not incurred in or aggravated by active service, and organic brain disease may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we find that the appellant's claim is well-grounded; that is, it is plausible. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1991). The relevant facts have been properly developed, and, accordingly, the statutory obligation of the Department of Veterans Affairs (VA) to assist in the development of the appellant's claim has been satisfied. Id. New and material evidence to reopen claim Service connection for a back disorder was denied by the RO in December 1953. That decision is final in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(a), 20.302 (1994). However, if new and material evidence is received with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" is defined by regulation as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of a claim. 38 C.F.R. § 3.156(a) (1994). In December 1980, the veteran's claim for residuals of a head injury was denied on the basis that no residuals of a head injury were shown. Evidence submitted since then includes clinical documentation of current organic cerebral anomalies, part of which "may" be due to trauma, as well as sworn statements from witnesses to the claimed head injury. This evidence is new and material. In this regard, we note that in determining whether evidence is new and material, evidence is presumed credible for the sole purpose of determining whether the case should be reopened; determinations of credibility are made after the claim is reopened. Justus v. Principi, 3 Vet.App. 510 (1993). Accordingly, the claim is reopened. Hence, the Board is compelled to review all the evidence, both old and new. Manio v. Derwinski, 1 Vet.App. 140 (1991). In addition, we do not believe the appellant will be prejudiced by our deciding the case on the merits at this time. In this regard, the veteran has presented arguments, including testimony at a hearing, regarding the merits of the claim, and has been furnished citation to the law and regulations applicable to the underlying merits. See Bernard v. Brown, 4 Vet.App. 384 (1993). Factual background Service medical records show a notation in July 1948 of a head injury; examination was negative. In February 1949, headache, nausea, weakness, vertigo and a chilly feeling were noted. The impression was motion sickness. A reenlistment examination in March 1952, as well as a separation examination and a reenlistment examination in March 1955, were negative for pertinent complaints or abnormalities. In October 1955 he complained of a cold, headache, dizziness, light-headedness and a slight cough. In November, he had also developed stomach upset. The impression was intestinal flu. In February 1958, he complained of chronic back pain since 1949 following a parachute training accident, with increasing pain. He was referred to the orthopedic clinic, where he stated that he had hurt his back in a parachute jump in 1949, but had never reported for sick call. Since then he had had some back pain in the lower lumbar region. He also complained of neck muscle tightness with weakness bilaterally radiating into the arms. Elsewhere, it was noted that he was to be admitted for evaluation of low back pain, and headaches and dizzy spells. A summary of hospitalization from February to March 1958 indicated a history of an injury to the low back when parachuting in 1949. He had been seen by a doctor four days later but examination had revealed nothing. However, since then he had dull low back pain. In addition, about a year earlier he had noted a tightness of the muscles of his neck, causing soreness in the back of his head. Examination revealed some tenderness to palpation of the trapezius near the insertion of the occiput. Turning the head to either side caused some pain on the opposite side of the neck. Multiple projections of the skull were negative on X-ray. A neurology consultation resulted in an impression of organic lesion such as a disc. He was placed in head traction following an onset of cramping pains in the neck along with headaches. The symptoms subsided prior to discharge. The final diagnoses were herniated nucleus pulposus of L4-S1, and observation, surgical, for neck pains, no disease found. An annual physical examination in September 1958 disclosed a history of chronic low back strain. On a reenlistment examination dated in January 1959, chronic low back pain was noted; there were no complaints or abnormal findings referable to a head injury. An outpatient treatment note of October 1960 indicated complaints from the neck down the right arm, post- occipital headaches with standing, and multiple complaints referable to the back. In March 1961, he stated he had had the onset of low back pain and neck pain following a parachute jump in 1949. Since then, he had suffered intermittent pain in the neck and low back. Examination revealed "pretty much" full range of motion in the cervical spine, with a clicking sensation in the cervical spine when twisting it from side to side. On a retirement examination in March 1961, he had numerous complaints including a complaint of pressure at the base of the skull. He responded yes to whether he had ever had frequent or severe headache, and no to whether he had ever had dizziness or fainting spells. There was slight spasm of the paraspinal muscle on examination, and the diagnosis was strain of the muscles and ligaments of the cervical area, chronic. In April 1961 he was hospitalized for evaluation of neck and low back pain, in connection with Medical Board proceedings brought at the veteran's "insistence because he [felt] he should be medically retired." He gave a history of having initial trouble following a parachute jump in 1949. He had intermittent neck and lumbar pain since that time. A more severe attack had occurred in 1958 for which he had been hospitalized in Panama, and treated with traction and physiotherapy. Records stated gradual improvement, although the veteran denied that any measures in the past had ever been beneficial. Examination revealed moderate stiffness of the neck and tenderness of the paracervical musculature. X-rays of the cervical spine were normal. In conclusion, it was noted that "[u]nfortunately, he does not have a single incapacitating diagnosis. Further, the condition is not considered ratable according to the VA Schedule for Rating Disabilities." The final pertinent diagnosis was strain, muscles and ligaments of the cervical area, chronic, initial onset following a parachute jump in 1949, manifested by intermittent episodes of neck pain. He was not given a medical retirement. Subsequent to service, there is no record of the veteran's medical status until 1980, when he initially filed a claim for compensation benefits. At that time, he claimed to have injured his head and back in 1949, and his neck in 1958. On a VA examination in November 1980, the veteran reported that his entire back had been injured in a parachute jump in 1948. In addition, his helmet had been knocked off, and he had lost consciousness at least five times within a short period of time afterwards. He stated he currently had difficulty turning his head from side to side, and that if he turned rapidly, he would get very dizzy. X-rays of the skull revealed a calcified pinea as well as calcifications of the choroid plexus gomera. Nevertheless, the impression was of an essentially normal skull for the patient's age. The pertinent diagnosis was head injury, not found. In December 1980, service connection was granted for lumbosacral strain, as well as residuals of a cervical spine injury. As noted above, service connection for residuals of a head injury was denied at this time. VA treatment records dated from 1987 to 1993 show the veteran's treatment for complaints including neck pain. In February 1988, in rehabilitation medical services, he complained of neck pain which was so bad at times that he could not walk because of dizziness. In October 1988, an electromyogram (EMG) was conducted which was negative. The examiner was noted to be concerned with the history of seizures or attacks the veteran had had for three years, which were increasing in severity; the most recent one had included vomiting, incontinence, difficulty rousing and mental confusion. Further studies were recommended. A computerized tomography (CT) scan in October 1988 revealed bilateral symmetrical cerebellar and cerebral parenchymal calcifications. Most likely etiologies were noted to include idiopathic calcifications, hypoparathyroidism, hypothyroidism, Fahr's disease, previous radiation therapy or Methotrexote administration. An electroencephalogram (EEG) in November 1988 was normal. In December 1988, the veteran was hospitalized for evaluation of chest pain. The veteran also complained of dizzy spells starting in his neck. In addition, the veteran's wife had noted syncopal episode which lasted approximately 10 minutes. The veteran reported having had dizzy spells since 1970. A history of questionable seizure activity and neck pain with negative work-up to date was reported. It was noted that a neurology consultation had resulted in a conclusion of possible early dementia and/or cervical spine spondylosis; the dizziness was of questionable etiology. Later that month, another CT scan of the head was performed, which was unchanged since the previous examination in October 1988. Likewise, an EEG recorded in January 1989 was very similar to the previous EEG of November 1988. An outpatient neurology consultation of February 1989 revealed the veteran complained of dizziness when he turned his head too fast. Decreased cervical motion was observed, and degenerative joint disease of the cervical spine, basal ganglion calcification, hypoparathyroidism and Fahr's disease were to be ruled out. A VA neurology clinic outpatient note dated in May 1989 showed the veteran's complaints including neck pain and dizzy spells. In May 1989 the veteran sought a second opinion from a private neurologist, E. Bass, M.D. Dr. Bass wrote that the veteran estimated that he had been in from 250 to 500 parachute jumps, and that he had been injured in 1948 when his parachute failed to fully open. He struck the back of his head, was in and out of consciousness several times, and had had intermittent neck pain since that time. Current symptoms reportedly included about five episodes, evidently precipitated by moving the head too quickly, in which he would get cold, clammy, pale, glassy-eyed, and experience blurred vision, diarrhea, and vomiting, as well as a lack of responsiveness on one occasion. The impression was chronic cervical pain, for which magnetic resonance imaging (MRI) was recommended to rule out cord compression; and episodes of dizziness, lightheadedness, and coldness, suggestive of presyncopal episodes, which seemed to be in response to some painful precipitating event. In June 1989, the veteran suffered a cerebrovascular accident. In August 1989, statements were received from three individuals who wrote that they had observed his fall in service and immediate sequelae. R. Rogers wrote that the veteran's parachute had partially opened, and the veteran had landed on his head and back, blacked out about four or five times, and had suffered dizzy spells since. C. White wrote that he had observed a partial malfunction of the veteran's main parachute, and that the veteran hit the ground with excessive force, landing on his "back and shoulders, head." He had been rendered unconscious, and suffered pain and headaches for several days. H. Woempner wrote that he recalled that in the fall of 1948, the veteran had had a partial parachute malfunction, and had landed very hard on his back, shoulders and head, knocking himself unconscious. He had complained of dizziness and headaches, and reported for sick call. In addition, a letter from J. Hembree was received, dated in May 1991, to the effect that on one of their monthly jumps, the veteran had a partial malfunction, and hit the ground very hard with his back, shoulders and head. He experienced pain, headaches and dizzy spells for some time after that. An outpatient treatment note dated in January 1992 noted that the vertigo was most likely benign positional given the history since the 1940's, although further studies were recommended. A neurology consultation in January 1993 was conducted to evaluate the veteran's complaint of constant dizziness, which he had had since 1949, but which had worsened since the 1970's. He also had nausea, vomiting and diarrhea, as well as difficulty with balance. A history of a cerebrovascular accident in 1990 was noted, as was a history of head trauma in 1948. The symptoms were worsened with a change in head position. It was noted that multiple CT scans had shown bilateral symmetrical cerebellar and cerebral parenchymal calcifications. Skull X-rays taken in January 1993 showed physiologic calcification of the choroid plexus, noted to be a normal finding. A VA examination in January 1993 noted the history of head injury in 1948. On this occasion, symptoms of vertigo since 1970, without associated nausea and vomiting was noted. The diagnoses were stroke, head trauma and basal ganglia calcification. The calcification was felt to be most likely due to aging or idiopathic causes. In January 1993, the veteran underwent MRI which revealed extensive calcium and metal deposition, which could represent a neurodegenerative process; extensive atrophy of the frontal and parietal regions superimposed on a generalized atrophic appearance, which may be due to a primary neurodegenerative disorder or the history of trauma; and a right paryngeal cyst. Neurology follow-up in March 1993 indicated the MRI had shown calcification, as well as generalized atrophy consistent with degenerative disease. Due to increased iron, he had been started on medication, without improvement. The assessment was possible progressive supranuclear palsy or Parkinsonism feature due to the basal ganglion calcium deposition. Analysis Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). If the disability is an organic brain disability, service connection may be established if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 , 1131 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). In evaluating the veteran's claim, it must be determined whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In weighing the evidence, we initially note that the service medical records contain a July 1948 notation of a head injury. However, examination was normal, there was no indication of accompanying loss of consciousness, and the injury was not mentioned during the remaining 13 years of the veteran's service. In addition to the lack of any demonstrated residuals, there was no indication that the injury was connected to a parachute jump. In February 1949, reported symptoms included vertigo; however, motion sickness was thought to be the cause. Headaches and dizzy spells were noted in February 1958, but during the subsequent hospitalization, he was treated for neck pain, for which he is already service-connected. During several periodic examinations conducted throughout service, a head injury, or residuals thereof, were never noted; in 1958, when the evidence first shows a report of an injury from a parachute jump, only the back was noted to have been injured. Throughout the remainder of the veteran's service his complaints regarding the previous injury were limited to the cervical spine and the lower back. There was no indication that a head injury or loss of consciousness had been involved. We find this silence significant, particularly in connection with the Medical Board he instigated in 1961 in pursuit of a medical retirement. The earliest evidence of the veteran having sustained a head injury, in addition to the neck and back injuries reported earlier, in a parachute jump in service consists of his own statements provided in 1980, 19 years after his separation from service, and over 31 years after the alleged injury. Because the veteran was not in combat at the time, 38 U.S.C.A. § 1154(b) (West 1991) does not apply. Years later, in connection with the current claim, the veteran obtained statements from fellow servicemen which detailed their recollections of the inservice injury. However, these recollections were based on events that allegedly transpired over 40 years prior to the statements, and, in light of the elapsed time, are insufficient to outweigh or bring into equipoise the negative weight of the absence of any contemporaneous indication of such an injury. In this regard, we must emphasize that there is no contemporaneous inservice account of the parachute injury at all; not until 1958 did the veteran begin complaining of residuals of this 1948 or 1949 injury. Even then, he did not report having injured his head or lost consciousness, a significant omission under the circumstances. Moreover, there is insufficient evidence to find that the veteran currently has residuals of a head injury. The majority of the veteran's complaints over the past several years have been concerned with his neck and upper extremity pain and disability. In 1989, he suffered a stroke; since then, there has been treatment for residuals of that as well. A somewhat inconsistent symptom history has been reported, with, for example, nausea and vomiting noted to have accompanied his syncopal-type episodes on a consult of January 1993, contradicting a VA examination later that month explicitly noting the absence of nausea and vomiting. Nevertheless, although the etiology of the veteran's symptomatology has not been clearly established, the only evidence suggesting a linkage with a previous head injury is the MRI report of January 1993 which indicated that cerebral atrophy may be due to a primary neurodegenerative disorder or to trauma. However, the VA examination in January 1993 did not indicate any connection with a prior head injury, and the subsequent outpatient treatment note dated in March 1993 indicated that the atrophy was consistent with degenerative disease. There is no medical evidence suggesting the possibility of a causal connection between a head injury and the calcifications. Consequently, in view of the foregoing discussion, the preponderance of the evidence is against the claim for service connection for head injury residuals. ORDER Service connection for residuals of a head injury is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.