Citation Nr: 0813669 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-37 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable evaluation for splenic flexure syndrome. 2. Entitlement to an initial evaluation in excess of 10 percent for sarcoidosis. 3. Entitlement to an initial compensable evaluation for right ovarian cyst and status post left ovarian cyst removal, also claimed as corpus luteum cyst and pelvic pain. 4. Entitlement to an initial compensable evaluation for status post incision and drainage left Bartholin gland abscess. 5. Entitlement to an initial compensable evaluation for acne. 6. Entitlement to service connection for residuals of a right thumb injury. 7. Entitlement to service connection for status post dilatation and curettage, also claimed as pelvic pain. 8. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from August 1979 to May 2000. This case come before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the RO that granted service connection for splenic flexure syndrome, sarcoidosis, right ovarian cyst and status post left ovarian cyst removal, status post incision and drainage left Bartholin gland abscess, and acne, each evaluated as noncompensable. The RO also denied service connection for migraine headaches, residuals of a right thumb injury, and status post dilatation and curettage, also claimed as pelvic pain. The veteran filed a timely appeal of these determinations to the Board. In February 2006, the RO increased the evaluation of the veteran's sarcoidosis to 10 percent disabling. In November 2007, the veteran, accompanied by her representative, testified at a hearing before the undersigned Acting Veteran's Law Judge in Washington, DC. A transcript of these proceedings has been associated with the veteran's claims file. The issue of entitlement to a higher initial evaluation for service-connected sarcoidosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In March 2008, at a hearing before the Board and prior to the promulgation of a decision in the appeal, the veteran notified VA that she wished to withdraw her claims of entitlement to higher initial evaluations for splenic flexure syndrome, right ovarian cyst and status post left ovarian cyst removal, status post incision and drainage left Bartholin gland abscess, and acne, as well as claims of entitlement to service connection for residuals of a right thumb injury and status post dilatation and curettage, also claimed as pelvic pain. 2. The veteran's currently diagnosed migraine headaches as likely as not had their clinical onset during the veteran's period of active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the veteran (or his or her representative) concerning the issues of entitlement to higher initial evaluations for splenic flexure syndrome, right ovarian cyst and status post left ovarian cyst removal, status post incision and drainage left Bartholin gland abscess, and acne, as well as claims of entitlement to service connection for residuals of a right thumb injury and status post dilatation and curettage, also claimed as pelvic pain, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. By extending the benefit of the doubt to the veteran, migraine headaches are due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn claims. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, the record indicates that in March 2008, at a hearing before the Board, the veteran withdrew her appeal as to the claims for entitlement to higher initial evaluations for splenic flexure syndrome, right ovarian cyst and status post left ovarian cyst removal, status post incision and drainage left Bartholin gland abscess, and acne, as well as claims of entitlement to service connection for residuals of a right thumb injury and status post dilatation and curettage, also claimed as pelvic pain. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these claims. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. II. VCAA On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. VCAA has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. This change in the law is applicable to all claims filed on or after the date of enactment of VCAA, or filed before the date of enactment and not yet final as of that date. The Board has considered this legislation, but finds that, given the favorable action taken below with respect to the veteran's migraine headache claim, no discussion of VCAA at this point is required. II. Service connection. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303 (2003). In addition, if a condition noted during service is not noted to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2004). Pertinent regulation also provides that 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) (2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, the veteran has been diagnosed with migraine headaches. Although the Board has reviewed the lay and medical evidence in detail, the Board will focus its discussion on evidence that concerns whether the veteran's current disability is related to a disease or injury in service. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran testified before the Board that she began having migraine headaches in service, when she was stationed in Germany between 1979 and 1981. She indicated that she went to the emergency room on numerous occasions for these headaches and that she had these headaches every two to three months and sometimes monthly. The veteran reported that she still has these headaches, although she indicated that the severity is somewhat less now, and that they are the same type of headaches that she had when she was in the service. The veteran's service medical records indicate that the veteran was seen in 1982 in the emergency room for complaints of headaches. These were diagnosed as cluster headaches. At the emergency room the veteran reported a history migraine headaches. A May 2003 VA examination report shows the examiner diagnosed the veteran with migraine headaches. Following a careful review of the record, and resolving all reasonable doubt in the veteran's favor, the Board concludes that service connection for migraine headaches is warranted. In the present case, the Board finds the veteran's account of her medical history credible. The veteran testified to a history of migraine headaches going back to service. And the medical evidence indicates that she was treated and diagnosed with headaches as far back as 1982. The Board notes that the RO acknowledged that the veteran was seen and treated for migraine headaches in service, but denied service connection for this condition indicating that the veteran's service records do not show that the veteran's headaches were chronic in service. The Board, however, observes that the veteran is competent to report the onset of symptoms, and continued symptomatology since that time and found the veteran's testimony at the November 2007 hearing credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 70 (1994) (holding that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge). Thus, the veteran has provided the necessary nexus between the current diagnosis of migraine headaches and service. The Board finds that the evidence supports the veteran's claim of service connection for migraine headaches. Service connection for this condition is therefore granted. ORDER 1. The appeal concerning the claims for entitlement to higher initial evaluations for splenic flexure syndrome, right ovarian cyst and status post left ovarian cyst removal, status post incision and drainage left Bartholin gland abscess, and acne, as well as claims of entitlement to service connection for residuals of a right thumb injury and status post dilatation and curettage, also claimed as pelvic pain, are dismissed. 2. Service connection for migraine headaches is granted. REMAND After a careful review of the claims folder, the Board finds that the veteran's claim of entitlement to a higher initial evaluation for service-connected sarcoidosis must be remanded for further action. Here, the Board notes that the veteran, in testimony before the Board, identified medical records relevant to the veteran's claim that have not been associated with the veteran's claims file. Specifically, the veteran indicated that her private physician, Dr. Grover, treats for her sarcoidosis and administers pulmonary function tests every two to three months related to this condition. The veteran also indicated that she is seen at Walter Reed Medical Center in connection with this condition. Upon remand, the RO/AMC should attempt to obtain these records. The veteran should also be afforded an opportunity to submit any recent medical records or opinions pertinent to her claim that have not already been associated with the veteran's claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(c) (2004). In view of the above, this matter is REMANDED for the following actions: 1. The RO/AMC should contact the veteran and request that she identify all VA and non-VA health care providers, other than those already associated with the claims folder, that have treated her for her service- connected sarcoidosis since service. This should include treatment records from her private physician, Dr. Grover, dated since service. This should also include relevant records from Walter Reed Medical Center, dated since service. The aid of the veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran should be informed in writing. The veteran may also submit any private medical records directly to VA. 2. After associating with the claims folder all available records received pursuant to the above-requested development, if the veteran's medical records indicate a worsening in her condition, the RO/AMC should arrange for the veteran to be afforded an appropriate VA examination in order to determine the nature, extent and severity of her service-connected sarcoidosis. It is imperative that the examiner who is designated to examine the veteran reviews the evidence in the claims folder and acknowledges such review in the examination report. All indicated testing should be accomplished. The examiner should specifically comment on whether the veteran's condition is productive of: (i) chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment, (ii) pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids, (iii) pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control, or (iv) cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. The examiner should also indicate whether the condition is productive of: (i) Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted, (ii) FEV-1 of 56- to 70- percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65- percent predicted, (iii) FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), or (iv) FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record. 3. After completion of the foregoing, and after undertaking any further development deemed warranted by the record (and keeping in mind the dictates of the Veterans Claims Assistance Act of 2000), the RO/AMC should readjudicate the veteran's claim. The veteran and her representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs