Citation Nr: 1237404 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 06-38 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a headache disability. 2. Entitlement to an initial compensable rating for bilateral otitis media. 3. Entitlement to an initial compensable rating for chronic allergic perennial rhinitis. 4. Entitlement to an initial rating higher than 10 percent for mood disorder. 5. Entitlement to an initial compensable rating for status post repair of the right long and little fingers. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to May 1982, from August 1982 to July 2000, and from June 2002 to June 2004. These matters come before the Board of Veterans' Appeals (Board) from June 2005, November 2006, and April 2008 decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Des Moines, Iowa and St Paul, Minnesota. In the June 2005 decision, the RO granted service connection for bilateral otitis media, chronic allergic perennial rhinitis, and status post repair of the right long and little fingers and assigned initial noncompensable disability ratings, all effective June 17, 2004. In the November 2006 decision, a Decision Review Officer denied entitlement to service connection for migraines. In the April 2008 decision, the RO granted service connection for mood disorder and assigned an initial 10 percent disability rating, effective November 20, 2007. The RO in Des Moines, Iowa currently has jurisdiction over the Veteran's claims. The Veteran testified before the undersigned at a July 2012 videoconference hearing at the RO. A transcript of the hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. During the July 2012 hearing, the Veteran raised the issue of entitlement to service connection for a neurologic disability of the right forearm. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to higher initial ratings for bilateral otitis media, chronic allergic perennial rhinitis, mood disorder, and status post repair of the right long and little fingers are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current headache disability, namely migraines, is the result of an in-service disease or injury. CONCLUSION OF LAW The criteria for service connection for a headache disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). As the Board is granting the claim of service connection for a headache disability, the claim is substantiated and there are no further VCAA duties at this time. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Medical records, including a February 2009 VA primary care outpatient treatment note, reveal that the Veteran has been diagnosed as having migraine headaches. Thus, a current headache disability has been demonstrated. Service treatment records include a September 1998 report of treatment for a 4 week history of frontal headaches associated with persistent nasal congestion. A diagnosis of sinusitis was provided. In January and April 2004, the Veteran was prescribed medication for headaches (zolmitriptan). Additionally, he reported during the July 2012 hearing that he began to experience headaches after he hit his head entering a bunker while stationed in Saudi Arabia during the Persian Gulf War. Headaches have reportedly persisted ever since that time. The only medical opinion as to whether the current disability is related to service is that of the advanced registered nurse practitioner who conducted a September 2006 VA Gulf War examination. The examiner opined that the Veteran's current headache disability, diagnosed as migraines, was likely ("at least as likely as not") caused by, or the result of, service. While the examiner who provided the September 2006 opinion did not provide any specific rationale, the examiner nonetheless concluded that based upon examination of the Veteran and a review of his medical records and reported history that his current headache disability was related to service. There are no medical opinions contrary to that of the September 2006 opinion. In light of the September 2006 opinion, the evidence of headaches in service, and resolving reasonable doubt in the Veteran's favor, the Board concludes that his current headache disability, namely migraine headaches, is related to service. Accordingly, service connection is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for a headache disability, namely migraines, is granted. REMAND A veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of the veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence (including a veteran's statements) of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). The evidence indicates that the Veteran's service-connected otitis media, rhinitis, and mood disorder may have worsened since his last VA examinations in July 2010. For example, the July 2010 VA examination reports reflect that speech recognition ability in both ears was 94 percent, that the Veteran's nose was clear ("patent") bilaterally, that he and his wife would sometimes ride their motorcycles and eat dinner out with other couples, and that he maintained some social connectedness. However, a May 2011 VA audiology evaluation note and a February 2012 examination report from Mercy Family Clinic reveal that speech recognition ability was 92 percent in both ears and that examination of the Veteran's nose revealed nasal mucosa with marked erythema and rhinorrhea. Also, during the July 2012 hearing the Veteran reported that he was more socially isolated and no longer interacted with friends. Given the above evidence, VA's duty to obtain new examinations as to the current severity of the Veteran's service-connected otitis media, rhinitis, and mood disorder is triggered. As for the service-connected status post repair of the right long and little fingers, the Veteran was afforded a VA examination in July 2010 to assess the severity of the disability. However, the ranges of motion of the long finger were not recorded and a higher rating is potentially warranted based on limitation of long finger extension under the applicable criteria. See 38 C.F.R. § 4.71a, diagnostic code 5229 (2011). Thus, the July 2010 examination is inadequate and a new examination is necessary. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2011); see 38 C.F.R. § 19.9 (2011). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to assess the current severity of the service-connected bilateral otitis media. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. All indicated tests and studies, including a puretone audiometry test and a speech recognition test (Maryland CNC test), should be conducted. The examiner must also describe the functional effects of the Veteran's hearing disability. The examiner must provide reasons for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. Schedule the Veteran for a VA psychiatric examination to assess the current severity of his service-connected psychiatric disability. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should report the nature and severity of all signs and symptoms of the Veteran's service-connected psychiatric disability, describe the impact of the disability on occupational and social functioning, and provide a Global Assessment of Functioning score. The examiner must provide reasons for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. The agency of original jurisdiction (AOJ) should contact the Veteran and coordinate with him to schedule a VA examination during a time in which he is experiencing a flare up of allergic rhinitis. All such efforts should be documented in the claims file. If it is not possible to schedule the examination during a flare up, the reason must also be documented in the claims file. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should report whether there is 50 percent or greater obstruction of the nasal passage on both sides or complete obstruction on one side. The examiner should note the presence or absence of polyps. The examiner must provide reasons for any opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. Schedule the Veteran for a VA examination to assess the current severity of his service-connected status post repair of the right long and little fingers. All indicated tests and studies should be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the examination report or in an addendum. The examiner should report all manifestations of the disability of the right long and little fingers, including, scars, orthopedic and neurologic impairment. The ranges of motion of the fingers of the right hand should be reported in degrees. The examiner should also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner should express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare- ups, or pain. The examiner should report the size of any gap between the tip of the long finger and the proximal transverse crease of the palm, with the finger flexed to the extent possible. If ankylosis is present, the examiner should specify whether it is favorable or unfavorable. The examiner must provide reasons for any opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 5. The AOJ should review the examination reports to ensure that they contain the information requested in this remand and are otherwise complete. 6. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the 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. 2011). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs