Citation Nr: 1306720 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-36 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a headache disorder to include migraine. 2. Entitlement to service connection for a chronic bilateral eye disorder to include blurred vision. 3. Entitlement to service connection for meningitis residuals to include lower extremity numbness and pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from November 1983 to July 1992. She served in Iraq. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Waco, Texas, Regional Office (RO) which, in pertinent part, denied service connection for migraine, blurred vision, and meningitis residuals. In April 2010, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In June 2010, the Board remanded the Veteran's claims to the RO for further action. The Board has reviewed both the Veteran's physical claims file and her "Virtual VA" file so as to insure a total review of the evidence. The issue of service connection for meningitis residuals is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on her part. In June 2010, the Board referred the Veteran's claims for increased disability evaluations for her right lower extremity varicose veins, left lower extremity varicose veins, and lumbar strain to the RO for appropriate action. The record does not reflect that the issues have been adjudicated by the RO. Therefore, the Board again refers them to the RO for appropriate action. FINDINGS OF FACT 1. Migraine headaches were manifested during active service. 2. Chronic bilateral allergic conjunctivitis and bilateral pingueculae originated during active service. CONCLUSIONS OF LAW 1. Migraine headaches were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). 2. Chronic bilateral allergic conjunctivitis and bilateral pingueculae were incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must inform the claimant about (1) the information and evidence not of record that is necessary to substantiate the claim; (2) the information and evidence that VA will seek to provide; and (3) the information and evidence the claimant is expected to provide. In this decision, the Board grants the Veteran's claims of entitlement to service connection for migraine headaches and chronic bilateral allergic conjunctivitis and bilateral pingueculae. As such, no discussion of VA's duty to notify and to assist is necessary. II. Service Connection Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). 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) (2012). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A. Headaches The Veteran contends that her chronic headaches were initially manifested during active service secondary to meningitis. The Veteran's service treatment records reflect that she was seen for headaches. A January 1989 service treatment record conveys that the Veteran complained of headaches and a scintillating scotoma. At a March 2006 VA examination for compensation purposes, the Veteran complained of migraine since active service. The Veteran was diagnosed with "frequent migraine headaches." The examiner opined that: Headaches related to military duty because of time of onset clearly related to a more probable than not basis to service by definition because they occurred while in service and are documented in the record. At the April 2010 hearing before the undersigned Acting Veterans Law Judge sitting at the RO, the Veteran testified that she had chronic migraine headaches since active service. At the October 2010 VA examination for compensation purposes, the Veteran reported chronic migraine since active service. The examiner noted that the Veteran had a migrainous headache during active service and recurrent headaches thereafter. He observed further that the Veteran had given birth during active service. The physician commented that "it is not uncommon to find migraine headaches 'start' after childbirth in women." The Veteran has been diagnosed with chronic migraine headaches which became manifest during active service. In the absence of any competent evidence to the contrary, the Board concludes that service connection is warranted. B. Eye Disorder A December 1990 Army treatment record states that the Veteran complained of burning of the eyes. She reported that she had spilled pralidoxime chloride into her eyes. On examination, she exhibited bilateral conjunctival irritation. The report of the Veteran's May 1992 physical examination for service separation revealed no chronic eye disorder. A September 2005 letter from the Department of Defense to the Veteran indicates that her unit had been stationed near Khamisiyah, Iraq and had possibly been exposed to "very low levels of chemical warfare agents released demolition operations following the war." At the March 2006 VA eye examination for compensation purposes, the Veteran complained of blurred vision due to inservice chemical exposure. The examiner noted "no record of exposure to chemical agents in the record." The Veteran was diagnosed with "history of atropine spraying into the right eye in 1990 - no sequela noted." At the April 2010 hearing on appeal, the Veteran testified that she had experienced chronic eye problems since active service. At an October 2010 VA eye examination for compensation purposes, the Veteran presented a history of blurry vision since service separation. The Veteran was diagnosed with bilateral chronic allergic conjunctivitis and bilateral pingueculae. The examiner commented that the Veteran's conjunctivitis was "as likely as not to be related to military service if she worked outside a lot or in other areas of exposures to allergents" and her bilateral pingueculae "is due to [ultraviolet] damage and is as likely as not to be secondary to military service if worked outside a lot in the field." The Veteran was treated for bilateral conjunctival irritation after pralidoxime chloride was spilled into her eyes during active service. The Veteran was diagnosed with bilateral chronic allergic conjunctivitis and bilateral pingueculae secondary to presumed chemical and ultraviolet exposure at the most recent VA eye examination of record. Given these facts, the Board finds that the evidence is in at least equipoise as to whether the Veteran's chronic eye disabilities are etiologically related to her period of active service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for both bilateral chronic allergic conjunctivitis and bilateral pingueculae. ORDER Service connection for migraine headaches is granted. Service connection for bilateral chronic allergic conjunctivitis and bilateral pingueculae is granted. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. The report of an October 2010 VA neurological examination for compensation purposes and a July 2011 addendum thereto note that "there is no record which supports a history of meningitis in this patient." In March 2012, the Veteran submitted additional service treatment records. A November 1988 Army treatment record conveys that the birth of the Veteran's two month old daughter was induced secondary "to [the Veteran] having meningitis." VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the new inservice documentation of meningitis in approximately September 1988, the Board finds that an additional VA evaluation would be helpful in resolving the issues raised by the instant appeal. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Clinical documentation dated after July 2011 is not of record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide information as to all treatment of her claimed chronic meningitis residuals, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all pertinent records, including statements and treatment records, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after July 2011. 3. Then schedule the Veteran for a VA examination to address the current nature and etiology of her claimed chronic meningitis residuals. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should specifically state whether the Veteran has any chronic meningitis residuals. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified chronic meningitis had their onset during active service; are related to the Veteran's inservice 1988 episode of meningitis; or otherwise originated during active service. All relevant medical records, including those in the claims folder, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs