Citation Nr: 1312675 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-15 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a headache disability. 2. Entitlement to service connection for a right wrist disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from September 1969 to May 1971, including combat service in the Republic of Vietnam and his decorations include the Purple Heart medal. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing has been associated with the claims file. The Board observes that, since the most recent adjudication of the Veteran's claims in a February 2010 statement of the case, additional VA treatment records have been associated with the Veteran's Virtual VA claims file. That evidence has not yet been considered by the RO, nor was it accompanied by a waiver of RO consideration. While the Board acknowledges that it has reviewed the newly submitted VA treatment records, it has done so solely for the purpose of granting or remanding the claims on appeal, which is not prejudicial to the Veteran. 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The issue of entitlement to service connection for a right wrist disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran's headache disorder was incurred in service. CONCLUSION OF LAW A headache disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), (b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS In this decision, the Board grants service connection for a headache disorder. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran served in combat and sustained a shrapnel wound to the head, as documented in his service treatment records. 38 U.S.C.A. § 1154(b). In addition, the medical evidence shows that he has been diagnosed as having headaches and he reports the onset of the condition following his combat-related head injury in service. Further, the Board finds that he is both competent to report experiencing headaches during and since serving in combat in Vietnam and that his account of having headaches since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his headaches became manifest during his combat service. See Reeves. In light of his in-service, combat-related head injury, the credible history of headaches in and since service, and the diagnosis of headaches, the Board finds that service connection for headaches is warranted because the disability had its onset in service. ORDER Service connection for a headache disorder is granted. REMAND The Veteran asserts that he has a current right wrist disability that is related to a shrapnel wound in service. He is competent to report an in-service shrapnel wound to the right wrist and, in light of the evidence that the Veteran engaged in combat, his lay statements are sufficient proof of in-service incurrence. Indeed, the Veteran's service treatment records show that he received other shrapnel wounds in service and, in May 1971, immediately upon separation from service, the Veteran filed an initial claim for mortar wounds to the hand, supporting his contention. The Veteran testified during a March 2011 Board hearing that he still has shrapnel in his right hand and wrist. He testified that, as a result of that shrapnel wound, he experiences numbness, pain, and stiffness in his right index finger, thumb, and wrist. Post-service VA treatment records dated in July 2011 also document the Veteran's complaint of right thumb and index finger pain since being wounded, presumably in service. VA has a duty to assist the Veteran in the development of the claim by conducting appropriate medical inquiry. Here, the Veteran has provided a competent account of relevant right wrist and hand symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the Veteran has reported a competent and credible account of receiving a shrapnel wound to the right wrist in service. However, he has not yet been afforded a VA examination to address the etiology of any right wrist disability. In light of the foregoing, the Board finds a remand for appropriate VA examination is necessary and the claim must be remanded. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes that there appear to be outstanding relevant private treatment records. Specifically, the Veteran testified during his March 2011 Board hearing that he received private treatment for his right wrist disability. VA is obligated to attempt to obtain and consider those records in adjudicating this appeal. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). As such, the Board has no discretion and must remand this appeal to attempt to obtain any outstanding records. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or who were contemporaneously informed, of his right hand or wrist symptomatology or diagnoses; and medical statements in support of his claim, including from his medical care provider(s). 2. Contact the Veteran and request him to identify all sources of right hand or wrist treatment, hospitalization, and examination from any VA or private facility since service. Thereafter, the RO should undertake appropriate efforts to obtain any indicated records. Should the Veteran provide VA with a release to obtain private records, then at least two attempts to obtain those records should be undertaken unless it is made evident by the first request that a second request would be futile in obtaining such records. All development efforts should be associated with the claims file, to include obtaining notation that no additional records are available on the Virtual VA system if VA treatment records are identified. 3. Then schedule the Veteran for appropriate VA examination to determine the nature, onset, and etiology of his claimed right wrist or hand condition. The claims folder should be made available to, and reviewed by the examiner, with such review noted in the provided examination report. The examiner should record the full history of the condition, including the Veteran's account of symptomatology. The examiner should note all right wrist and hand pathology found to be present, if any. Then, with regard to any diagnosed condition, the examiner should state the likelihood that the condition: (i) had its onset in service or within one year of separation; or (ii) is otherwise related to military service, to include a shrapnel wound to the right hand or wrist therein. The examination report must reflect the examiner's consideration and analysis of both the competent medical and lay evidence of record. All necessary testing should be completed with the relevant findings reported in detail. All provided opinions should be supported by a clearly stated rationale. 4. Then, readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs