Citation Nr: 1805227 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-27 291A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to service connection for headaches, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and L. F., Observer ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran had active service from September 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In September 2015, the Board remanded this matter to provide the Veteran a hearing. In July 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board Hearing sitting at the RO in New Orleans, Louisiana. In July 2017 the Board remanded this matter for a VA examination. As will be discussed below, the Board remands this matter once again for additional development and adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Introduction, in September 2017 the Board remanded this matter for a VA examination and opinion. Accordingly, the Veteran was afforded an examination in October 2017. The VA examiner diagnosed the Veteran with migraines, including migraine variants, and opined that the Veteran's headaches were less likely than not incurred in or caused by the headaches during service, to include his fall while in Korea and his in-service exposure to asbestos. The Board finds that the VA examiner did not provide an adequate rationale to support of opinion. The VA examiner stated that "there are no pertinent medical records of complaints, diagnosis, or treatment for headaches during the Veteran's active service." The VA examiner further stated that there is no objective medical evidence in the file to support headaches during active service, to support a fall with a head injury in service, or to support exposure to asbestos in service. Primarily, lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Additionally, although service treatment records are to be taken into consideration and reviewed by examiners, the absence of documented treatment in service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, as noted in the Board's previous remand, the Veteran's service treatment records have been determined to be unavailable. In cases where service treatment records are unavailable, the Board is under a "heightened duty to consider and discuss the evidence of record and supply well-reasoned bases for its decision as a consequence of the missing [service treatment records]." Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Therefore, upon remand, the examiner is directed to consider the evidence of record, to include the Veteran's statements. The Veteran is to be viewed as a reliable historian as to his service and his report of his activities in furtherance of his perceived disability, as the Veteran is competent to testify to an event or injury he experienced in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the VA examiner's rationale improperly relies on the absence of in-service records, and a remand for an addendum opinion is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request additional information from the Veteran regarding the barracks, names and locations, where he asserts he was exposed to asbestos during service. Take appropriate action to verify the Veteran's claimed in-service asbestos exposure while working as a laundryman in the barracks. If the claimed asbestosis exposure cannot be verified, a written statement to that effect should be prepared and incorporated into the record. 2. Obtain any relevant and outstanding VA treatment records. Should they exist, associate them with the electronic claims file. 3. Thereafter, return the claims file to the October 2017 VA examiner who performed the VA examination of the Veteran's headache disability, or if the examiner is unavailable, to another suitably qualified examiner. The VA examiner is to provide an addendum VA medical opinion regarding the etiology of the claimed headache disability, to include as due to the Veteran's fall in service and asserted exposure to asbestos in the barracks. If it is determined that another examination is needed to provide the required opinions, the Veteran must be afforded the appropriate VA examination. The examiner must note that the claims file was reviewed. After reviewing the claims, the examiner should opine as the following: (a) Is at least as likely as not (a fifty percent probability or greater) that the Veteran's headaches are related to his active duty service, to include his asserted exposure to asbestos in service while working as a laundryman in the barracks? See July 2016 hearing transcript. (b) Is at least as likely as not (a fifty percent probability or greater) that the Veteran's headaches are related to his active duty service, to include his fall while serving in Korea? See July 2016 hearing transcript. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in furtherance of his perceived disability. See Jandreau, 492 F.3d at 1377. In cases where service treatment records are unavailable, such as this instant case, the Board is under a "heightened duty to consider and discuss the evidence of record and supply well-reasoned bases for its decision as a consequence of the missing [service treatment records]." Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently headache disability. To that end, in rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran's credible account of his in-service injury, in which he fell in Korea and became unconscious for 10 to 15 minutes with bleeding out of his ear and hospitalization for a few weeks thereafter. Please note that the Veteran asserts headaches since his service with a current knot on the back of his head noted to be visible as a "little protrusion." See July 2016 hearing transcript. A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Following completion of the above directives, review the claims file to ensure compliance, including that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response, and return the claims folder 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).