Citation Nr: 1340099 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-43 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for loss of nail, right pointer finger. 4. Entitlement to service connection for erectile dysfunction (ED). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from July 1984 to October 1984, December 2000 to November 2001, and October 2003 to February 2005, to include service in Bosnia and Southwest Asia. The Veteran was awarded the Combat Infantry Badge. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Little Rock, Arkansas, and St. Louis, Missouri. In a February 2008 rating decision, the RO in Little Rock, Arkansas, denied the claim for service connection for headaches. Thereafter, in a November 2008 rating decision, the same RO confirmed and continued the denial of service connection for headaches. In a December 2009 rating decision, the RO in St. Louis, Missouri, denied the claims for service connection for tinnitus, for loss of nail, right pointer finger, and for ED. In February 2012, the Veteran and his sister testified during a hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. The issues of entitlement to service connection for tinnitus, loss of nail, right pointer finger, and for ED are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has provided competent and credible lay descriptions of continuity and chronicity of symptoms of headaches, variously diagnosed as vascular and migraine, since his service discharge. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for migraine headaches has been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to notify and assist VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, and a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board has determined that service connection is warranted for migraine headaches. Therefore, no further discussion of VA's duty to notify and assist is warranted for this claim as any deficiency has been rendered moot. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101 , 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. 3.307, 3.309(a) (2013). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2013). Pursuant to 38 U.S.C.A. § 1154(b) (West 2002), with respect to combat veterans, "[VA] 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 and 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. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2013). The Court has further held, however, that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); Kessel v. West, 13 Vet. App. 9 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). Service personnel records in the claims file verify the Veteran's status as a combat veteran, specifically his receipt of the Combat Infantryman Badge (CIB). 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013). The Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was Infantryman for his last period of active service and heavy antiarmour weapons infantry for his other periods of active service. Service treatment records include a February 2005 report of medical assessment for separation. At that time, the examiner noted the Veteran's report of frequent headaches during deployment. The Veteran reported that he did not seek treatment. The plan was for him to follow-up at home station as needed. A January 2008 VA medical record shows that the Veteran reported that he began having daily headaches at the base of his head while in Iraq. Additional VA medical records reflect that the Veteran continuously reported chronic headaches. A February 2008 VA neurological examination report reflects that the Veteran was diagnosed with mixed and vascular headaches. No opinion as to etiology was provided. An August 2009 VA neurological examination report reflects that the Veteran related the onset of headaches in 2004 while stationed in Iraq which he attributes to noises and nearby explosions. He denied any head injury or head trauma during that period of time. He continues to have similar headaches with the same characteristics. The diagnostic impression was migraine headaches. The VA examiner opined that the Veteran's migraine headaches are not caused by the Veteran's PTSD. He stated that studies have shown some association, but the cause of migraine headaches are complex and believed to be a primary neuronal condition within the brain. Therefore, he could not relate the Veteran's migraine headaches as caused by his PTSD. An August 2010 VA examination report reflects that the Veteran stated he began having headaches while he was deployed and that they persisted after returning in 2005. The examiner noted that there was no documentation of the Veteran being treated or seeking treatment for headaches prior to 2008 when both VA clinic physicians and a VA examiner noted that the Veteran had had headaches since his return from deployment. The diagnosis was vascular headaches. The examiner discussed that the headaches the Veteran described in 2004 and 2005 and the headaches that he currently has are similar; however, in view of the lack of documentation of headaches and headache treatment prior to 2008, he could not say without speculation whether the current headaches developed during the Veteran's active service or within a year of it or not. In this case, none of the VA examiners have provided a nexus opinion relating the Veteran's current headaches disability to service. Despite the absence of a medical nexus opinion, the Board has heavily considered the Veteran's consistent reports of headaches, their onset, and his assertions concerning continuity of symptomatology since service. The Federal Circuit recently held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) that the Board errs when it suggests that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In his instance, the Board finds that the Veteran is competent to report that his headaches began in service. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). Moreover, the Board considers the statements of the Veteran be credible as they are facially plausible, internally consistent, and consistent with the other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Specifically, the Veteran's September 2005 service medical health assessment specifically shows that the Veteran reported having chronic headaches while deployed. Furthermore, the record contains medical evidence of headache complaints in January 2008, less than 3 years after discharge from active service, in which the Veteran related his headaches to his service in Iraq. The Veteran has continuously reported while seeking medical treatment and during VA examinations that his headaches symptoms first manifested while deployed to Iraq and have continued thereafter. Thus, the Board concludes that the competent lay evidence of record shows credible assertions as to the onset and continued struggle with headache symptoms after service. Significantly, moreover, there is no medical evidence or opinion to the contrary. In fact, the August 2010 VA examiner discussed that the headaches the Veteran described in 2004 and 2005 and the headaches that he currently has are similar. Certainly, then, resolving all reasonable doubt in favor of the Veteran, the evidence shows that it is as likely as not that the Veteran began experiencing headaches while in service, and that this condition persisted during the years since discharge, thus, service connection for migraine headaches is warranted. 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for migraine headaches is granted. REMAND As an initial matter, the Board notes that service personnel records show that the Veteran received the Combat Infantry Badge, which signifies that he engaged in combat with the enemy. VAOPGCPREC 12-99 (1999), 65 Fed. Reg. 6,257 (2000). Therefore, his account of noise exposure during service is credible and entirely consistent with the circumstances of his service as his account of the loss of the fingernail of the right pointer finger in combat. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). As a combat veteran, the Veteran is entitled to have his statements regarding some events in service accepted. Accordingly, the Board concedes his in-service noise exposure and that he sustained the loss of the fingernail on the right pointer finger in service. Furthermore, as tinnitus is a condition where lay observation has been found to be competent to establish the presence of the disability, the Veteran is competent to declare that he has tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Having determined that the Veteran was exposed to acoustic trauma in service and that he currently has tinnitus, the remaining question before the Board is whether there is nexus between his current tinnitus and service. On review, it is unclear whether the Veteran currently has tinnitus related to active service. Therefore, a medical opinion regarding an etiology of the Veteran's tinnitus is necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, since the Veteran is similarly capable of saying that he lost his fingernail in combat and that he has experienced discomfort in that finger ever since, an examination should also be provided to determine whether there is any current disability associated with the right pointer finger that is related to the loss of that fingernail during combat service. The Veteran also contends that his erectile dysfunction is secondary to medications he takes for his service-connected disabilities. The Board notes that, under 38 C.F.R. § 3.310(a) (2013), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown , 7 Vet. App. 439, 448 (1995). A VA medical opinion was obtained in August 2010, without an actual physical examination. At that time, the examiner noted that the Veteran was diagnosed with posttraumatic stress disorder and was treated with trazodone and bupropion. The examiner stated that neither of these medications had significant incidence of erectile dysfunction. He noted that the medications that the Veteran takes for his PTSD are not likely to be a cause of ED. Erectile dysfunction can be psychogenic, especially in relatively young men, but there is no clear-cut nexus between PTSD and erectile dysfunction. He could not say without speculation whether the Veteran's ED is related to his PTSD or the medications with which he has been treated. In this case, the Board finds that the August 2010 VA medical opinion is inadequate. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390 . In this regard, the Board notes that the August 2010 VA medical opinion was obtained without affording the Veteran's an examination. In this case, the Board finds that an actual examination might provide additional data for consideration. In addition, during the February 2012 Board hearing, the Veteran provided evidence that he was not only taking Trazadone and Bupropion, but also Prazonsin, Bardenafil, and Levitra. Hence, the Board finds that the Veteran should be afforded an additional VA examination to determine the nature and etiology of his ED. 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). Also, the claims file currently includes VA medical center (VAMC) treatment records dated through February 2010. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand, the RO should obtain and associate with the claims file all outstanding, pertinent VA medical records dated from February 2010 to the present Lastly, the Veteran should be properly notified of what evidence is needed to support his claim for secondary service connection under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with notice as to the evidence needed to support a claim for secondary service connection under the provisions of 38 C.F.R. § 3.310 . 2. Obtain all outstanding VA medical records from February 2010 to the present. All records or responses received should be associated with the claims file. 3. After completion of the above, schedule the Veteran for a VA examination, by an examiner with the appropriate expertise, to determine the nature and etiology of his tinnitus. The examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has tinnitus related to his active service. The designated VA compensation examiner must consider the combat presumption under § 1154(b) in offering the requested opinion. Specifically, that noise exposure in service is conceded. The examiner must also consider and discuss the Veteran's assertions of continuity of symptoms. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 4. Schedule the Veteran for another appropriate VA examination to determine whether there is any current disability associated with the right pointer finger that is related to the loss of that finger's fingernail during combat service. The examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current disorder associated with the right pointer finger that is related to the loss of that finger's fingernail during combat service. The designated VA compensation examiner must consider the combat presumption under § 1154(b) in offering the requested opinion. Specifically, that loss of a fingernail during combat is conceded. The examiner must also consider and discuss the Veteran's assertions of continuity of symptoms. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 5. Schedule the Veteran for a VA examination, by an examiner with the appropriate expertise, to determine the nature and etiology of his erectile dysfunction. In this regard, if examinations by both a VA psychiatrist and a VA genitourinary specialist is warranted to resolve the issue of etiology, then such examinations should be afforded the Veteran. The examiner(s) must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner(s) is requested to provide the following: (a) The examiner(s) should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is related to his active service. (b) The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is caused or aggravated his service-connected disabilities, including the medications used to treat those disorders. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In providing the above opinions, the examiner(s) is requested to reconcile his or her findings with August 2010 VA opinion already of record. The examiner should also discuss the Veteran's lay statements regarding the history and chronicity of symptomatology. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. It is noted that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. 6. After ensuring that all the requested development has been completed, readjudicate the claims for service connection for tinnitus and for erectile dysfunction. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs