Citation Nr: 1757599 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 16-00 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for residuals associated with facial injuries, status-post surgery. 3. Entitlement to a compensable initial disability rating for tension headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from July 1955 through March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The issue of the Veteran's entitlement to service connection for residuals associated with facial injuries, status-post surgery, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has essential hypertension that was not incurred during active duty service, did not result from an in-service injury or event, was not manifest to a compensable degree within one year from his separation from service, and was not secondary to service-connected disabilities. 2. For all periods relevant to this appeal, the Veteran has experienced tension headaches that occur three or four times a week with prostrating attacks occurring more than once every two months. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for a 30 percent initial disability rating, and no higher, for the Veteran's tension headaches are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, VA's duty to notify was satisfied by a July 2014 letter to the Veteran. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also met its duty to assist the Veteran by obtaining all identified and available treatment records and evidence. II. Service Connection for Hypertension The Veteran asserts entitlement to service connection for hypertension. In that regard, he suggests in his August 2014 Notice of Disagreement that his hypertension may be secondary to his service-connected disabilities. The Board observes that service connection is in effect for the Veteran for major depressive disorder (rated 70 percent disabling), tinea versicolor (assigned a non-compensable disability rating), and tension headaches (also assigned a non-compensable disability rating). Service connection is granted generally if the evidence shows that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires competent evidence of three essential elements: (1) a current disability; (2) 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) (2017). Service connection for certain listed chronic diseases, including cardiovascular-renal diseases such as hypertension, may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service if such disability becomes manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through an evidentiary showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b) (2017). Service connection may also be granted for a disease that is first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). Post-service VA treatment records in the claims file show that the Veteran was diagnosed initially with hypertension in March 2010, nearly 50 years after the Veteran was separated from service. Although the records show that he has been followed medically for essential hypertension since that time, the evidence does not show that the Veteran's hypertension is related in any way to his active duty service or his service-connected disabilities. The Veteran's service treatment records reflect no evidence of any hypertension or blood pressure abnormalities during the Veteran's active duty service. In that regard, blood pressure readings taken during a June 1955 enlistment examination, December 1957 re-enlistment examination, and January 1961 separation examination were all normal. Heart and vascular examinations were also normal. The service treatment records also reflect no evidence of any complaints, treatment, or findings that suggest the onset of hypertension during the Veteran's active duty service. Although the VA treatment records note essential hypertension as an ongoing medical problem for the Veteran, those records contain no opinions as to when the hypertension began. Similarly, they contain no opinions or findings that even suggest that the hypertension is related in any way to the Veteran's active duty service or service-connected major depressive disorder, tinea versicolor, or tension headaches. The only opinion in the record that suggests any sort of relationship between the Veteran's hypertension and his active duty service or service-connected disabilities is the Veteran's own lay assertion. Questions as to the onset and etiology of hypertension are complex medical questions that depend upon the application of learned medical principles and are not susceptible to being explained by mere lay observation of symptomatology. Where the Veteran has no medical training or experience, he is not competent to provide a probative opinion as to whether his hypertension was caused or aggravated by any of his service-connected disabilities. Indeed, the Board reiterates that there is simply no evidence in the record that lends any credence to such a theory. Under the circumstances, the Board does not assign any probative weight to the Veteran's lay assertions concerning the etiology of his hypertension. The Board is mindful that the Veteran has not been afforded a VA examination for his hypertension. Regardless, where there is simply no competent medical evidence in the record that even suggests that the Veteran's hypertension might be related etiologically to his active duty service or service-connected disabilities, there is no evidentiary basis in the record that necessitates such an examination. Rather, the existing evidence in the record is sufficient to permit the Board to conclude that it is unlikely that the Veteran's hypertension is related in any way to his active duty service or service-connected disabilities. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating the circumstances under which a VA examination is required). The preponderance of the evidence shows that the Veteran's hypertension was not sustained during his active duty service, was not manifest to a compensable degree within one year from his separation from service, and was not caused or aggravated by any of his service-connected disabilities. As such, the Veteran is not entitled to service connection for hypertension. III. Initial Disability Rating for Tension Headaches Service connection for tension headaches was granted to the Veteran, effective from September 26, 2013. A non-compensable initial disability rating was assigned. The Veteran asserts that he is entitled to a compensable disability rating for his tension headaches. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the disability rating being appealed is the initial disability rating that was assigned with a grant of service connection, the entire appeal period is for consideration. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged disability ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's tension headaches have been rated pursuant to the criteria under 38 C.F.R. § 4.124a, DC 8100, which pertains to migraine headaches, but is also used commonly to evaluate disabilities due to other types of headaches. Under DC 8100, headaches with less frequent attacks are assigned a non-compensable disability rating. Where the evidence shows that the headaches occur on average once every two months over the last several months with characteristic prostrating attacks, a 10 percent disability rating is assigned. Where headaches occur with characteristic prostrating attacks on an average of once a month over the last several months, a 30 percent disability rating is appropriate. Migraine headaches with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8100 (2017). The rating criteria do not define the term "prostrating." According to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." Essentially the same definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), which defines "prostration" as "extreme exhaustion or powerlessness." Guided by the foregoing regulation and definitions, the Board turns to the relevant evidence. Records for VA treatment received by the Veteran during the appeal period document complaints of ongoing and chronic headaches. They do not, however, express any information as to the frequency or severity of the Veteran's headaches. During a January 2014 VA examination, the Veteran reported that he was experiencing three or four headaches a week with each episode lasting for periods of up to 24 hours. The Veteran reported also that his headaches were accompanied by light sensitivity, nausea, and vision changes. He stated that he had prostrating attacks more than once every two months. Still, he denied that his headaches had ever had any impact on his work activities in the past. Based on the stated frequency of prostrating events, the criteria for a 30 percent initial disability rating for the Veteran's tension headaches are met under DC 8100. Although the Veteran reports frequently occurring episodes, which is consistent with a higher 50 percent disability rating, there is nothing in the evidence that suggests that those episodes are frequently prostrating or productive of economic inadaptability. As noted, the Veteran has reported that prostrating attacks occur more often than once every two months. Still, he does not report frequent prostration. Also, given his denial that his headaches impacted his work activities, the evidence does not seem to suggest that the Veteran's headaches have been productive of economic inadaptability. Under the circumstances, the criteria for a 50 percent initial disability rating under DC 8100 are not met. The Veteran is entitled to a 30 percent initial disability rating, and no higher, for his tension headaches. To that extent, this appeal is granted. ORDER Service connection for hypertension is denied. A 30 percent initial disability rating for tension headaches is granted, subject to the laws and regulations governing the payment of monetary VA benefits. REMAND In relation to his claim for service connection for residuals associated with facial injuries, status-post surgery, the Veteran has asserted in his claim submissions and during VA examinations conducted in 2013 and 2014 that he sustained severe facial injuries in an assault on him that occurred in 1960 while he was in civilian police custody in Amarillo, Texas. According to the Veteran, his injuries required him to receive treatment at the Amarillo, Texas prison. Such treatment reportedly included multiple surgeries to repair structural damage to his face. During VA treatment in September 2013, he reported also that he was hospitalized for mental treatment at Amarillo Air Force Base, apparently to treat mental health symptoms associated with the reported assault. Initially, the Board observes that the Veteran's service personnel records have not been obtained. Given the Veteran's assertions and the nature of the in-service events reported by him, it is likely that his service personnel records would contain evidence of the assault on the Veteran in 1960 and the attending circumstances. Given the same, VA should also undertake efforts to obtain the Veteran's service personnel records. 38 C.F.R. § 3.159(c)(2) (2017). Also, there is no indication in the record that VA has made any effort to contact appropriate agencies in the Amarillo, Texas police department to obtain records related to the Veteran's 1960 assault and medical treatment rendered to the Veteran during his period of incarceration. VA should also make such efforts at this time. 38 C.F.R. § 3.159(c)(1) (2017). Finally, although the claims file contains copies of the Veteran's service treatment records and physical examinations, records pertaining to mental health treatment received by the Veteran during service are not included. VA should make efforts to obtain those records from the appropriate agency. 38 C.F.R. § 3.159 (c)(2) (2017). Also, in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for his facial injuries since December 2015. VA must then also make efforts to obtain any additional treatment records that are identified by the Veteran. 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should be asked whether he has additional evidence pertaining to his facial injuries, and if so, he should be given assistance in obtaining it. Relevant VA treatment records dated from December 2015 through the present should be associated with the record. If such records are not available, such unavailability should be documented in the record. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. Obtain the Veteran's service personnel records and records pertaining to any mental health treatment/hospitalization received at Amarillo Air Force Base in connection with his 1960 assault. If such records are not available, such unavailability should be documented in the record. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 3. Obtain from the police department in Amarillo, Texas copies of police reports that are related to the Veteran's arrest in 1960 and records pertaining to his incarceration, assault in jail, and medical treatment rendered for injuries sustained in the assault. If such records are not available, such unavailability should be documented in the record. The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 4. After completion of the above development, the issue on appeal should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs