Citation Nr: 1328919 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 05-35 425 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a headache disorder to include cluster headaches. 2. Entitlement to service connection for a cervical spine disorder to include degenerative disc disease and degenerative joint disease. 3. Entitlement to service connection for a lung disorder. 4. Entitlement to service connection for a skin disorder to include tinea pedis claimed as the result of herbicide exposure and/or an undiagnosed illness. 5. Entitlement to service connection for generalized muscle and joint pain claimed as the result of an undiagnosed illness. 6. Entitlement to service connection for a gastrointestinal disorder claimed as the result of an undiagnosed illness. 7. Entitlement to service connection for a sleep disorder to include sleep apnea claimed as the result of an undiagnosed illness. 8. Entitlement to service connection for a bilateral hand neurological disorder. 9. Entitlement to service connection for bilateral carpal tunnel syndrome (CTS). 10. Entitlement to an increased disability evaluation for the Veteran's low back disorder, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from September 1969 to September 1971; from December 1972 to August 1978; and from August 1991 to March 1992. The Veteran had additional duty with the Army Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the St. Petersburg, Florida, Regional Office (RO) which determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to tinea pedis; denied service connection for that disorder on the merits; determined that new and material evidence had not been received to reopen the Veteran's claims of entitlement to service connection for migraine headaches, a lung disorder, cervical spine degenerative disc disease, and "pathology for generalized muscle and joint pain;" denied service connection for bilateral hand neurological signs and nerve problems, post-operative right CTS residuals, a sleep disorder, and a gastrointestinal disorder; and denied an increased disability evaluation for the Veteran's low back pain with degenerative joint disease. In February 2012, the Board determined that new and material evidence had been received to reopen the Veteran's claims of entitlement to service connection for a headache disorder, a cervical spine disorder, a lung disorder, a skin disorder, and a generalized muscle and joint disorder and remanded both those issues and the remaining issues on appeal to the RO for additional action. The Board has reviewed both the physical claims files and the "Virtual VA" file so as to insure a total review of the evidence. The Board has reframed the issues of service connection for a headache disorder, a cervical spine disorder, a skin disorder, a sleep disorder, and CTS as entitlement to service connection for a headache disorder to include cluster headaches; a cervical spine disorder to include degenerative disc disease and degenerative joint disease; a skin disorder to include tinea pedis claimed as the result of herbicide exposure and/or an undiagnosed illness; a sleep disorder to include sleep apnea claimed as the result of an undiagnosed illness; and bilateral CTS in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (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 issues of service connection for a cervical spine disorder, a lung disorder, a skin disorder, generalized muscle and joint pain, a gastrointestinal disorder , a sleep disorder, a bilateral hand neurological disorder, and bilateral CTS and an increased evaluation for the Veteran's lumbar spine disorder are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. In a September 2012 written statement, the Veteran advanced contentions which may be reasonably construed as an informal application to reopen his claim of entitlement to service connection for rhinitis and informal claims for increased evaluations for his right knee internal derangement with a history of a Baker's cyst, left knee osteoarthritis, right lower extremity varicose veins, and left lower extremity varicose veins. The issues have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them. The issues are referred to the RO for appropriate action. FINDING OF FACT Cluster headaches were initially manifested during active service. CONCLUSION OF LAW Cluster headaches were incurred during 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 FINDING AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this decision, the Board grants service connection for cluster headaches. Therefore, no further discussion of VA's duties to notify and to assist is necessary. II. Service Connection The Veteran asserts that service connection for headaches is warranted as the claimed disability was initially manifested during active service and has continued until the present time. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R § 3.303(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The claimed disorder is not a "chronic disease" enumerated under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are not for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a); 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). The service treatment records reflect that the Veteran was repeatedly seen for headaches. Clinical documentation dated in May 1970 states that the Veteran presented a history of "nearly constant generalized headaches" over the preceding five months. An impression of "no evidence of organic neurological disease - question underlying large functional component" was advanced. Clinical documentation dated in October 1970 notes that the Veteran complained of severe bilateral headaches. A November 1970 mental health clinic evaluation states that the Veteran complained of tension headaches. The Veteran was diagnosed with cephalgia and a passive-aggressive personality disorder. At his June 1971 physical examination for service separation, the Veteran presented a history of "frequent or severe headaches." At a February 1975 physical examination for service entrance, the Veteran presented a history of "frequent or severe headaches" for which he took Valium. At a February 1992 physical examination for "Saudi Return," the Veteran presented a history of migraine headaches for which he took Percocet and Motrin. An August 1987 VA treatment record notes that the Veteran presented a history of migraine headaches. An impression of "low occipital headaches" was advanced. A November 1988 VA treatment record states that the Veteran presented a history of frequent migraine headaches. In July 1989, the Veteran sought service connection for migraine headaches. In a December 1989 written statement, the Veteran reported experiencing headaches "so severe [he was] unable to see, hear or talk." At a May 1990 VA examination for compensation purposes, the Veteran complained of migraine headaches. The evaluation did not address the Veteran's headaches. At a June 1995 VA examination for compensation purposes, the Veteran complained of headaches. In his October 2003 application to reopen his claim of service connection, the Veteran sought service connection for "headaches-migraine type-frequently." An October 2003 VA treatment record conveys that the Veteran complained of headaches which radiated from his neck to his temples. An assessment of recurrent headaches was advanced. A December 2003 VA evaluation states that the Veteran reported that he had been treated for chronic migraine headaches by both a neurologist and his primary care provider. A March 2012 neurological evaluation from D. Dondis, M.D., reports that the Veteran had been previously diagnosed with several headache disorders including migraine, atypical migraine, tension headache, and cluster headaches with trigeminal neuralgia. The doctor opined that the Veteran had "trigeminal or cluster headaches since his military service" which "can evolve to a repetitive or recurrent pattern as is this case." Recurrent headaches were manifested during active service and have persisted until the present time. Dr. Dondis opined that the Veteran's recurrent "trigeminal or cluster headaches" originated during active service. In the absence of competent evident to the contrary and upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for cluster headaches is now warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for cluster headaches is granted REMAND In September 2012, the Veteran submitted additional medical documentation including clinical documentation and statements from several physicians in support of his appeal. The Federal Circuit has invalidated the regulations which empowered the Board to consider additional evidence without prior RO review in the absence of a waiver of such review by the Veteran. Disabled American Veterans v. Sec'y of VA, 327 F.3d 1339, 1348 (Fed. Cir. 2003). In the December 2012 Informal Hearing Presentation, the accredited representative stated that the Veteran "declined to waive RO consideration" of the additional relevant evidence. In its February 2012 Remand instructions, the Board directed that the Veteran should be scheduled for VA evaluations which addressed the claimed disabilities and his service-connected lumbar disorder. VA attempted to schedule the requested VA evaluations by mailing notices to an address in Miami, Florida, and by telephone in February 2012 and March 2012 without success. In the December 2012 Informal Hearing Presentation, the accredited representative informed VA that the Veteran currently resided in Panama and "it is not clear whether he received the notice to report" for the requested evaluations. The accredited representative requested that the Veteran's appeal be remanded so that the Veteran could be rescheduled for the requested VA evaluations. As the Veteran did not receive notice of the scheduled VA examinations, appropriate action should be undertaken to both update the Veteran's address of record to reflect his current residence in Panama and to reschedule the requested VA evaluations. The report of an April 1993 VA examination for compensation purposes states that the Veteran reported having served in the Republic of Vietnam from 1970 to 1971 and participated in combat for 13 months. The Veteran's service personnel documentation and other evidence of his claimed presence in the Republic of Vietnam has not associated with the record. VA should obtain all relevant military records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to update the Veteran's address of record to reflect his address in the Republic of Panama. 2. Contact the National Personnel Record Center and/or the appropriate service entity and request that it forward the Veteran's complete service personnel records, including documentation as to his service in the Republic of Vietnam, if any, for incorporation into the record. 3. Schedule the Veteran for a VA orthopedic examination for compensation purposes in order to assist in determining the current nature and etiology of his cervical spine disability and his service-connected lumbar spine disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. 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 cervical spine disorder had its onset during active service or otherwise originated during active service. The examiner should further identify the limitation of activity imposed by the Veteran's lumbar spine disability with a full description of the effect of the disabilities upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. Determinations on whether the Veteran exhibits pain with use of his lumbar spine should be noted and described. If feasible, the determinations concerning pain, weakness and fatigability should be portrayed in terms of the degree of additional range of motion loss or ankylosis. If such a determination is not feasible, this should be stated for the record and the reasons provided. The examiner should express an opinion as to the impact of the Veteran's lumbar spine disability upon his vocational pursuits. All relevant medical records, including those in the claims folders, 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 is necessary and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for a VA pulmonary examination for compensation purposes in order to assist in determining the current nature and etiology of his claimed lung disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. 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 lung disorder had its onset during active service or otherwise originated during active service. All relevant medical records, including those in the claims folders, 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 is necessary and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Schedule the Veteran for a VA dermatological examination for compensation purposes in order to assist in determining the current nature and etiology of his skin disabilities. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should specifically state whether the Veteran's skin complaints are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. 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 skin disorder had its onset during active service; are etiologically related to his documented service in Southwest Asia and/or claimed service in the Republic of Vietnam; or otherwise originated during active service. All relevant medical records, including those in the claims folders, 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 is necessary and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Schedule the Veteran for a VA gastroenterological examination for compensation purposes in order to assist in determining the current nature and etiology of his claimed gastrointestinal disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should specifically state whether the Veteran's gastrointestinal complaints are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. 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 gastrointestinal disorder had its onset during active service; are etiologically related to his documented service in Southwest Asia; or otherwise originated during active service. All relevant medical records, including those in the claims folders, 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 is necessary and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 7. Schedule the Veteran for a VA sleep disorders examination for compensation purposes in order to assist in determining the current nature and etiology of his sleep apnea and any other identified sleep disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should specifically state whether the Veteran's sleep complaints are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that sleep apnea and/or any other identified sleep disorder had its onset during active service; is etiologically related to his documented service in Southwest Asia; or otherwise originated during active service. All relevant medical records, including those in the claims folders, 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 is necessary and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 8. Schedule the Veteran for a VA neurological examination for compensation purposes in order to assist in determining the current nature and etiology of his CTS and claimed bilateral hand neurological disorder and generalized muscle and joint pain. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should specifically state whether the Veteran's muscle and joint complaints are manifestations of an undiagnosed illness and/or a medically unexplained chronic multi-symptom illness. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that CTS and any other identified neurological disorder had its onset during active service; are etiologically related to his documented service in Southwest Asia; or otherwise originated during active service. All relevant medical records, including those in the claims folders, 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 is necessary and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 9. Then readjudicate the remaining issues on appeal. If any of the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claims for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran and his representative should be given the opportunity to respond to the SSOC. 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 these claims. See 38 C.F.R. § 3.655 (2012). These claims 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 Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs