Citation Nr: 0005807 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97-26 533A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for residuals of a head and facial injury, to include trigeminal neuralgia. REPRESENTATION Appellant represented by: William J. Kenney, Attorney WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD William J. Jefferson, Counsel INTRODUCTION The veteran had active service from May 1964 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) San Diego, California, Regional Office (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's trigeminal neuralgia is likely the result of head and facial injuries sustained during service while aboard the U.S.S. Liberty. CONCLUSION OF LAW Service connection is warranted for residuals of a head and facial injury, to include trigeminal neuralgia. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran was involved in combat during service; he received the Purple Heart and Combat Action Ribbon. Pursuant to 38 U.S.C.A. § 1154(b), statements made by the veteran that during service aboard the U.S.S. Liberty, he sustained facial and head injuries, is sufficient to show service-incurrence for purposes of a well-grounded claim. The evidence, as discussed in detail infra, also reveals a current disability and a medical nexus relating the current disability to service. In this regard, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a), and that all relevant facts have been properly developed to comply with the duty to assist. I. Facts Service records confirm that the veteran served aboard the U.S.S. Liberty, and that in June 1967 the U.S.S. Liberty was involved in hostile action. Clinical records reveal that during June 1967 the veteran received treatment for shrapnel wound injuries and lacerations of the right hand, right leg, and right elbow. The service medical records, including the February 1973 separation examination report, are entirely negative for any complaints or findings of any disability of the head/face, or for facial pain or nerve damage. Private clinical records from Kaiser Permanente, from January 1992 to August 1994, reflect that the veteran received treatment for atypical right facial pain. On a January 1992 referral for a computed tomography scan, it was reported that he had a history of a shrapnel (wound) injury to the right jaw. Findings from that scan, of the sinuses and brain, revealed left maxillary sinus opacification consistent with sinusitis. During a December 1993 private medical examination, the veteran indicated that he had had facial pain for approximately six years. At a VA neurological examination in November 1994 the veteran reported that he had had facial pain since 1969. He claimed that he had "nerve damage" that was possibly caused by a torpedo explosion during service. It was reported that pieces of shrapnel had been removed from the right parietal scalp. The diagnoses indicated that there was no evidence of damage to cranial nerves. It was also indicated that the veteran had symptoms consistent with cluster headaches or atypical facial pain. An inservice comrade, in a November 1995 statement, reported that in June 1967 he had helped rescue the veteran from the torpedoed U.S.S. Liberty. When the veteran was rescued he was reportedly drowning and unconscious, and was bleeding from arm and leg wounds. In a November 1995 statement from the veteran's private physician, Jorge Lipiz, M.D., it was reported that the veteran had not described migraine headaches, and had no typical presentation of cluster headaches or other similar pain syndrome. Rather, the veteran had atypical facial pain which, according to the veteran, had been present after a reported facial injury that was sustained during service. A February 1996 statement from a physician who claimed he was a medical officer aboard the U.S.S. Liberty when it was torpedoed in June 1967, has been submitted. The physician reported that when the U.S.S. Liberty was torpedoed he personally treated the veteran for a cerebral concussion and multiple mini-fragment facial wounds. The physician opined that the veteran's (facial) pain syndrome was consistent with trigeminal neuralgia, which in good medical probability was a late complication of facial injuries incurred at the time of the inservice trauma. It was indicated that the veteran's symptoms "may be at least partially central, resulting from the cerebral concussion/contusion, and anoxic unconsciousness... ." In an August 1997 statement, the inservice physician reiterated that he had treated the veteran in service, and that the torpedo blast explosion could be the cause of the veteran's nerve pain. He also stated that post-traumatic stress disorder could have contributed to, or caused, the veteran's pain. A VA neurological examination was performed in February 1998. The veteran's medical history included information concerning the inservice torpedo explosion. It was reported that there was no direct facial injury as far as could be determined; no laceration occurred nor had fragments been documented. The veteran reported that he had had intermittent pain since the inservice incident. The physical examination was negative; cluster headaches were diagnosed. The physician opined that there was no evidence of residual effect from the "concussive" event itself. There was no local injury to the face, skin or head. A personal hearing was held at the RO in December 1997. The veteran testified concerning the torpedo explosion that he was subjected to during service. He stated that the only head wound he received treatment for at the time was a concussion. He testified that after the explosion he did not have any facial wounds, but had had a little bit of shrapnel in his head. The veteran asserted that initially his symptoms had been diagnosed as sinusitis. In 1992, he said, nerve damage was diagnosed. The veteran was provided an otolaryngological examination by VA in June 1998, at which time he was diagnosed with turbinate hypertrophy, chronic (left) maxillary sinusitis and septal deviation. The examiner stated that the diagnosis was related to the veteran's inservice head injury. A VA neurological examination was performed in June 1998. The veteran complained that he had had facial pain since 1970. Objective physical findings were negative. The diagnosis was atypical facial pain. It was indicated that another diagnostic possibility was trigeminal neuralgia. The physician stated that the connection between the veteran's current symptoms and the 1967 injury was no more than possible and certainly not probable. It was stated that the veteran had had a cerebral concussion. In terms of percentages, the physician stated that there was perhaps a 10, at most 20 percent connection between the service event and the veteran's atypical facial pain condition. II. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), the adverse effect of the absence of service clinical records of disability incurred during combat may be overcome by satisfactory lay or other evidence sufficient to prove service incurrence if consistent with the circumstances, conditions or hardships of service, notwithstanding the fact that there is no official record of such incurrence. To this end every reasonable doubt will be resolved in the veteran's favor. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 5107(b). Collette v. Brown, 82 F.3d 389 (1996). The veteran contends that his current facial pain is the result of a concussion and injuries sustained when his naval vessel, the U.S.S. Liberty, was torpedoed during service in June 1967. Service data confirm that the veteran served aboard that ship and that he sustained some injuries when the vessel was attacked in June 1967. It is noteworthy though that the service medical records are entirely absent for any complaints or findings referable to head injuries, and the alleged inservice treating physician is not shown to be among those named in the service medical records who rendered care for the veteran at that time. Nonetheless, the veteran received the Purple Heart, and is a combat veteran. His assertion, that he sustained a head/facial injury as a result of the torpedo explosion blast, is sufficient proof of service incurrence of such injury. Given the nature of the attack and his other resulting injuries, his assertion of a head/facial injury is likewise clearly consistent with the circumstances, conditions or hardships of service. There is little, if any, contrary evidence in this regard. Although the veteran is not qualified to diagnose any current, resultant disability from such an inservice trauma, he is competent to state that he incurred such an injury and that he has subsequently had facial pain. See Robinette v. Brown, 8 Vet. App. 69 (1995); Savage, supra. Just as such evidence is necessary to well ground a claim, a combat veteran must likewise have evidence of a medical nexus relating his current disability to service in order to prevail. See Libertine v. Brown, 9 Vet. App. 521 (1996). The first evidence of the veteran's facial pain was not reported until many years after service, and there is conflicting evidence as to when the pain began or what the etiological relationship is between the pain and service. There are, however, two reasonably clear medical opinions that diagnose trigeminal neuralgia, and provide a possible nexus to service: the February 1996 statement by the inservice physician, and the February 1998 VA neurological examination. The first of these provides a clear nexus between the inservice trauma and current trigeminal neuralgia, even though it is apparently not based upon recent examination findings. The second, while determining a relatively low probability of a nexus, was based upon recent examination findings. The two opinions, taken together, bolster each other to show evidence of a nexus between the inservice injury and the veteran's facial pain, diagnosed as trigeminal neuralgia. The Board notes that, pursuant to a September 1998 hearing officer's decision, the veteran is now service connected for sinusitis, which has, at times, been clearly diagnosed separately from his facial pain. Although there is some evidence to indicate that this may have been the cause of his facial pain, there are enough diagnoses of record that convincingly distinguish the two conditions. The diagnoses of atypical facial pain, conversely, do not clearly identify a disability. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). As noted, however, the veteran does have more than one diagnosis of trigeminal neuralgia, and more than one medical opinion that links this disability to the inservice trauma. When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Board finds, with an approximate balance of positive and negative evidence in this case, that the veteran is entitled to the benefit of the doubt. Service connection is warranted for residuals of a head and facial injury, to include trigeminal neuralgia. 38 U.S.C.A. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. ORDER Entitlement to service connection for residuals of a head and facial injury, to include trigeminal neuralgia, is granted. Mark D. Chestnutt Acting Member, Board of Veterans' Appeals