BVA9507910 DOCKET NO. 92-10 155 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for headaches. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder and depression. Entitlement to service connection for a low back disorder. Entitlement to service connection for a left knee disorder. Entitlement to an increased (compensable) rating for post- concussion syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James. J. Dunphy, Counsel INTRODUCTION The veteran served on active duty from October 1968 to March 1970. The case was previously before the Board of Veterans' Appeals (Board) in December 1992 at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The VA outpatient treatment records were to be obtained, along with records of treatment in a private facility in 1973. The relevant VA outpatient treatment records were obtained, and the veteran was requested to furnish information with regard to the private treatment. The veteran never responded to the request for information. The Board further notes that a number of letters to the veteran were returned as undeliverable. The veteran has not provided the VA with a new address. A request is pending from the Board to the Post Office for the veteran's address. It is possible that the request for information (which was not returned as undeliverable) was sent to the wrong address. However, the United States Court of Veterans Appeals (Court) has held that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the headaches, psychiatric disorder, left knee disorder and low back disorder are the result of an automobile accident in service. He further states that the post- concussion syndrome, in addition to these other disorders, precludes him from following his profession as a carpenter. 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 preponderance of the evidence is against the veteran's claim for service connection for headaches, a psychiatric disorder, a low back disorder and a left knee disorder. It is the Board's decision, further, that the preponderance of the evidence is against the veteran's claim for an increased rating for post-concussion syndrome. FINDINGS OF FACT 1. The current vascular headaches are not related to service. 2. Post-traumatic stress disorder (PTSD) is not shown. 3. An etiological relationship between dysthymia or depression, first shown post-service, and the incidents of service is not shown. 4. A history of a left knee disorder was reported on entrance examination, but no pathology with regard to the left knee was noted on examination. 5. A left knee injury in service was acute and transitory and resolved prior to separation from service, and an etiological relationship between the post-service left knee disorder and any incident of service is not shown. 6. The low back pain that was reported at the time of the in- service motor vehicle accident was acute and transitory, and resolved prior to separation from service. 7. An etiological relationship between the post-service back disorder and any incident of service is not shown. 8. The veteran's post-concussion syndrome does not result in gross organic mental impairment and motor, sensory and reflex functions are unimpaired. CONCLUSIONS OF LAW 1. Headaches were not incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 5107 (West 1991). 2. A psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 5107 (West 1991). 3. A left knee disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.304, 3.306 (1994). 4. A low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 5. A compensable rating for post-concussion syndrome is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 8045 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran was involved in a motor vehicle accident in April 1969. He was momentarily rendered unconscious. He was able to get up after a period of a few minutes, but his memory remained poor. On admission to the hospital, he complained of pain in the left forehead, chest and back. He had no abdominal pain or pain in the extremities. On examination, he was alert and oriented, but was in mild distress. There was an excoriation of the left forehead with some tenderness. A skull X-ray showed a right parietal skull fracture. He was hospitalized for a period of 9 days, then placed on convalescent leave. A report of follow-up treatment in July 1969 indicated that the veteran had some difficulty concentrating, but seemed to be improved slightly. The impression was mild post-concussion syndrome. I. Entitlement to service connection for headaches Initially, the Board notes that the veteran's claim is well grounded. By this, the Board means that he has submitted a claim which is plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107 (West 1991). For service connection to be warranted, it must be demonstrated that there is a present disability, and that there is a reasonable nexus between the current disability and the incidents of service. 38 U.S.C.A. § 1110 (West 1991). A review of the evidence currently of record leads the Board to conclude that service connection is not warranted for the headaches. When the veteran was examined for compensation purposes for the VA in February 1991, he described the headaches as a bilateral throbbing pain with nausea and vomiting, along with occasional numbness of the fingers. On examination, there was no gross organic mental impairment. He was not dysarthric and his cranial nerves were unremarkable. Motor, sensory and reflex functions were unimpaired. The examiner concluded that the veteran had vascular headaches (migraine variant) which were responding to medication. Subsequent reports of outpatient treatment for the migraine headaches are of record. In July 1991, his records were reviewed by two VA physicians, who specifically precluded the in-service head trauma as the etiology of the veteran's headaches. The veteran has contended that the headaches are the result of the automobile accident. He has further submitted statements from friends and co-workers detailing the severity of the headaches. However, it was specifically noted in the examination report that the headaches were of a vascular origin, and further noted during treatment that they were not of a post-traumatic origin. This must be weighed against the veteran's contention that there is a medical nexus between the headaches and the automobile accident in service. As lay persons, neither the veteran nor the other individuals who submitted statements are competent to offer an opinion which establishes medical causation. Grottveit v. Brown, 5 Vet.App. 91 (1993). Accordingly, the Board finds that the preponderance of the evidence is against the veteran's contention that there is a nexus between the current headaches and the automobile accident in service. Therefore, his claim to this extent must be denied. II. Entitlement to service connection for a psychiatric disorder Initially, the Board notes that the veteran's claim is well grounded. By this, the Board means that he has submitted a claim which is plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107 (West 1991). A review of the evidence of record indicates that when the veteran was examined for compensation purposes by the VA in February 1991, he reported treatment for depression in 1973, a few years after his discharge from service. An attempt was made to secure these records; however, as the veteran failed to cooperate with the VA's request for information, these records are not available. On the compensation examination, he expressed feelings of helplessness, inadequacy, frustration and anger. He did not show any evidence of a thought disorder, and he denied any delusions or hallucinations. He was alert and oriented to all spheres, and memory was grossly intact. Judgment and insight were fair. Concentration was impaired. The diagnostic impression was dysthymia; rule out mild organic mental disorder; and past history of alcohol and cannabis abuse. The veteran has thus demonstrated the first threshold element required for a grant of service connection, the presence of a current disability. In making such a determination, the Board specifically notes that repeated examination and outpatient treatment has never shown the presence of post-traumatic stress disorder (PTSD), and that service connection for this disorder is therefore not plausible. Turning then to the issue of whether service connection is warranted for a mental disorder other than PTSD, the Board notes that the veteran was referred for mental hygiene evaluation in February 1970. An evaluation in March 1970 yielded no diagnosis. Unspecified "nervous trouble" due to "family problems" was reported on the separation examination in March 1970, but it was noted that the veteran had received no treatment and that there were no sequela. On examination, there were no psychiatric abnormalities noted. The Board must weigh the contemporaneous evidence contained in the service medical records with the veteran's uncorroborated contentions that there is a relationship between service and his present disorder. The Board must ascribe much higher probative weight to the reports of medical personnel in service than to the veteran's unsupported conclusions. There was only a notation of "nervous trouble" during service, and it was specifically indicated that there was no psychiatric diagnosis during his period of service. The Board therefore finds that the preponderance of the evidence is against the veteran's claim for service connection for a psychiatric disorder. III. Entitlement to service connection for a low back disorder Initially, the Board notes that the veteran's claim is well grounded. By this, the Board means that he has submitted a claim which is plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107 (West 1991). For service connection to be granted for a disorder, it must be shown that there is the presence of a current disorder and that the disorder was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). In the veteran's case, he has demonstrated one of the threshold requirements, that is, the presence of a current disability. On VA compensation examination in February 1991, the impression included low back pain with sciatica. The Board must now determine whether he has demonstrated a nexus between the current disability and the incidents of service. At the time of the automobile accident, the veteran reported back pain. However, on the initial examination, no back pathology was noted. Subsequent to hospitalization and convalescent leave, there was no finding with regard to any form of back disorder. When the veteran was examined in March 1970, for the purpose of separation from service, he did not report any back problems, and examination of the spine revealed no abnormalities. A further review of the February 1991 examination report indicates that the veteran reported he has had a problem with low back pain since subsequent to a lifting injury while working for the school board, subsequent to service. This evidence shows that the back pain that the veteran experienced at the time of the automobile accident in service was acute and transitory, and resolved without residual disability prior to separation from service, and that the current back disorder arose post-service and is unrelated to service. The evidence must be weighed against the veteran's unsubstantiated statements that his current back disorder is the result of the in-service automobile accident. The Board must ascribe much higher probative weight to the contemporaneous evidence of record than to the veteran's statements, many years after the fact. Therefore, service connection for a back disorder is not warranted. IV. Entitlement to service connection for a left knee disorder Initially, the Board notes that the veteran's claim is well grounded. By this, we mean that he has submitted a claim which is plausible. The Board further concludes that the VA has met its statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107 (West 1991). When the veteran was examined in August 1968, for the purpose of entry onto active duty, he reported that he had underwent an arthrotomy of the left knee in 1966. On examination, the left knee was stable, and there was full function. The report of the entrance examination did not demonstrate the presence of a left knee disorder at the time of entry onto active duty. The history which the veteran gave on the entrance examination is not considered sufficient by itself to rebut the presumption of soundness. Rather, the history must be considered together with all other material with regard to inception. 38 C.F.R. § 3.304 (b)(1) (1994). In this case, the absence of any pathology at the time of entrance leads the Board to find that a left knee condition was not present at the time of entry onto active duty. Therefore, the question for Board review is whether a left knee disorder was incurred in military service. In December 1969, the veteran reported left knee pain subsequent to walking 10 miles. He further reported swelling and a "giving" sensation. On examination, there was full range of motion of the left knee, with much pain on motion. There was tenderness over the lateral joint line and effusion. The leg was to be immobilized, and the veteran begun on exercises. The assessment, after orthopedic and physical therapy consultations, was recurrent trauma, left knee. No further treatment was required for the left knee during his period of service. A review of the treatment records subsequent to the automobile accident indicates that the veteran did not injure his left knee at that time. When the veteran was examined for the purpose of separation from service in March 1970, he again reported the pre-service history of knee procedures. However, he did not indicate that there was any additional left knee pathology, and physical examination at that time did not reveal any pertinent abnormalities. When the veteran was examined for compensation purposes by the VA in February 1991, he reported the childhood surgery, and further noted the automobile accident in service. On examination, there was full range of motion of the extremities, without any edema, swelling or clubbing. The impression included status post left knee cartilage repair. The Board notes that the veteran has demonstrated one of the threshold requirements for a grant of service connection, the presence of a current disability. Now, the Board must weigh the evidence on the question of whether this current left knee disorder had its origin in service. On one side is the contemporaneous evidence, against the veteran's claim, demonstrating that the left knee problem during service was acute and transitory, and resolved prior to separation from service. Weighed against that are the veteran's unsubstantiated contentions that service connection is warranted for a left knee disorder. The Board must afford the evidence generated during the veteran's period of service, supporting the proposition that there was no chronic left knee disorder arising out of service, much greater probative weight. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a left knee disorder. V. Entitlement to an increased rating for post-concussion syndrome As noted, the veteran sustained a concussion in the automobile accident in service. He now argues that the residuals of this concussion are more disabling than currently evaluated. In rating the residuals of the concussion the Board must determine whether there are neurological disabilities, such as hemiplegia, epileptiform seizures, or facial nerve paralysis, or subjective complaints such as headache, dizziness, or insomnia. The neurological complaints will be rated under the diagnostic codes specifically dealing with such disabilities, while the subjective complaints will be rated 10 percent and no more under diagnostic code 9304 (dementia associated with brain trauma). This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi- infarct dementia associated with brain trauma. 38 C.F.R. Part 4, Code 8045 (1994). The Board further notes that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide a no-percent evaluation, a no-percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1994). On VA compensation examination in February 1991, the veteran gave no history of hemiplegia, epileptiform seizures, or facial nerve paralysis. There was no gross organic mental impairment. The cranial nerves were unremarkable, and motor, sensory and reflex functions were unimpaired. The presence of headaches was reported, but these headaches were considered vascular and not post-traumatic in origin. Under such circumstances, the Board finds that the required residuals needed for a compensable evaluation are not shown, and that the preponderance of the evidence is against the veteran's claim for an increased rating. In reaching the above decision, the Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the Board finds that the evidence discussed above does not suggest that the veteran's service-connected residuals of a concussion present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321 (b)(1) (1994). For example, the disability in question did not recently require frequent periods of hospitalization, nor does it cause marked interference with employment which is not in some way already contemplated by the evaluation currently in effect. The Board notes the veteran's contention that the post-concussion syndrome limits his ability to work as a carpenter. However, the statements the veteran has provided indicate that this difficulty is also due to the veteran's frequent headaches, a disorder for which service connection has been determined not to be appropriate. ORDER Service connection for headaches, a psychiatric disorder, a back disorder and a left knee disorder is denied. An increased rating for post-concussion syndrome is denied. WILLIAM J. REDDY 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.