Citation Nr: 1317557 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 07-18 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an infection of the right ear. 2. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. 3. Entitlement to service connection for spina bifida. 4. Entitlement to service connection for the residuals of a back injury. 5. Entitlement to service connection for the residuals of a closed head injury. 6. Entitlement to service connection for migraine headaches. 7. Entitlement to service connection for cerebrovascular accidents with left hemiplegia, to include as secondary to migraine headaches. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from May 1974 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of May 2005 and July 2009 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. The psychiatric disorder claim on appeal was previously characterized as one solely for service connection for schizophrenia. In accordance with the United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it has been recharacterized to encompass all psychiatric disabilities diagnosed. Clemons, supra (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2012. A copy of the transcript of that hearing is of record. The issues of entitlement to service connection for spina bifida, the residuals of a back injury, the residuals of a closed head injury, migraine headaches, and cerebrovascular accidents with left hemiplegia, to include as secondary to migraine headaches, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In October 2011, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal in regard to the claim of entitlement to service connection for an infection of the right ear. 2. An acquired psychiatric disorder, to include schizophrenia and anxiety, was not shown during the Veteran's service or for many years thereafter and is not shown to be related to his service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for an infection of the right ear have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Service connection for an acquired psychiatric disorder, to include schizophrenia and anxiety, is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Infection of the Right Ear Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). By a rating decision, dated in July 2009, the RO denied the Veteran's claim of entitlement to service connection for an infection of the right ear. The Veteran perfected an appeal in November 2009 as to this issue. However, in a statement in support of claim (VA Form 21-4138), which was submitted at the time of the Veteran's October 2011 hearing at the RO before a local hearing officer, the Veteran stated that he wished to withdraw his appeal as to the issue of entitlement to service connection for an infection of the right ear. In light of the above, the Board recognizes that prior to the promulgation of a decision by the Board, the Veteran indicated that he wished to withdraw his appeal as to the issue of entitlement to service connection for an infection of the right ear. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to the issue for service connection for an infection of the right ear. Hence, the Board finds that the Veteran has withdrawn his claim as to this issue, and accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to service connection for an infection of the right ear, and it is dismissed. II. Acquired Psychiatric Disorder, to Include Schizophrenia A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in February 2005 and June 2007 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in February 2005 and June 2007 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the June 2007 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in February 2005, prior to the appealed from rating decision, along with the subsequent notice provided in June 2007, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in October 2011, December 2011, January 2012, and May 2012 supplemental statements of the case (SSOCs) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The evidence of record includes the Veteran's service treatment records and outpatient treatment records from the VA Medical Centers (VAMCs) in Dallas and Houston from July 1989 to May 2012. In a June 2010 Memorandum, the RO made a formal finding that the Veteran's outpatient treatment records from the Houston VAMC from 1976 to 1977 were unavailable for review. In a February 2011 Memorandum, the RO made a formal finding that outpatient treatment records from the VAMC in Cincinnati, Ohio were unavailable for review. The Cincinnati VAMC had informed the RO that they were unable to locate any records for the Veteran. In addition, the Veteran has authorized the release of treatment records from numerous private physicians. These records, however, are pertinent to his claim for service connection for the residuals of a back injury and are not pertinent to his claim for an acquired psychiatric disorder, to include schizophrenia. The Board recognizes that there is evidence in the record that shows that the Veteran has been awarded disability benefits from the Social Security Administration (SSA). In this regard, the Veteran has been advised by the RO of the type of evidence needed to substantiate his claim, including being informed to tell VA or give recent SSA determinations. The Board finds no indication that SSA records are relevant to the claim for service connection for an acquired psychiatric disorder, to include schizophrenia and anxiety, and it is not contended otherwise. In the August 2012 Travel Board hearing, the Veteran stated that he was receiving SSA disability benefits because of the strokes he had in 2000 and 2001. Thus, all identified treatment records are in the claims file. Given these considerations, any additional development 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 claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). With respect to an examination, the RO did not provide the Veteran with an examination regarding his claim for service connection for an acquired psychiatric disorder, to include schizophrenia and anxiety. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When considering whether these criteria are met, the Board will consider the lay evidence of record. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"'). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus). That notwithstanding, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. In this case, an examination is not warranted under 38 U.S.C.A. § 5103A(d) for the following reasons. There is medical evidence of diagnoses of psychiatric disorders. However prong 2 of the McLendon test is not met as the service treatment records show no psychiatric complaints. The Veteran has submitted no lay evidence of any in-service symptoms or treatment. In fact, as explained later in this decision, he has testified that he did not experience any psychiatric symptomatology during service. Moreover, prong 3 of the McLendon test is not met as there is no indication any current psychiatric disorder is related to service. There is no opinion of record, and the Veteran has offered no lay evidence of continuity of symptomatology. In other words, he has not alleged that he experienced any psychiatric symptoms during service or since service, and no such history is shown in his medical records. See Davidson, supra. Therefore an examination is not required. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. B. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to prevail on the issue of service connection, there must be competent and credible evidence of three things: (1) a current disability; (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Certain chronic diseases, to include psychoses, will be presumed to have been incurred in service if it had become manifest to a degree of 10 percent or more within one year of the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 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 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). C. Analysis The Veteran's service treatment records are negative for any complaints or findings of a psychiatric disability, to include schizophrenia and anxiety. The records show that in January 1975, the Veteran underwent a separation examination. At that time, in response to the question of whether he had ever had or if he currently had depression or excessive worry, or nervous trouble of any sort, he responded "no." The Veteran was clinically evaluated as "normal" for psychiatric purposes. VAMC outpatient treatment records, dated from July 1989 to November 2004, show that in October 1993, it was noted that the Veteran was a diagnosed schizophrenic. In November 1996, the Veteran sought treatment because he was scared he was going to kill his wife and children. In regard to the history of present illness, it was noted that at age 19, the Veteran started to hear "voices." It was also indicated that the Veteran had previous admissions at the VA for treatment of paranoid schizophrenia. Recently, the Veteran had stopped taking his medications. He had a history of alcohol abuse. Following the mental status evaluation, the Veteran was diagnosed with schizophrenia, paranoid type, relapse induced by noncompliance with medication. In December 1996, the Veteran filed a claim of entitlement to non-service-connected pension. At that time, he noted that he had mental health problems. In a January 1997 rating action, the RO granted his claim. In October 2004, the Veteran filed a claim of entitlement to service connection for schizophrenia. VAMC outpatient treatment records, dated from October 2001 to May 2012, show intermittent treatment for schizophrenia. In November 2001, it was noted that the Veteran had paranoid schizophrenia for several years. According to the records, in recent years, the Veteran had been treated for anxiety. In October 2011, a hearing was conducted at the RO before a local hearing officer. At that time, the Veteran stated that during service, he did not have any psychiatric symptoms. He denied hearing voices or "anything like that." When asked when his schizophrenia started, the Veteran responded that it was "a long time ago," but that he did not know "how long it's been." In August 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. At that time, he stated that he did not have any psychiatric problems while he was in the military. He also noted that he did not have any mental problems until a long time after service. The first evidence of record of a diagnosis of a psychiatric disability is in October 1993, over 17 years after the Veteran's separation from the military. The Veteran has made no allegation he experienced psychiatric symptoms during service or any continuity of symptoms thereafter. In this regard, the Board recognizes that in a November 1996 VAMC outpatient treatment record, it was noted that the Veteran started to hear "voices" at age 19, which would have been when he was in the military. However, in both the local hearing in October 2011 and the Travel Board hearing in August 2012, the Veteran specifically denied experiencing any psychiatric symptoms during service. In addition, in the October 2011 hearing, he specifically denied hearing any voices during service. The Board also notes that there is no evidence of a psychiatric disorder in service and psychosis is not shown to have been manifested in the postservice year. Moreover, although the evidence of record shows current treatment for schizophrenia and anxiety, such evidence does not relate the Veteran's schizophrenia and anxiety to his period of service, and there is no showing of continuity. The only evidence of record supporting the Veteran's claim is his own opinion that he currently has a psychiatric disability, to include schizophrenia and anxiety, that is related to his period of active service. However, the etiology of a mental disorder in any specific case is a complex medical question that requires medical knowledge/training. See Jandreau, supra. As a layperson, the Veteran lacks the training/experience to offer a probative opinion in the matter. The Veteran's lay contentions in this case are outweighed by the medical evidence which indicates that he did not receive treatment for any psychiatric disorder until over one decade after discharge from service. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Veteran's lay opinion that he has a psychiatric disability, to include schizophrenia and anxiety, that is related to his period of active service, is not competent evidence and cannot be considered as evidence favorable to the claim. In light of the above, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include schizophrenia and anxiety. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to service connection for an infection of the right ear is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and anxiety, is denied. REMAND In the August 2012 Travel Board hearing, the Veteran stated that he was receiving disability benefits from the SSA due to the strokes he experienced in 2000 and 2001. As the RO has not yet attempted to obtain any SSA disability determination and the underlying medical records, the Board finds that the RO must seek to obtain these records upon remand. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Tetro v. Gober, 14 Vet. App. 100, 110 (2000) (holding that VA has a duty to request information and pertinent records from other Federal agencies, when on notice that such information exists). With respect to the Veteran's claim for service connection for the residuals of a back injury, the Veteran maintains that during service, he injured his back while wrestling. He contends that he currently has a back disability that is related to his in-service back injury. The Veteran's service treatment records confirm that he injured his back during service. The records include a radiographic report which shows that in June 1974, the Veteran injured his back in the thoracic spine area while wrestling. X-rays of the Veteran's thoracic spine were reported to show a "slight [arrow pointing upward] kyphotic curve." There were no fractures. In August 1974, the Veteran was treated for complaints of back pain for two or three days. The Veteran had been lifting weights when his back started to hurt. It was noted that the Veteran initially injured his back approximately 40 days ago and since then, he had been having trouble with his back. The physical examination showed that the right scapula area was sensitive to touch and there was point tenderness and swelling in the area. There was also decreased range of motion. No diagnosis was provided and he was given an analgesic balm. In January 1975, the Veteran underwent a separation examination. At that time, he denied recurrent back pain. The Veteran's spine and other musculoskeletal system were clinically evaluated as "normal." The evidence of record shows that the Veteran currently has a back disability. Private medical records from Z.K., M.D., and S.F., M.D., show that in February 2010, the Veteran was diagnosed with lumbar stenosis and lumbosacral spondylosis. In July 2009, the Veteran underwent a VA examination. In the examination report, the examiner discussed the Veteran's in-service back injury and subsequent complaints of pain. Following the physical examination, the diagnosis was lumbar spine facet syndrome. The examiner opined that the Veteran's current back disability was not related to his period of active service. However, in providing a rationale for his opinion, the examiner only referred to the Veteran's August 1974 treatment for complaints of pain, and he did not discuss the Veteran's initial back injury in June 1974 and whether there was a relationship between the current back disability and the in-service back injury. Thus, the Board finds that a new VA examination, as specified in greater detail below, should be performed. See 38 C.F.R. § 3.159. The Veteran is claiming service connection for spina bifida. A review of the service treatment records reflects that spina bifida was not noted on enlistment examination in May 1974. Indeed, physical examination of the Veteran's spine at that time was normal. When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness does not apply to congenital defects, such as spina bifida; however, the presumption will apply if the congenital condition is not noted at entry. Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). The Board notes that since spina bifida was not shown at the time of enlistment, the presumption of soundness applies as to the condition. If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin, 22 Vet. App. at 397 (citing Wagner, 370 F.3d at 1096) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See 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)). The clear and unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 1991)). If a veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (noting that such a finding establishes the second element of service connection). However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a veteran must nonetheless establish that a current disability is related to the in-service injury or disease. Gilbert, 26 Vet. App. 48 (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.")). The Veteran also contends that when he injured his back during service, he also injured his head. In the August 2012 Travel Board hearing, he stated that while he was wrestling, he was picked up and "body slammed." He reported that he injured his back and head at the same time. According to the Veteran, due to his head injury, he developed migraine headaches. He maintains that after his discharge, he continued to experience chronic migraine headaches. The Veteran further notes that in April 2000 and November 2001, he had cerebrovascular accidents which resulted in left hemiplegia. He contends that his strokes were related to his migraine headaches. While the Veteran's service treatment records document that in June 1974, he injured his back while wrestling, the records are negative for any evidence showing that he also injured his head at that time. However, the Veteran is competent as a layperson to report that on which he has personal knowledge, which would include the claimed in-service head injury. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, the Board accepts as true that the Veteran injured his head during service. In this case, the evidence of record shows that the Veteran has been currently diagnosed with migraine headaches. Therefore, given that the Veteran injured his head during service, and in light of the evidence showing that he currently has migraine headaches, the Board is of the opinion that a VA examination, as specified in greater detail below, should be performed in order to determine whether the Veteran currently has any residuals of his in-service head injury, and to determine the nature and etiology of the diagnosed migraine headaches, to include whether they are residuals of the in-service head injury. If the migraine headaches are related to the Veteran's period of active service, then it must be determined if the Veteran's strokes were caused or aggravated by his migraine headaches. See Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of any decision(s) regarding the Veteran's claim for disability benefits, as well as any medical records in its possession. A response, negative or positive, must be associated with the claims file. 2. The RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded the following examinations: A. An orthopedic examination to ascertain the nature and etiology of any back disability and whether the Veteran has spina bifida. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner should specifically review the July 2009 VA examination report. All necessary special studies or tests are to be accomplished, to include x-rays if deemed necessary by the examiner. After a review of the examination findings and the entire evidence of record, the examiner should render an opinion on the following: (i) Does the Veteran have a current back disability? (ii) If so, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability, to include lumbar stenosis, lumbosacral spondylosis, and/or lumbar spine facet syndrome, is related to the Veteran's period of military service, to include his in-service back injury as documented in the Veteran's service treatment records? (iii) Does the Veteran have spina bifida? (iv) If so, is there clear and unmistakable evidence that spina bifida preexisted service? If is there clear and unmistakable evidence (2) that the disorder did not increase in severity during service or (3) that any increase was due to the natural progress of the disease. (v) The examiner must comment on the significance of the Veteran's June 1974 x-ray report which showed a slight kyphotic curve. Did the Veteran have kyphosis? If so, was the kyphosis aggravated by the in-service back injury? The physician is advised that the clear and unmistakable evidence standard is an onerous one and means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. A complete rationale for any opinion expressed should be included in the examination report. B. A VA neurological examination to ascertain whether the Veteran has any residuals of an in-service head injury, and to ascertain the nature and etiology of any migraine headaches and cerebrovascular accidents. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must review all of the evidence of record. All necessary special studies or tests are to be accomplished. After a review of the examination findings and the entire evidence of record, the examiner should render an opinion on the following: (i) Does the Veteran currently have any residuals of his in-service head injury? [Although the Veteran's service treatment records are negative for any findings of a head injury, the examiner must accept as true that the Veteran injured his head in June 1974 when he injured his back while wrestling.] (ii) Is it at least as likely as not (e.g., a 50 percent or greater probability) that any currently diagnosed migraine headaches are related to the Veteran's period of military service, to include his in-service head injury? (iii) If, and only if, the Veteran's migraine headaches are linked to his period of active service, then is it at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran's April 2000 and November 2001 cerebrovascular accidents were caused or worsened by his migraine headaches? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A complete rationale for all opinions expressed must be provided. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs