Citation Nr: 1238136 Decision Date: 11/07/12 Archive Date: 11/16/12 DOCKET NO. 08-11 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for chronic headaches. 2. Entitlement to service connection for a skin condition. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2007 (skin) and April 2008 (headaches) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was brought before the Board in February 2011, at which time the claims were remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. The issue of entitlement to service connection for a skin condition 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. The VA will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran's chronic headaches have not been medically attributed to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for chronic have not been met. 38 U.S.C.A. §§ 1110 and 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Assist and Notify VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice requirements were met in this case by a pre-adjudication letter sent to the Veteran in March 2008. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. The Veteran previously indicated he had obtained treatment for his headaches at the VA Medical Center (VAMC) in Dallas, Texas in 1970 or 1971. The Veteran later clarified, in a June 2009 statement, that the treatment was actually received in 1973. He attached treatment records from August 1973 to this 2009 statement. Nevertheless, within the Board's prior February 2011 Remand, VA was directed to obtain VAMC records from Dallas, Texas from 1970 or 1971. The remand directive specifically indicated, "a negative response must be provided if records are not available." In April 2011, the VA in fact requested the VAMC in Dallas, Texas to provide treatment records for the Veteran's headaches from the facility from 1970 to 1971. If records did not exist or were no longer available, the VAMC was asked to provide a negative response. The VAMC responded by providing all treatment records for the Veteran's headaches dated in 1973. The VAMC did not specifically provide a "negative" response with regard to 1970 to 1971 records. Again, the Veteran clarified in a June 2009 statement that he did not actually seek formal treatment for his headaches in 1970 or 1971. Rather, he first sought treatment at the VAMC in Dallas, Texas for his headaches in 1973. Although the VAMC in Dallas, Texas did not follow the letter of the remand directive by the Board insofar as it did not provide a negative response specific to the 1970 to 1971 records, the Board finds substantial compliance occurred. The VA requested records from 1970 to 1971, and the VAMC provided all available records from the relevant time frame, to the extent they existed. The Veteran himself has indicated records from 1970 to 1971 do not exist. The Veteran has also at no time referenced any other outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The Board finds that VA has substantially satisfied the duty to assist the Veteran obtain these VAMC records and substantially complied with the Board's prior Remand directives. In the circumstances of this case, additional efforts to obtain a "negative response" from the VAMC in Dallas, Texas where the Veteran has already confirmed no such treatment was sought, would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Veteran was afforded a VA examination in March 2011 and an addendum was also provided in April 2012 after 1973 records were associated with the claims folder. The combination of the opinions reached in the examination and addendum are adequate and based on thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Thus, the Board finds that VA has satisfied the duty to assist the Veteran and the Board may proceed to consider the merits of the claims. Service Connection (Chronic Headaches) In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran claims he has suffered with chronic headaches since returning from Vietnam. He indicates while on active duty he was hit in the face by a Howitzer canister and has suffered with chronic headaches since. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991) (lay assertion cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [the witness's] experience;" witness not competent to describe motive because testimony too much like psychoanalysis, for which witness not qualified). Service treatment records indicate the Veteran was only specifically seen with complaints of headaches in November 1967. At that time, he had a four to five day history of headaches, fever, chills, and lightheadedness. Malaria was suspected, but clinically ruled out. Other than this acute illness, the Veteran's service treatment records are silent as to any complaints, treatment or diagnosis of headaches or any other neurological abnormality. It is noteworthy, however, that the Veteran's service treatment records do confirm various head injuries. In August 1967 the Veteran was treated for a laceration on the frontal region of his scalp after being hit by a canister during a fire mission. The laceration required three silk sutures, but the Veteran did not complain of headaches at that time or thereafter. In April 1968 and February 1969 the Veteran was treated for contusions of the left eye. In February 1969, the records specifically indicate the Veteran was struck while boxing. Again, however, the Veteran did not complain of headaches at that time or thereafter. Indeed, the Veteran's May 1969 separation examination was entirely silent as to any complaints or diagnoses related to headaches. The Veteran, again, claims he suffered with chronic headaches since returning from Vietnam. Headaches involve symptoms readily observable to a lay person. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). "Lay 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). After service, however, the Veteran did not seek treatment for headaches until August 1973, over four years later. At that time, the Veteran indicated he had recurrent headaches for approximately one year, worsened over the last two months with a history of trauma. The Veteran was referred for a neurological consultation. The neurologist noted a laceration in the outer edge of the Veteran's left eyebrow from a recent trauma. The Veteran denied any loss of consciousness, but noted pain. The neurological examination was negative and indeed, the neurologist noted "no neurological problem here at all." The Veteran returned six days later indicating no headaches whatsoever. Skull x-rays at that time were negative. Aside from the August 1973 treatment, the claims folder shows no treatment or complaints of headaches for decades. Recent treatment records from 2007 to 2011, indicate complaints of chronic headaches with sporadic treatment. These records further note the Veteran's self-reported history of headaches since 1970 and his self-reported description of a head injury in the military when he was hit in the head with a Howitzer canister. Aside from these notations, the VA outpatient treatment records do not include any opinion with regard to etiology. In fact, the headaches are described as "unknown etiology." In June 2009, one VA physician noted the Veteran indicated he had once been told he had an "inflamed optic nerve," but no such opinion was actually made at that time. The Veteran was afforded a VA examination in March 2011 where the examiner diagnosed the Veteran with chronic daily headaches. The examiner noted the Veteran's in-service treatment for headaches, but found the treatment associated with his acute febrile illness versus incurrence of a chronic condition. The examiner also noted the Veteran's head injury, but found no records supporting a traumatic brain injury or incurrence of chronic headaches as a result of the head injury. Indeed, the examiner noted the Veteran's 1969 separation examination showed a normal neurological examination. Based on these facts, the examiner opined that it was "unlikely" that the Veteran's current chronic daily headaches are etiologically related to his military service. After reviewing the August 1973 VAMC treatment records, the examiner further provided an addendum opinion in April 2012. The examiner continued the opinion that the Veteran's headaches were "less likely than not" incurred in or caused by his military service. As a rationale, the examiner noted the Veteran was treated for headaches in August 1973, but at that time the neurology consult at that time found "no neurologic problem here at all." The Veteran only reported a history of headaches of one year, which still dates the onset of his chronic headaches several years after separation from his military service. The Board finds the VA examiner's opinion and addendum opinion persuasive. The opinions are based on a thorough physical examination and a complete review of the claims folder, to include the Veteran's contentions. Despite the Veteran's description of symptoms through the years, the examiner found it unlikely his chronic headaches are related to his military service in light of the medical evidence. In short, service treatment records indicate treatment for headaches associated with acute febrile illness, which resolved prior to separation from the military. After service, the first evidence of headaches was years later noted with post-service trauma. No medical professional has ever linked the Veteran's headaches with his military service, and indeed there are medical opinions to the contrary. The Board finds the medical evidence adequately addressed the Veteran's lay statements and reported symptoms through the years. Accordingly, the Board finds the medical evidence of record more persuasive than the Veteran's lay statements. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for chronic headaches is not warranted. ORDER Entitlement to service connection for chronic headaches is denied. REMAND The Veteran claims to have chronic skin conditions as a result of his military service. The claim is complicated because, as noted in the Board's prior remand, the Veteran was found to have tinea cruris of the buttocks on his August 1966 entrance examination into the military. Aside from this one condition diagnosed on entrance, the Veteran was also treated for eczematoid dryness of the buttocks in February 1967 and a lesion on his penis in July 1968 (venereal disease was specifically ruled out). After service, the Veteran has been treated for and diagnosed with many other skin conditions, to include tinea cruris, tinea corporis, onychomycosis, fungal infection in the groin area, hyperpigmented patches on the buttocks, and a rash around the umbilicus. VA outpatient treatment records indicate the Veteran complains of rashes since Vietnam. See, e.g. VA outpatient treatment record February 2009. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease (1) existed before acceptance and enrollment and (2) was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Here, the Veteran's August 1966 military entrance examination notes one skin abnormality: tinea cruris of the buttocks. With regard to that one skin condition, and only that one skin condition, the Veteran is not entitled to the presumption of soundness. With regard to any and all other skin conditions the Veteran has been diagnosed with since August 1966, however, the presumption of soundness attaches. If a pre-existing disorder is noted upon entry into service (i.e., tinea cruris of the buttocks), the Veteran cannot bring a claim for service connection for that disorder, but he may bring a claim for service-connected aggravation of that disorder. See Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). When no pre-existing condition is noted upon entry into service (i.e., all other skin diagnoses), however, the Veteran is presumed to have been in sound condition upon entry and the burden falls on the government to rebut the presumption of soundness. Wagner v. Prinicipi, 370 F.3d 1089 (Fed. Cir. 2004). Rebutting the presumption of soundness requires the VA show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. Id. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). When the Board last remanded the claim it was in part to obtain a VA examination to ascertain whether the Veteran's current skin diagnoses are of the same disease as noted on entrance to service; if so, whether the current diagnoses aggravated beyond the natural progression due to service; and if not, whether the current diagnoses had its onset during service. The Veteran was afforded a VA examination in March 2011 where the examiner diagnosed the Veteran with tinea cruris and onychomycosis. With regard to etiology, the examiner merely addressed the Veteran's tinea cruris opining it was of the same disease as pre-existed service and was not aggravated therein. The examiner, however, did not render a nexus opinion with regard to onychomycosis nor did the examiner address any of the other skin conditions found in the VA outpatient treatment records. For these reasons, the VA examination of record is inadequate, and a new VA examination is warranted. In other words, while the Veteran's tinea cruris of the buttocks pre-existed service by virtue of being found on entrance examination into the military, the presumption of soundness attaches as to any and all other skin related diagnoses. In light of the fact that the Veteran has skin conditions with varying diagnoses and affecting various body regions, a new VA examination is necessary to clarify etiology. VA must also take this opportunity to obtain recent VA outpatient treatment records from July 2009 to the present. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and provide release forms for any and all private medical providers who have treated him for skin complaints since 2009; thereafter, request those records, explaining that actual medical records, as opposed to summaries, are needed. The Veteran's medical treatment records from July 2009 to the present from all VA providers must be obtained. All efforts to obtain identified records should be fully documented, and VA facilities must provide a negative response if records are not available. 2. After the above records are obtained, to the extent available, schedule the Veteran for a new VA dermatological examination to determine the current nature and likely etiology of any and all skin conditions found. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner's attention is specifically directed to the Veteran's August 1966 enlistment examination noting tinea cruris of the buttocks, a February 1967 examination report noting eczematoid dryness of the buttocks, a July 1968 treatment record for a lesion on penis, and post-service treatment records noting various diagnoses of tinea cruris, groin rash, umbilical rash since service, onychomycosis, hyperpigmentation, and tinea corporis. The examiner should conduct a thorough examination and provide a diagnosis for each and every skin condition found. Based on examination findings and a review of the record, the examiner must answer the following questions: (a) As to each skin diagnosis rendered, is the tinea cruris of the buttocks noted on entrance to service the same disease as to the skin condition following service? (1) If the answer is yes, is it at least as likely as not (50 percent probability) that the skin disability that pre-existed entrance into service was aggravated to a permanent degree during service beyond that which would have been expected given the normal progression of the disability? (2) If the answer is no, proceed to (b). (b) As to each skin diagnosis rendered that is not of the same disease noted on entrance to service (i.e., tinea cruris of the buttocks): (1) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had this specific skin diagnosis prior to his entry onto active duty? (2) If the answer to (b)(1) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing condition was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (3) If the answer to either (b)(1) or (b)(2) is no, is it at least as likely as not (50 percent probability) that the Veteran's skin condition had its onset in service? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the above is complete, readjudicate the Veteran's issue remaining on appeal. If the claim remains denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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 2002). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs