Citation Nr: 0300656 Decision Date: 01/13/03 Archive Date: 08/07/03 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 94-05 631 ) DATE JUL 02, 2003 ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina ORDER The following correction is made in a decision issued by the Board in this case on January 13, 2003: On line 6, page 10, in the ORDER, "is not denied" is corrected to read "is denied." STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans’ Appeals Citation Nr: 0300656 Decision Date: 01/13/03 Archive Date: 01/28/03 DOCKET NO. 94-05 631 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for Crouzon's craniofacial dysostosis, to include exophthalmos and headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Krista M. Weida, Associate Counsel INTRODUCTION The veteran served on active duty from August 24, 1971 to October 1, 1971. This matter initially came to Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision by the RO. It, along with the issues of service connection for Grave's disease and glaucoma, was before the Board in June 1996 and June 1998 and was remanded for additional development of the record. In a September 2000 decision, the veteran's other claims were denied, and the issue of service connection for Crouzon's craniofacial dysostosis was again remanded for the purposes of development. The veteran was afforded a hearing at the RO in December 1995 by another Member of the Board who subsequently retired. The veteran was advised that he was entitled to another hearing, but declined such opportunity in February 2002. FINDINGS OF FACT 1. All available evidence and information necessary for an equitable disposition of the issue decided herein has been obtained. 2. The veteran's Crouzon's craniofacial dysostosis as a congenital or hereditary condition is show to have unequivocally existed prior to his period of military service. 3. The veteran's Crouzon's craniofacial dysostosis is not shown to have undergone an increase in severity beyond natural progression during his brief period of military service. CONCLUSION OF LAW The veteran's Crouzon's craniofacial dysostosis which clearly and unmistakably existed prior to service, was not aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 1137, 1153, 5107, 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background Upon entrance into service, the veteran reported a medical history of frequent headaches and ear, nose, and throat trouble. No other defects or abnormalities were noted. In September 1971, and after only three days of duty, the veteran reported during a medical examination that he had had an abnormally shaped head for "as long as he [could] remember." He further reported that he was bothered by persistent headaches. An examination revealed brachycephaly, hypertelorism, proptosis, low set ears and prognathis. X-ray studies revealed the absence of the sagittal, coronal, and lambgordal sutures, brachycehaly and maxillary hypoplasia. The examiner diagnosed the veteran as having Crouzon's hereditary craniofacial dysostosis and recommended that he be discharged from the service. Thus, the veteran was found unfit for duty and was discharged with a diagnosis of Crouzon's hereditary craniofacial dysostosis, noted to have existed prior to the military service. It was noted that it was not aggravated by service. The VA treatment records, dated in February and March 1992, show that the veteran had complaints of having pain and pressure behind his right eye. He was diagnosed as having, in part, exophthalmos. The treatment records from the Gaskin Eye Clinic, dated 1992 to 1996, show that the veteran had complaints, in part, of migraine headaches. During the December 1995 hearing, the veteran testified that he had started experiencing headaches in service after being forced to shine a bucket and put it on his head by his sergeant who then proceeded to "kind of like hit the bucket." Thereafter, the veteran stated that he sought treatment for the headaches, but that they were not a major problem. In March 1997, the veteran underwent a VA neurological examination. The veteran had complaints of having had headaches for the past twenty years that occurred about four or five times a week and lasted for one to two days. The headaches were located in the bitemporal area and were described as being a sharp, throbbing pain. The veteran stated that there was no known reliever or aggravating factor. The examination revealed that the veteran had a normal station and gait and used both hands. His cranial nerves were intact, and trapezia and sternocleidomastoid strength was within normal limits. The veteran's tongue was in midline without deviation, and there was no asymmetry, involuntary movements, weakness or atrophy of the motor system. The veteran's muscle tone was normal, and his deep tendon reflexes were symmetrical and normoactive with pain and sensory tracts intact. His finger to nose coordination was also intact. The VA examiner diagnosed the veteran as having headaches with no neurological sequelae and Crouzon's hereditary craniofacial dysostosis. The examiner noted that the craniofacial dysostosis was a heredity condition that had existed prior to his entering the service. In an October 2000 addendum, the VA examiner further stated that the veteran's disability had not increased during service and that it was not aggravated by service. Specifically, he opined that "the veteran's hereditary condition Crouzon's craniofacial dysostosis clearly and unmistakably preexisted service." Analysis Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), which contains revised notice provisions, and additional requirements pertaining to VA's duty to assist. 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West Supp. 2002). The new law applies to all claims filed on or after the date of the law's enactment, as well as to claims filed before the date of the law's enactment, and not yet finally adjudicated as of that date. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000); VAOPGCPREC 11-2000 (2000). In this case, the veteran has had an opportunity to submit evidence to support his claim on appeal in light of the above-noted change in the law and regulations. Accordingly, the Board determines that the change in the law does not preclude the Board from proceeding to an adjudication of the veteran's claim without further developing the claim, as the requirements of the new law and regulations have essentially been satisfied. In this regard, in addition to the October 1993 Statement of the Case, September 1997, March 2000, and February 2001 Supplemental Statements of the Case, and the March 2001 VCAA letter, this case was remanded in June 1996, June 1998, and September 2000 for additional development. Furthermore, the veteran was afforded a Board hearing and an opportunity for an additional hearing following the retirement of the original presiding Member. The Board also notes that the RO had difficulty locating the veteran following the June 1998 Board Remand. Information mailed to the veteran was sent back to the RO as undeliverable. The RO attempted, however, to send the information to the veteran at two different addresses on several occasions and contacted directory assistance in order to locate the veteran. Likewise, the RO sent the veteran notification of scheduled examinations in February 2000, which a copy of that letter is included in the file. It does not appear that this letter was returned undeliverable and the veteran failed to report to the examinations. As to the present issue, the March 1997 VA neurological examiner provided an opinion as to whether the veteran's hereditary Crouzon's craniofacial dysostosis clearly and unmistakably preexisted service. Therefore, even though the veteran did not report to the other examinations, the veteran was not scheduled for an examination to further develop the issue currently on appeal. The Board requested that the March 1997 VA examiner only expand on his earlier opinion, which was completed in October 2000. Thus, the veteran was not prejudiced by such lack of notification. Furthermore, the Board notes that the VA's duty to assist the veteran is not a one-way street; the veteran also has an obligation to assist in the adjudication of his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Likewise, the Board notes that "in the normal course of events, it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Therefore, the Board concludes that an adequate attempt has been made to properly inform the veteran of what is needed to adequately develop his claim. Thus, the veteran and his representative have been advised of the law and regulations governing his claim, and have been given notice of the information, medical evidence and lay evidence necessary to substantiate the claim. The RO also has made reasonable efforts to obtain relevant records adequately identified by the veteran; in fact, it appears that all available evidence identified by the veteran has been obtained and associated with the claims folder. Furthermore, the veteran underwent an adequate VA examination in conjunction with this appeal. There is no indication whatsoever that there is any existing, potentially relevant evidence to obtain, the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA, is not here at issue. See Quartuccio v. Principi, No. 01-997 (U.S. Vet. App. June 19, 2002) (addressing the duties imposed by 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159). Hence, adjudication of this appeal, without another remand to the RO for specific consideration of the new law, poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claim is ready to be considered on the merits. The veteran contends that the RO erred by not granting service connection for Crouzon's craniofacial dysostosis, to include exophthalmos and headaches. Pursuant to regulation, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (2002). The regulations also provide that a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (2002). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to the defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 1991); see also 38 C.F.R. § 3.304(b) (2002). Likewise, history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. Id. Pursuant to 38 C.F.R. § 3.303, congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. The General Counsel has held, however, that a hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness found in 38 U.S.C.A. § 1111, 1132. The General Counsel went on to state that this is a factual, medical determination, which must be based upon the evidence of record and sound medical judgment. VAOPGCPREC 67-90 (July 18, 1990). The General Counsel also held that service connection for congenital, developmental or familial disease could be granted if manifestations of the disease in service constituted aggravation of the condition. VAOPGCPREC 82- 90 (July 18, 1990). After reviewing the evidence, the Board finds that the veteran is not entitled to service connection for Crouzon's craniofacial dysostosis as it is a congenital or developmental disease that was not aggravated by his military service. First, even though the veteran was not found to suffer from any defects, infirmities or disorders upon examination for entrance into service, the Board finds that the veteran's Crouzon's craniofacial dysostosis, to include exophthalmos and headaches, clearly and unmistakably preexisted service. Although not definitive to this conclusion, the Board notes that within days of active duty, the veteran reported problems with headaches and that he had exhibited an abnormally shaped head for as long as he could remember. These notations, however, combined with the opinion of the VA neurologist, clearly support the conclusion that his disability preexisted service. In this regard, the VA examiner stated that the craniofacial dysostosis is a heredity condition that existed prior to the veteran entering service. Moreover, in an October 2000 addendum, the examiner stated that the veteran's disability did not increase during military service. It was noted that it was not aggravated by service. Specifically, he opined that "the veteran's hereditary condition Crouzon's craniofacial dysostosis clearly and unmistakably preexisted service" (emphasis added). Thus, in addition to the suffering from a hereditary disease, the Board also finds that the disability is not shown to have increased in severity beyond normal progress during the veteran's brief period of military service. ORDER Service connection for Crouzon's craniofacial dysostosis, to include exophthalmos and headaches, is not denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.