Citation Nr: 0005073 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 95-09 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a head injury with headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from November 1942 to January 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1994 determination by the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The veteran has not presented or identified competent evidence showing that a current disability manifested by headaches is related to any head injury during service or any other event of active service, and the veteran has not presented evidence that shows a continuity of symptomatology since service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a head injury with headaches is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran's service medical records are unavailable, except for copies of the entrance and separation examination reports. These copies were obtained in October 1947. In October 1994, the National Personnel Records Center (NPRC) notified the RO that the veteran's service medical records are presumed to have been destroyed in a fire during the early 1970's at the NPRC. The separation examination report, dated January 1946, does not note a history of a head injury or contain a diagnosis of headaches or any disability resulting from a head injury. There were no residuals of a head injury noted on examination and neurological examination was normal. In 1989 the veteran filed a claim for VA pension benefits. He did not list any disabilities on his claims form. He filed an application for service connection for a head injury with headaches in September 1994. He claimed he sustained a head injury in December 1945 during service. He reported that he had been treated at VA hospitals for headaches since 1993. Later that month he indicated treatment was received at outpatient clinics. The RO has obtained abstracts of medical records from the Surgeon General's Office (SGO) pertaining to the veteran. They do not relate to a head injury. In a statement received in October 1994, the veteran contended that while being transported aboard the aircraft carrier U.S.S. Langley in 1945, a "block and tackle" that was hanging from the "ceiling" fell and hit him on the left side of his head knocking him unconscious and he awoke in sick bay. In the veteran's substantive appeal, VA Form 9, received in March 1995, the veteran reported that he was knocked unconscious after being hit in the head with a tow chain connected to a block and tackle, and that when he regained consciousness he was being treated in sick bay. The veteran stated that the pain associated with his headaches prevents him from doing routine tasks. He indicated that he has been treated for the pain by Dr. Parks in Gardena, California, and at the VA outpatient clinic in Los Angeles, California since 1989. At a personal hearing in October 1995, the veteran testified that on December 24, 1945, while being transferred back to the United States aboard the U.S.S. Langley, he was on a top bunk and a block and tackle were thrown out of the tow and the chain connected to the tackle struck him in the head. The veteran explained that the area in which the injury occurred was not designed for bunks; however, four bunks had been placed in that department for carrier soldiers. Transcript (Tr.) The veteran further testified that "from that point on, I don't remember anything...." Tr. P.2. He stated that his "next memory" was of being on a train en route to Camp Shelby, somewhere between Virginia and Mississippi. He is unsure as to how long he was unconscious. The veteran stated that he did not undergo an examination of his head or any treatment for the alleged injury to his head between the time he arrived at Camp Shelby and his discharge on January 12, 1946. The veteran stated that he has had continuous painful headaches for approximately twenty years but sought treatment for the headaches approximately 25 years ago. He testified that he has been treated at a VA outpatient clinic in Los Angeles, California. Additionally the veteran claimed that he has been treated by physicians who have performed x-ray examinations and diagnosed him with arthritis. The veteran was scheduled to appear at a Travel Board hearing in March 1997 but he failed to report for the hearing without explanation. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). 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) (1999). Analysis The threshold question to be decided in the veteran's appeal is whether he has presented evidence of a well-grounded claim. "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the veteran to produce evidence that his claim is well-grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). While the veteran has contended that his headaches are due to a head injury in service, the available service medical records are negative for evidence of a head injury. The report of physical examination at separation in January 1946 shows no residuals of any head injury and no relevant history was noted. Pertinent findings were normal. The abstracts of medical records from the SGO from 1944 and 1945 are negative for mention of a head injury. Thus, the medical evidence does not show a head injury in service or any relevant abnormality on the separation examination. The veteran filed a claim for VA pension benefits in 1989 but did not mention a headache disorder or claim service connection until several years later. The veteran acknowledged that he first began having chronic painful headaches and receiving medical treatment only twenty or twenty-five years prior to filing his claim for service connection. He does not contend that any medical care providers have related any current disability manifested by headaches to a head injury during active service. In fact, the veteran testified that the treating physicians diagnosed "arthritis." The veteran has not provided or identified competent medical evidence of a nexus between any in-service injury and a current disability manifested by headaches. The only evidence relating the headaches to the alleged in- service injury consists of statements from the veteran. The evidence does not establish that he possesses a recognized degree of medical knowledge; therefore, his own opinions as to medical diagnoses and/or causation are not competent. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Absent evidence of a link between an in-service injury and a current disability, the claim is not well grounded. In determining whether a claim is well grounded, the truthfulness of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). Nevertheless, there are obvious discrepancies between the veteran's statements at the hearing and those made in his substantive appeal as to such factual issues such as whether he regained consciousness aboard the carrier in sick bay or whether he regained consciousness after he was aboard the train headed for Camp Shelby, where, he testified, he did not receive medical treatment. Obviously both accounts can not be true. The applicable criteria for establishing service connection for a particular disability are set forth above. In this case, the veteran's service medical records, other than the entrance and separation examination reports, are unavailable, presumably having been destroyed in a fire in the early 1970s at the NPRC. Where service medical records are unavailable through no fault of the claimant, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b). O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The absence of service medical records notwithstanding, the veteran has not presented or identified competent medical evidence of a nexus between any current disability manifested by headaches, if present, and the claimed in-service head injury. Thus, his claim is not well grounded and the benefit of the doubt doctrine is not for application. The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence of any evidence that has not already been obtained that would well ground his claim. In fact, the veteran stated that the treatment he received at the VA outpatient clinic in Los Angeles is not documented. He does not allege that any existing medical opinions include a medical opinion relating his headaches to active service. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, , 126 F.3d 1464 (Fed. Cir. 1997). ORDER Entitlement to service connection for a head injury with headaches is denied. JANE E. SHARP Member, Board of Veterans' Appeals