BVA9501961 DOCKET NO. 92-55 270 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a head injury, to include a nervous condition, dizziness and loss of balance, neck pains, and migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his wife, sister, and brother-in-law ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty in the United States Army from September 5, 1944 to November 15, 1944, at which time he was administratively discharged due to being below minimum physical standards for induction. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1990 rating decision of the Roanoke, Virginia, Department of Veterans Affairs Regional Office (VARO). The procedural history of this case has been thoroughly set forth in the Board's remand decision of December 28, 1992. In accordance with the Board's December 1992 remand, the requested development was accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. With respect to the development of the record on appeal, it is the Board's opinion that VARO fulfilled its statutory duty to assist the appellant in developing the pertinent facts in this case; it appears that all service, VA, and private medical records which are available have been associated with the claims file. See Dusek v. Derwinski, 2 Vet.App. 519 (1992). Accordingly, the Board will proceed to a disposition on the claim which is presently certified for appellate consideration. See Certification of Appeal, VA Form 1-8 (confirmed on October 18, 1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that he is entitled to service connection for the disorders claimed on appeal. A more detailed account of his contentions will be provided below in this decision. 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(s). 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 a preponderance of the evidence of record is against the appellant's claim seeking entitlement to service connection for residuals of a head injury. FINDINGS OF FACT 1. The appellant served on active duty from September to November 1944. 2. The appellant's service medical records were destroyed in 1973 in a fire at the National Personnel Records Center in St. Louis, MO. 3. The record on appeal supports the appellant's account of sustaining a head injury in service in approximately October 1944. 4. Post service medical records reflect that the appellant was initially treated in June 1989 for complaints of anxiety and depression secondary to excessive worry about having cancer. 5. There is no objective, credible showing of continuity of symptomatology or treatment of any residuals of a head injury in the post service years, nor a demonstrated relationship between his psychiatric complaints of anxiety and depression, first evident in 1989, and any incident of military service. CONCLUSION OF LAW No chronic residuals of a head injury were incurred during active military service. 38 C.F.R. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VA and that a disposition on the merits is now in order. The appellant seeks entitlement to service connection for residuals of a head injury, to include a nervous condition, dizziness and loss of balance, neck pains, and migraine headaches. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while on active duty. 38 U.S.C.A. § 1110 (West 1991). 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) (1993). 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; the presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d) (1993). I. Factual Background The appellant filed his original claim for service connection for residuals of a head injury in August 1989. In a statement submitted in support of his claim, dated January 3, 1990, the appellant described the factual circumstances involving his alleged in-service head injury, in pertinent part: In the course of my training cycle we were required to have Gas Warfare Training in which we (trainees) were required to enter a Gas Chamber, smell the gas and then put on our issued Gas Mask.... I, in serial order, entered the building, took a breath of the gas, put on my mask, proceded [sic] to breath normally (mask was later thought to be defective) and almost at once, experienced painful choking, excrutiating [sic] chest pain, vomiting and tear [sic] blindness. I was later advised by the attending Medical staff that I had passed- out in the chamber and received a nasty head bump, when my head struck the concrete floor.... A few days later, I was still experiencing head pain and dizziness, so they extended my barracks confinement for approximately 5 days. I later felt better and was returned to my Company to continue basic training. I experienced only slight discomfort and a few periodic losses of equilibrium and dizziness in the following week. In addition to the above, the appellant described a second incident involving grenade throwing exercises which occurred during a later stages of his basic infantry training. In that incident, he claimed to have sustained loss of consciousness while attempting to throw a live grenade. He indicated that a supervising officer saved his life when he quickly realized the appellant's predicament and threw the grenade away before it exploded within their immediate proximity. The appellant indicated, in substance, that his loss of consciousness was pathologically related to the head injury sustained in the gas chamber. With respect to the residual nature of his claimed disability, the appellant described a variety of medical conditions which he claims to have suffered from in the years after service related to the aforementioned head injury. (The Board notes that he has clarified his claimed residual disabilities pursuant to instructions provided in our December 1992 remand; those disabilities include a nervous condition, dizziness and loss of balance, neck pains, and migraine headaches). He further stated that he did not file a claim for these disabilities until many years after service because of a mistaken belief that he was not eligible for VA disability compensation benefits. VARO's development of the appellant's claim revealed that his service medical records were destroyed in a fire at the National Personnel Records Center, St. Louis, Missouri. See Request for Information, VA Form 70-3101-4 (October 27, 1989). Exhaustive and extensive efforts to procure his service medical records, as ordered by the Board's December 1992 remand, proved entirely unfruitful. In addition, development of the record revealed that any records from the U. S. Selective Service System (SSS) which might have pertained to the appellant's reinduction physical examination allegedly performed by the SSS in approximately September 1945 were not available as well. See Letter from SSS to VARO Adjudication Officer dated January 28, 1993. Morning reports dated October 4-6, 1944, October 19, 1944, and October 23, 1944, were obtained; however, while those reports reflect that the appellant was placed on light duty, they do not document any complaints, treatment, clinical findings, or diagnoses of a mental or physical condition. In conjunction with the development and adjudication of the appellant's claim, VARO obtained VA and private medical records which postdated his period of service by over thirty years. Private medical records from the Memorial Hospital of Martinsville and Henry County (MHMHC), VA, reflect that the appellant was hospitalized in January 1976, for a right inguinal hernia, and then again in July 1989, for symptoms compatible with acute depression, major, and acute gastritis with dehydration. The admission summary report from the July 1989 hospitalization at MHMHC indicated the following concerning his past medical history, in pertinent part: Patient's never had any serious injuries. He has only one surgery. This was for repair of a right inguinal hernia. He has had some strained back in the past. This patient was drafted into the service during World War II, stayed less than 90 days and was discharged because of nervous problems. Physical examination during his three day period of hospitalization at MHMHC was essentially negative; clinical work- up included a computerized tomography (CT) scan of his brain which revealed a normal pre and post contrast study, and a "[g]rossly negative" neurological examination. The discharge report indicated that the appellant would be admitted to a psychiatric facility for further treatment and evaluation. Medical records from the Roanoke Valley Psychiatric Center (RVPC), Salem, VA, reflect a one month period of hospitalization in July-August 1989, in accordance with the aforementioned psychiatric referral from MHMHC. The admission summary report from RVPC indicated that it was the appellant's first psychiatric admission at that facility. His chief complaint was depression and anxiety secondary to excessive worry about having cancer. Past medical history was not indicated to be contributory to his complaints: No stated allergies. Medications are only Imipramine 150 mg a day, Xanax 1 mg a day. Apparently he was struck by lightening as an adolescent and was discharged from the army about a year later because of nervousness in 1945. Herniorrhaphy on the right. No medical history otherwise. No alcohol, drug nor legal problems mentioned. No previous psychiatric treatment. Physical examination during his course of hospitalization at RVPC was essentially negative, significant only for x-ray findings showing disc narrowing at the C5-7 levels. Neurological examination was negative as well; gait, stance, coordination, muscle tone were considered adequate and reflexes were brisk and symmetrical; however, the left brachial and radial reflexes were decreased compared with the right. Sensory examination was negative for any pathology of the head, extremities, or torso. Clinical findings on mental status examination revealed an anxious/ depressed mood, with psychomotor retardation. The appellant's depressed mood was considered improved following seven electroconvulsive therapy treatments and he was discharged with instructions to seek follow-up consultation with his family physician in one month. Discharge diagnosis was major depression, Axis I, with a mixed personality on Axis II diagnosis. Two days later, on August 30, 1989, the appellant was admitted to the VA Medical Center (VAMC), Salem, VA, for complaints of depression and reported suicidal ideations. The appellant specifically denied any suicidal ideations; however, the discharge summary report indicated that "... he did not remember much since he had 7 ECT's [shock therapy treatments] at Roanoke Memorial Hospital." Medical history was as described above in this decision, significant for excessive worry about having gastrointestinal cancer, with associated loss of appetite. Physical examination was negative except carious teeth. Mental status examination revealed and anxious and depressed mood. The appellant remained hospitalized at VAMC for approximately three weeks; however, that period included only nine days of actual inpatient hospitalization; he was granted a two week authorized absence to be with his family. Discharge diagnosis was major depression, recurrent. He was instructed to seek outpatient follow-up treatment in the Mental Hygiene Clinic. VA outpatient treatment reports dated between October 1989 and February 1991 reflect follow-up evaluation and treatment in the VAMC's Mental Hygiene Clinical for his above described complaints of gastrointestinal distress and for anxiety and depression. Medical records from the appellant's family physician, S. W. Adams, M.D., reflect outpatient care from January 1986 through August 1989, for a variety of medical conditions, including hypertension, constipation and stomach pains, skin rash and blisters, gout of left toe, right knee contusion, bee sting on left hand, fungus infection of left buttocks, flu and cold symptoms, as well as for his complaints of anxiety and depression which were first treated beginning in June 1989, as indicated above and reflected in the hospital reports from MHMHC and RVPC. In addition, Dr. Adams indicated in a statement addressed "To Whom It May Concern" dated June 13, 1991, that the appellant had been his patient for the past thirty-eight years [or since approximately 1953] and that "[d]uring that period of time, he has had problems handling the usual stresses that occur and becomes [sic] depressed easily." The Board notes that VARO's efforts to obtain additional medical records from Dr. Adams, as well as from a Dr. Irby, proved unsuccessful. In addition, VARO obtained a number of lay statements from friends and relatives, all of whom in substance attested to the fact that the appellant sustained the aforementioned described in-service head injury and that he suffered from multiple physical and mental complaints secondary to that injury in the years after service. Testimony elicited from the appellant, his wife, sister, and brother-in-law at a hearing held at VARO in June 1991 essentially reiterated his contentions with respect to the issue on appeal. II. Analysis Where service medical records are presumed destroyed, the Board's obligation to explain its findings and to consider the benefit of the doubt rule is heightened. O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991) (emphasis added). In this case, the Board concludes that the appellant's reported history of sustaining a head injury in service must be accepted, since no evidence of record contradicts his account of this event. However, notwithstanding the above, the Board is of the opinion that the greater weight of the evidence supports a conclusion contrary to the claim made by the appellant. The undersigned believes that the objective evidence of record is insufficient to establish the presence of any chronic residuals of the head injury sustained during service in 1944. The Board notes that there is no objective evidence of complaints, treatment or manifestations of residuals of the head injury in the years immediately following service or until June 1989, when the appellant saw Dr. Adams for complaints of anxiety and depression. While Dr. Adams' June 1991 statement indicates that the appellant was treated on occasion for anxiety in the years following service, his statement alone, without some form of objective clinical corroboration, is considered to be of insufficient probative value to serve as the basis for service connection. See Wood v. Derwinski, 1 Vet.App. 190 (1991). Even assuming that Dr. Adams could clinically verify that he did in fact treat the appellant for anxiety prior to June 1989, such clinical records would have to relate a chronic condition to the in-service head injury. Since, by his own admission, he did not treat the appellant until approximately eight years after service [1953], and given the fact that he has not proffered an opinion relating the appellant's anxiety complaints to any event or incident of service, the Board feels that Dr. Adams' June 1991 statement is of limited probative value with respect to the issue on appeal. As indicated above in this decision, post-service medical records reflect actual treatment and evaluation for the appellant's psychiatric complaints beginning in 1989, and such records clearly point to a more recent onset pathology of excessive worrying over a feared cancer condition, as opposed to any pathology related to an incident of service, nearly half a century earlier. With respect to the other claimed residual disabilities, the record on appeal does not reflect any objective medical treatment for, or diagnosis of, dizziness and loss of balance, neck pains, or migraine headaches. Dr. Adams' uncorroborated medical history, as well as the appellant's contentions advanced on appeal, are not considered to be of sufficient probative value to establish continuity of symptomatology where the evidence of record reflects a forty-five year gap in time (November 1944 to June 1989) in which there is no medical evidence showing any complaints, treatment or manifestations of the claimed residuals of the head injury. The lack of documented treatment for any of these conditions within the immediate post service years or for many years thereafter weighs heavily against the appellant's claim, and accordingly, the evidence does not form a basis to warrant service connection. The appellant's contentions, including his testimony at a hearing held in June 1991, and statements submitted in support of his claim by friends, acquaintances and relatives, without clinical corroboration, are considered to be of insufficient probative value to serve as the basis for a grant of service connection for the disability at issue. As indicated above, the contemporaneous medical evidence which postdates his period of service does not at all lend credence to or corroborate the appellant's reported medical history or the lay statements of record. In order for a veteran to be awarded service connection for a disability, there must be evidence both of a service related disease or injury and a present disability which is attributable to such disease or injury. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Accordingly, the Board finds no objective medical evidence to support a grant of service connection for residuals of a head injury as either incurred in or aggravated by military service. 38 C.F.R. §§ 3.303, 3.306 (1993). No medical evidence pertaining to the claimed condition appears of record until many years after service. The appellant failed to provide credible evidence to account for the lengthy time period for which there is no clinical documentation of his claimed residual disability. See Mense v. Derwinski, 1 Vet.App. 354 (1991). Based on the foregoing, the Board believes that service connection for the claimed disability should be denied. The preponderance of evidence found probative to the issue weighs against a grant of the benefit sought; the benefit of the doubt is for application where the evidence of record is found to be relatively evenly balanced. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. KENNETH R. ANDREWS, JR. 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.