Citation Nr: 1313732 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-23 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES Entitlement to service connection for headaches; a cavernous sinus tumor, claimed as a brain tumor; and a heart disorder. WITNESSES AT HEARING ON APPEAL Appellant & D.M. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The appellant served in the Oklahoma Army National Guard on active duty for training (ACDUTRA) from May 28, 1984, to July 25, 1984, and from May 27, 1985, to June 20, 1985, with prior inactive duty training (INACDUTRA or IAD) totaling one year, one month, and twenty-one days. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This matter was previously before the Board in March 2011 and, most recently, in August 2012, when it was remanded to the VA's Appeals Management Center (AMC) in Washington, DC, for additional development. Following the AMC's attempts to complete the requested actions, the case was returned to the Board for further review. FINDING OF FACT A preponderance of the evidence is against the service onset or aggravation of claimed headaches, a sinus or brain tumor, or a heart disorder. CONCLUSION OF LAW Headaches, a tumor of the sinuses or brain, or a heart disorder were not incurred in or aggravated by ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101, 1131, 5103, 5103A. 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes at the outset that the appellant was incorrectly identified as a Veteran in its prior remands. The Board regrets this error, noting that review of service department records, including specifically service personnel records, now indicates that the appellant served only on ACDUTRA for brief periods during 1984 and 1985, with prior INACDUTRA totaling one year, one month, and twenty-one days. Remand Compliance As indicated above, this matter was previously remanded by the Board in 2011 and 2012 in order to accomplish certain development. All of the actions previously sought by the Board through its prior development requests as to the matters herein addressed on their merits now appear to have been completed as directed, and it is of note that the appellant does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist Before addressing the merits of the claims on appeal, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of a November 2007 letter from the RO to the appellant, addressing the various claims advanced. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini, supra. Here, full VCAA notice occurred prior to the RO's initial adjudicatory action in January 2008, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by or on behalf of the appellant, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the appellant. VA has also provided assistance to the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the appellant's service treatment and personnel records, in addition to a various medical examination and treatment reports compiled by VA and non-VA sources during postservice years. Also, the appellant has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claims herein addressed on their merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that VA has afforded the appellant one or more VA medical examinations and obtained VA medical opinions as to service nexus in order to ascertain the nature and etiology of the disabilities in question. The reports from those examinations/opinions, and the record as a whole, are found to be sufficiently detailed as to permit fair and equitable consideration of the merits of the issues presented. As such, further development action relative to the disabilities herein at issue is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty while in active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Active military, naval, or air service includes any ACDUTRA during which the individual concerned was disabled or died from injury or disease incurred in or aggravated in line of duty. 38 U.S.C.A. §§ 101(22); 38 C.F.R. § 3.6(a) and (c). It also includes any INACDUTRA during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(23) and (24); 38 C.F.R. § 3.6(a) and (d). The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2); see also 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" is defined to include active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); see also 38 C.F.R. § 3.6(a). The term "active duty for training" includes, inter alia, certain full time duty in the Army National Guard. 38 U.S.C.A. § 101(22); see also 38 C.F.R. § 3.6(c)(3). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C.A. § 101(22-4) ; see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim" (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Therefore, the appellant is not entitled to a presumption of sound condition at entrance onto a period of ACDUTRA or INACDUTRA, or to a presumption of aggravation during such period where evidence shows an increase in severity of a preexisting disease during such a period, or to a presumption of service incurrence or aggravation for certain diseases, including an organic disease of the nervous system or cardiovascular disease, which manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service. In other words, 38 C.F.R. §§ 3.307, 3.309 (presumption of service incurrence), 3.306 (presumption of aggravation), and 38 U.S.C.A. §§ 1111, 1131 (presumption of soundness) are not for application in the context of this appeal. In accordance with 38 U.S.C.A. § 106 (West 2002), VA has the authority to determine whether the appellant was in active service, including ACDUTRA or INACDUTRA, at the time a claimed injury occurred. VA regulations governing requirements for establishing service for VA benefits purposes require military service department verification of the appellant's service. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203 (2012). "[O]nly official service department records can establish if and when an individual was serving on active duty, [ACDUTRA], or [INACDUTRA]." Cahall v. Brown, 7 Vet. App. 232, 237 (1994). The Board observes that the appellant does not have active service, but rather served on ADCUTRA and INACDUTRA. Accordingly, he is not considered a "Veteran", and thus, he is not afforded certain presumptions which are enumerated above. Nonetheless, the appellant's claims may prevail if the evidence shows that (1) he has a current disability that was caused or aggravated by an injury or disease incurred during a period of ACDUTRA or (2) he has a current disability that was caused or aggravated by an injury incurred during a period of INACDUTRA. If service connection for either disorder is granted, the period of service corresponding to the incurred disease and/or injury will become "active service", and the appellant will be considered a "Veteran" for that period of service only. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There is a current disability for VA purposes when an appellant is shown to have that disability at the time his or her claim was filed or during the pendency of that claim, even if that disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). The nexus between service and the current disability can be satisfied by medical or lay evidence as to the existence of continuous symptoms and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). Service department records indicate that in 1984, the appellant was ordered to eight weeks of ACDUTRA, which began on May 28, 1984. An enlistment medical examination in February 1984 revealed, in pertinent part, that the appellant had migraine headaches, but had not undergone treatment therefor. Service medical personnel determined that he was fit for enlistment. On May 27, 1985, he was returned to ACDUTRA and when examined at that time, a systolic murmur over the entire precordium was clinically identified and, per his history, was associated with chest pain and shortness of breath. He was referred for further medical evaluation with a provisional diagnosis of rule out valvular heart disease. The service department physician to whom he was referred noted that the appellant was undergoing advanced infantry training and that he had been experiencing chest pain on exertion for two to three months with headaches and shortness of breath. Clinically, a systolic ejection murmur was appreciated; an electrocardiogram revealed sinus bradycardia and there was indicated to be left ventricular hypertrophy by voltage criteria only. A chest x-ray and echocardiogram were within normal limits. An exercise stress test was attempted for a period of fifteen minutes and thirty seconds, but discontinued because of headaches. On June 7, 1985, a Physical Evaluation Board suspended the appellant from further training pending a Chapter 2 Medical Board on the basis of headaches. An Entrance Physical Standards Board examination on the same date yielded diagnoses of chest pain with no evidence of ischemic heart disease and migraine headaches and a physical profile Of "P3, Code D-No mandatory strenuous physical activity." In was the Board's determination that the appellant be discharged or separated, to which the appellant concurred, as did the Unit Commander and the Discharge Authority. Medical data developed postservice indicates various treatment, including that beginning in the 2000s, was received by the appellant. That treatment was for a left cavernous sinus schwanomma of the fifth nerve, headaches, uncontrolled hypertension, chest pain requiring use of nitroglycerine, trigeminal neuralgia, dyslipidemia, and hyperlipidemia. Testimony from the appellant and his friend whom he met in or about 2006 was received at a Board hearing conducted in June 2010. That testimony and other statements of record were to the effect that the appellant's headaches and chest pain were first present after he was exposed to tear gas during a Mission Oriented Protective Posture (MOPP) training exercise occurring in basic training and that his headaches were worse during his second period of ACDUTRA, leading to his discharge from the National Guard. The sinus or brain tumors which were initially present after service were noted by the appellant as being directly the result of his inservice tear gas exposure. VA medical examinations afforded the appellant in April 2011 yielded findings leading to entry of diagnoses of postoperative residuals of a schwannoma resection with pain and facial numbness; no cardiac diagnosis with normal electrocardiogram and no residuals of chest pain from 1985, but with notation of left ventricular hypertrophy; and tension headaches. The VA examiner opined that it was less likely than not that the Veteran's headaches increased in severity during service, noting that they were present at service entrance and did not progress or require preventative or continuous medication. No evidence of schwannoma was indicated and left-sided VI and V2 trigeminal neuralgia with residual pain and numbness were found by the VA examiner to be unrelated to, caused by, or aggravated by military service, including tear gas exposure during MOPP training, with verbatim citation to an online medical research service entitled UptoDate. Supplementary medical opinion from the VA examiner of April 2011 was obtained in September 2012. At that time, the VA examiner indicated that it was less likely as not that any current cardiovascular disorder of the appellant was caused by or the result of military service or tear gas exposure during MOPP training. The rationale therefor was that chest pains were noted on examination on May 28, 1985, and that the electrocardiogram was negative for any findings of a cardiac disorder. His release from service was on the basis that he failed to meet the medical fitness standards and no cardiac disorder was diagnosed during the 24 days of service that followed. Medical evidence was noted by the VA examiner not to support hypertension or hyperlipidemia as a result of or progression from exposure to tear gas. The VA examiner further opined in September 2012 that it was less likely as not that migraine headaches increased in severity during the appellant's periods of service in 1984 and 1985. In support thereof, the VA examiner noted that migraine headaches existed prior to service and that service treatment records were silent for evaluation, treatment, or pharmacotherapy for headaches in service. Regarding the claimed tumors of the brain or sinuses, the VA examiner indicated that the appellant's brain tumor (schwannoma) and residuals of resection were less likely as not caused by or the result of military service and exposure to tear gas during MOPP training. The noted rationale was that service treatment records were silent for any diagnosis or treatment for a brain tumor in service. The Veteran alleges that he was exposed in service to tear gas when undergoing basic training and the record does not indicate otherwise or contradict the appellant's account thereof. That notwithstanding, the appellant and his friend report that his claimed headaches, tumors of the sinuses or brain, and heart disorder were incurred or aggravated in service as a result of that tear gas exposure. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the occurrence of the event and what he observed initially and thereafter, the linkage of his tear gas exposure and the onset or aggravation of his headaches, tumors, and a heart disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Here, there is no indication that the appellant or his friend, D.M., has the medical training or experience as to render competent his opinions regarding the effects of inservice tear gas exposure and no medical professional provides any finding or opinion as to the service incurrence or aggravation of any claimed disability. Moreover, D.M. by the appellant's own testimony was not acquainted with him prior to 2006 and, thus, D.M.'s ability to identify a nexus of the claimed disorders to service is compromised as he was unavailable to observe the appellant's health status prior to 2006. This negatively impacts the probative value to be accorded D.M.'s testimony. The Veteran has testified that his headaches and other claimed disorders were not present until such time as he underwent tear gas exposure during basic training in 1984. Yet, the medical examination performed in February 1984 in connection with his entry onto ACDUTRA in May 1984 indicated that migraine headaches were present and that there was a history of frequent or severe headaches. His allegation that his headaches were first present only after his tear gas exposure during ACDUTRA in 1984 is clearly inconsistent with the history and finding of headaches on the service department medical examination in February 1984, and to that extent, the Board finds the raised allegation to lack credibility. Also, the record does not substantiate the appellant's alternative allegations that any claimed disorder underwent inservice aggravation, given the absence of any inservice treatment for any such disability during the period of ACDUTRA in 1984 and the showing of chest pain, heart murmur, and headaches on or about the date of entry onto ACDUTRA during 1985. In all, the record indicates fails to indicate that the appellant was subject to any injury while on INACDUTRA that led to any of his claimed disorders. While the occurrence of inservice tear gas exposure during basic training in 1984 is conceded, the appellant's headaches are shown to have preexisted each period of ACDUTRA and no inservice aggravation thereof is adequately documented. Chest pain and a systolic murmur were initially noted at or about the time of the appellant's entry onto ACDUTRA in 1985, without a showing of aggravation of either during that period. No other heart disorder is shown in service, as the sinus bradycardia and left ventricular hypertrophy were but abnormal findings on laboratory evaluations, without a showing of underlying chronic disablement then or later, and any heart disorders shown initially many years after service are in no way linked to service by any medical professional. See 61 Fed. Reg. 20440, 20445 (May 7, 1996); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). A tumor of the brain or sinuses is not shown in service or for years thereafter and competent, probative evidence linking inservice tear gas exposure to their onset is lacking. It, too, is significant that the record is devoid of any finding or opinion from any medical professional as to the service incurrence or aggravation of any of the disorders in question and that the only medical professional to have addressed the dispositive issues in this case has furnished medical opinions contraindicating entitlement of the appellant to the benefits sought by this appeal. On the basis of the foregoing, the Board finds that a preponderance of the evidence is against entitlement to service connection for headaches, any tumor of the sinuses or brain, and a heart disorder. To that end, service connection for each claimed disorder must be denied. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE). ORDER Service connection for headaches, a tumor of the brain and/or sinuses, and a heart disorder is denied. ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs