Citation Nr: 1316718 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 11-11 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a gland disorder, other than abscesses of the right sub-maxillary gland, to include as caused by exposure to ionizing radiation. (Please note, the issue of entitlement to a compensable disability rating for abscess of the right sub-maxillary gland is the subject of a separate decision.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In connection with his appeal, the Veteran testified at a videoconference hearing in April 2013 before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file. In July 2012, the Veteran submitted a supplemental claim for compensation for the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and anxiety. However, this issue has not yet 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 further appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As part of the duty to assist a Veteran in developing the facts and evidence concerning a service-connection claim, VA must provide an examination for a medical nexus opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which he qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with his service or a service-connected disability; but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The Veteran claims he has a gland disorder, in addition to his already service-connected abscess of his right sub-maxillary gland. He claims that the current symptoms of his gland disorder are difficulty swallowing, loss of taste, and mouth dryness. He alleges that his exposure to bombs during service caused his glands to swell, and he has been experiencing these symptoms since service. The record currently indicates that the Veteran was exposed to ionizing radiation in service in 1952. In the April 2011 VA examination, the examiner noted the Veteran has a diagnosis of status post remote excision of the right sub maxillary gland for an abscess, which occurred in June 1958. The examiner's medical opinion is not a model of clarity. The examiner initially indicates that the examination was to evaluate the current severity of the Veteran's service-connected status post remote excision of the right sub maxillary gland for an abscess, which is not the salient point of this Veteran's appeal. As noted above, the Veteran claims to have symptoms such as loss of taste, difficulty swallowing, and mouth dryness, which he claims are manifestations of a gland disorder that is related to his military service, to include his exposure to ionizing radiation. The April 2011 VA examiner did not adequately address these contentions. Consequently, the Board finds that this opinion is inadequate for adjudication purposes. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 312 (2007). With respect to his claim of entitlement to service connection for headaches, the Veteran testified that he was unloading ammunition when he was hit, fell of the truck, and hurt his head. He alleged that ever since this incident, he has been experiencing headaches. See Board Hearing Tr. at 15. In the case of any Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. The Veteran's service personnel records reflect that he participated in a conflict with enemy forces in Korea. Accordingly, the Board finds that the Veteran engaged in combat with the enemy during his service and that the provisions of 38 U.S.C.A. § 1154(b) are applicable in this case. The Court of Appeals for the Federal Circuit (Federal Circuit) has held that the presumption found in section 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In this case, the Board finds that the Veteran did experience headaches in service following his head injury in combat. Consequently, the Board finds the April 2011 VA examination inadequate as the examiner indicated the Veteran did not experience headaches in service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet.App. at 312. As such, a new VA examination and opinion is needed to address the etiology of the Veteran's current headache complaints. Additionally, on remand, records of VA treatment dated after March 2012 should be associated with the claims folders. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran's VA treatment records dated from March 2012 and thereafter should be obtained and associated with the claims folder. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of his gland disorder and headache disorder. He should be provided an appropriate amount of time to submit this lay evidence. 3. Then, return the claims file to the examiner who conducted the April 2011 VA examination, if still available. The examiner is asked to answer the following questions: a) Does the Veteran suffer from any other gland disorders, or residuals thereof, aside from service-connected abscess to the right sub-maxillary gland? Please specifically address the Veteran's allegations of current symptoms of mouth dryness, difficulty swallowing, and loss of taste. b) Is it at least as likely as not any identified gland disorder is related to or had its onset in service, to include exposure to ionizing radiation in 1952? If the April 2011 examiner is not available, arrange for an examination with another examiner. A clear rationale for all opinions is required. 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. With respect the claim of entitlement to service connection for headaches, the April 2011 examiner is asked to provide an addendum opinion as to whether it is at least as likely as not that the Veteran's current headaches are related to the in-service headaches following a combat-incurred head injury. For purposes of this opinion, the examiner must assume the Veteran experienced headaches in service even though they are not recorded in his service records. If the April 2011 examiner is not available, arrange for an examination with another examiner. A clear rationale for all opinions is required. 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. 5. Re-adjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC) and given a reasonable opportunity to respond. The Veteran 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). _________________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).