Citation Nr: 0006782 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 94-27 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a closed head injury. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active military service from January 1954 to January 1957. This matter comes to the Board of Veterans' Appeals (Board) from an April 1994 rating decision of the Department of Veterans Affairs (VA) Houston Regional Office (RO) which denied his request to reopen his claim of service connection for the residuals of a closed head injury on the basis that no new and material evidence had been submitted since the prior denial of service connection in February 1975. In October 1997, he testified at a Board hearing in Washington, D.C. In December 1997, the Board remanded the matter for additional development of the evidence. FINDINGS OF FACT 1. By February 1975 rating decision, the RO denied service connection for residuals of a closed head injury; no appeal was initiated within one year following notice to the veteran in February 1975. 2. Evidence received since the last final February 1975 rating decision includes clinical records not previously considered which bear directly and substantially on the specific matter under consideration regarding the issue of service connection for residuals of a closed head injury. 3. The veteran has reported that he sustained head injury in service and the record contains medical evidence linking his current post-concussion headaches to his reported in-service head injury. CONCLUSIONS OF LAW 1. The February 1975 rating decision which denied service connection for residuals of a closed head injury is final. 38 U.S.C. § 4005(c) (1974) [38 U.S.C.A. § 7105(c) (West 1991)]; 38 C.F.R. § 19.153 (1974) [38 C.F.R. § 20.1103 (1999)]. 2. New and material evidence has been received to warrant reopening of the claim of service connection for residuals of a closed head injury. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. Post-concussion headaches were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's service medical records are largely unavailable; however, he asserts that in November 1955, he was hit in the head by a recoiling gun carriage. He states that he received treatment in the field following the injury, including three stitches for a forehead laceration. Thereafter, he maintains that he experienced "migraine headaches" and blackouts and was hospitalized for several days the following month. The record reveals that repeated attempts by the RO to obtain the veteran's service medical records have been unsuccessful. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). The RO did obtain military sick reports which indicate that the veteran was hospitalized for six days in December 1955 at the 7100th U.S. Air Force (USAF) Hospital in Wiesbaden, Germany, but the reason for the hospitalization was not indicated. Repeated efforts by the RO to obtain the hospitalization records were to no avail. The veteran's October 1956 military separation medical examination report, however, is of record, and it is negative for pertinent complaint or abnormality. On clinical evaluation, his head was normal and no neurologic or psychiatric disorders were identified clinically. In October 1966, the veteran submitted an informal claim of service connection for several disabilities, including residuals of a head injury. The RO duly forwarded a formal application form to him for completion, but he did not respond. In April 1973, the veteran submitted a claim of entitlement to nonservice-connected disability pension benefits, claiming that he was disabled due to a psychiatric disability. His application form is silent for notation of a head injury or residuals thereof, including headaches. In support of his claim, the RO obtained an April 1973 VA hospitalization summary showing that the veteran had been admitted for treatment of anxiety neurosis and alcohol addiction. On admission, he reported that he had been hit on the head in 1955 and had "migraine headaches" since that time. Evaluation showed that his memory was intact, he was oriented in all three spheres, and he was able to concentrate. Skull X-rays were within normal limits. In August 1974, the veteran submitted a formal claim of service connection for several disabilities, including residuals of a head injury. In support of his claim, the RO obtained May and October 1974 VA hospitalization summaries showing diagnoses of anxiety reaction and alcoholism. During his periods of hospitalization, the veteran also reported that he had been having blackout spells for the past three months. A history of a head injury and headaches was not noted. By February 1975 rating decision, the RO denied service connection for residuals of a head injury on the basis that his in-service head injury was not documented by the evidence of record. In addition, the RO denied service connection for an acquired psychiatric disorder and blackouts. The veteran was notified of this decision by February 1975 letter sent to his address of record. However, he did not file an appeal within the applicable time period; thus, the decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In June 1975, he submitted a claim for nonservice-connected disability pension benefits. The RO obtained VA hospitalization records, dated from June to September 1975, showing that the veteran had sought admission "with an expressed purpose of getting disability compensation." He reported that in 1955 he had been struck in the head (but not rendered unconscious) by a snowball containing a rock. He stated that he currently experienced blackout spells. The examiner noted a history of marital problems, anxiety, and alcoholism, but the veteran denied current problems with alcohol. The examiner noted that there were some discrepancies between the veteran's account of his alcoholic history and the objective medical record. He also noted that the veteran made an "almost delusional" attempt to link the cause of his troubles to an in-service snowball incident. The diagnoses on discharge were chronic anxiety reaction and alcohol abuse by history. The veteran again requested nonservice-connected disability pension benefits in June 1977, claiming that he was totally disabled due to a nervous condition. The RO obtained records showing that the veteran had been hospitalized again in November 1976 and June 1977 for treatment of anxiety reaction and chronic alcoholism. A history of a head injury was not noted in these records, nor were complaints of headaches or blackouts. In a July 1978 claim for nonservice-connected pension, the veteran claimed that he was totally disabled due to "nerves" and a low back condition. The RO obtained a July 1978 VA hospitalization summary showing that he had been admitted following an automobile accident with complaints of low back pain. On admission, neurological examination showed normal mental status, cranial nerves, and motor examination. The diagnosis was low back pain. In December 1989, the veteran again filed a claim for nonservice-connected pension, stating that he was unable to work due to a low back condition. A December 1989 VA hospital report shows that the veteran was admitted for treatment of lumbar radiculopathy. A history of head injury was not noted, nor were complaints of headaches or blackouts. Physical examination the head was normal, the pupils were reactive to light and the extraocular movements were intact. In June 1992, the veteran again requested nonservice disability pension benefits, stating that he was disabled due to a low back disability, severe headaches, and a nervous disorder. In support of his claim, the RO obtained private treatment records dated from January to October 1992 showing treatment for a low back disability. In October 1992, he sought treatment for neck pain after he fell down the stairs; the veteran reported that he felt dizzy before he fell. On examination, the examiner noted alcohol on the veteran's breath, as well a history of alcohol abuse. A computerized tomography (CT) scan of the head showed no evidence of any underlying brain abnormality, although there was atrophy greater than expected for the veteran's age. A history of an in-service head injury was not noted. An April 1990 VA hospitalization report showed treatment for conversion reaction with emotional overlay. During this period of hospitalization, an extensive psychiatric history was noted, including a history of conversion reaction and Fugue states. Outpatient treatment records from January to May 1992 show treatment for low back and neck pain; on examination, cranial nerves II to XII were intact. In June 1992, the veteran again requested nonservice disability pension due to low back disability and a nervous disorder. On VA medical examination in July 1993, he gave a rambling account of an in-service blow to the head which he indicated was the cause of his psychiatric difficulties. The diagnosis was conversion disorder. In February 1994, the veteran submitted an application to reopen his claim of service connection for residuals of head injury. He submitted duplicates of his service medical records and morning reports. VA outpatient treatment records from January 1993 to January 1994 showing treatment for low back pain. In October 1997, the veteran testified at a Board hearing that he served as a gun mechanic in an anti-aircraft artillery battery during service, and that in November 1955, his company was in training exercises in Germany when a round jammed in a 75 millimeter, hydraulically-operated gun. As the only mechanic trained in the operation of the weapon, he stated that he was ordered to dislodge the round. When he did so, he stated that the gun carriage recoiled, struck him on the head and knocked him to the ground. He reported receiving treatment in the field following the injury, including three stitches for a forehead laceration. Thereafter, he indicated he developed "migraine headaches" and blackouts and was hospitalized for several days the following month. He stated that, since service separation, he continued to have residuals from his in-service injury, including headaches, dizziness, and blackouts. He stated that his headaches became so severe that he was hospitalized for 90 days at the Houston VAMC in 1957; he claimed to have been treated by a "Dr. Welch" there who diagnosed a fractured skull. In December 1997, the Board remanded the matter for additional development of the evidence, to include an attempt to obtain the 1957 VA hospitalization records identified by the veteran. Pursuant to the Board's remand, the RO obtained a copy of a September 1957 VA hospitalization report showing that the veteran had been treated for hemorrhoids. No notations of a head injury or residuals thereof, including headaches, were noted. Also obtained by the RO was a duplicate of the April 1993 hospitalization summary and additional records corresponding to that period of hospitalization. Such records show that the veteran was treated for anxiety neurosis and alcohol addiction. In addition, he reported severe headaches since a 1955 in-service head injury. An electroencephalogram (EEG) revealed poorly sustained alpha activity, but the study was within the range of normal variation. A skull X-ray was unremarkable. In July 1999, the veteran underwent VA neurological examination at which he reported a history of in-service head injury. He stated that two days after his injury, he began to have headaches which had not resolved, but which were controlled with medication. He also reported a history of blackouts since the 1960s. The diagnoses were post- concussion headaches, rule out seizures. A subsequent EEG was normal. The examiner concluded that the veteran's chronic headaches appeared to have a temporal association with the in-service head injury. He indicated that it was impossible to substantiate the veteran's accounts of the head injury, as his service medical records had been lost. However, the examiner indicated that from the veteran's account, it appeared that he had sustained a head injury in service and that, because of the temporal relationship between the headaches and the head injury, it was quite possible that the headaches were post-concussion headaches. At a July 1999 VA psychiatric examination, the veteran's in- service head injury was again noted. He reported that he had a history of headaches and blackouts since that time. The diagnoses included cognitive disorder, anxiety disorder, and alcohol abuse, in remission. The examiner concluded that the veteran's cognitive disorder, alcohol abuse, and anxiety disorder were not related to any traumatic brain injury he received in service; rather, he indicated that the likely cause of the veteran's cognitive disorder was his advanced age and admitted heavy alcohol use. II. Analysis As noted, the veteran now seeks to reopen his claim of service connection for residuals of a head injury. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). The U.S. Court of Appeals for Veterans Claims (Court) has held that a three-step analysis must be performed when a claimant seeks to reopen a previously denied claim. Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). First, it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, the case must be reopened and immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). Third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. Under applicable regulation, "new and material evidence" is defined as evidence not previously submitted to agency decision makers 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Fossie v. West, 12 Vet App 1 (1998). In Hodge, the Federal Circuit noted that not every piece of new evidence is "material," but that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually alter a rating decision. Id., 155 F.3d at 1363. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). However, this presumption of credibility is not unlimited. The Court has subsequently held that the Justus credibility rule is not "boundless or blind;" if the newly submitted evidence is "inherently false or untrue," the Justus credibility rule does not apply. Duran v. Brown, 7 Vet. App. 216 (1994). With these considerations, the Board must now review the all of the evidence which has been submitted by the veteran or otherwise associated with the claims folder since the last final decision in February 1975. That evidence includes a July 1999 VA neurological examination report indicating the possibility of a link between the veteran's current headaches and his reported in-service head injury. Given the nature of the veteran's claim, the Board finds that this is new and material evidence sufficient to reopen the claim of service connection for a residuals of a head injury. In view of the foregoing, the Board will review the claim de novo. In light of the favorable decision below, obviously no prejudice results from the Board's actions in this regard. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1999). Service connection may also 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) (1999). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, a veteran is entitled to the "benefit of doubt" when there is an approximate balance of positive and negative evidence. The preponderance of the evidence must be against the claim for benefits to be denied. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, after reviewing the evidence of record, the Board has determined that service connection for post- concussion headaches is warranted. Although his service medical records are unavailable, the veteran has consistently described an in-service head injury. Although at his military separation, examination of the head and neurological system was normal, the veteran has stated on numerous occasions that shortly after his injury, he experienced headaches on a regular basis which have continued since that time. The Board finds that the veteran's statements to this effect, including at his October 1997 hearing, are credible. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that a veteran can provide probative evidence as to symptomatology sufficient to establish service connection). In this regard, the Board notes that continuity of symptomatology, not continuity of treatment, is required to establish a nexus between a disorder noted during service and a chronic disorder found after service. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Moreover, the record contains a July 1999 VA examination report in which the examiner indicated that the veteran's headaches were quite possibly of a post-concussion type and were related to his reported in-service head injury. Based on the foregoing, the Board believes that the evidence in this case is at least in relative equipoise as to the issue of service connection for post-concussion headaches; thus, the veteran prevails on that issue. Gilbert, 1 Vet. App. at 54. In light of the reported in-service head injury, the veteran's credible statements of continuity of headache symptomatology since service, and a VA medical opinion linking the veteran's current headaches to his in-service head injury and reported continuous symptomatology, the Board is of the opinion that the evidence of record is sufficient to support service connection for post-concussion headaches. However, as the preponderance of the evidence indicates that any blackouts, psychiatric disability, cognitive impairments, and alcoholism are unrelated to his period of service or any incident therein, service connection for those particular claimed residuals of a head injury is not warranted. ORDER Service connection for post-concussion headaches is granted. J.F. GOUGH Member, Board of Veterans' Appeals