Citation Nr: 1805265 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-12 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for asthma. 3. Entitlement to service connection for non-specific headaches. REPRESENTATION Veteran represented by: Mississippi State Veterans Affairs Board WITNESSES AT HEARING ON APPEAL The Veteran and The Veteran's Wife ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from July 1970 to March 1972. These matters come before the Board of Veteran's Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2017, the Veteran testified at a hearing (video conference) at the RO before the undersigned Veterans Law Judge (VLJ). Hearing transcripts have been associated with the record. The issue of entitlement to service connection for pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's non-specific headaches clearly and unmistakably existed prior to his period of active duty service, and clear and unmistakable evidence demonstrates that the disability was not aggravated beyond the natural progression of the disease during service. CONCLUSION OF LAW The service connection criteria for non-specific headaches have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for non-specific headaches based on his active service in the United States Army from July 1970 to March 1972. Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a) (2017). Direct service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In cases where the presumption of soundness does not apply, the presumption of aggravation may apply where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. To rebut the presumption of aggravation, there must be clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran was afforded a VA examination in January 2013. The examiner diagnosed the Veteran with migraine headaches. Thereby, the first criteria of service connection has been met. However with regards to the in service element, the Veteran is not entitled to the presumption of soundness because headaches were "noted" on the August 1969 service entrance examination. Thereby, the question becomes whether the Veteran's headaches increased in severity beyond the natural progression of the disability. Here, the evidence supports the Veteran's headaches increased in severity during the Veteran's service, as evidenced by the Veteran's July 2017 Board hearing testimony. The Veteran testified that during service his headaches increased from once every three months to about twice a month, or twice per week when he was shooting guns. Given the Veteran's credible testimony, the presumption of aggravation has been met. The presumption may only be rebutted by clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). As the January 2013 examiner noted, there is little evidence in service treatment records (STRs). Further, the Veteran's own account of events in and after service show no evidence that there could have been aggravation of the Veteran's headaches. While STRs noted one treatment for a headache in October 1970, the January 2013 examiner noted the Veteran has reported that his headaches have become less frequent has he ages and he denied experiencing any other symptoms with his headaches. Thus, given that the Veteran's headaches have improved since service, the Board finds that the evidence clearly and unmistakably shows that the Veteran's headaches were not aggraved beyond the natural progress of the condition. Accordingly, the Board finds that the claim of entitlement to service connection for headaches must be denied. In reaching this conclusion, the applicability of the benefit-of-the-doubt doctrine has been considered. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) ; 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for non-specific headaches is denied. REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claims for bilateral pes planus and asthma so that every possible consideration is afforded. In a VA examination dated January 2013, the Veteran was noted to have a diagnosis of bilateral pes planus which was first diagnosed while the Veteran was in high school. The examiner opined the pes planus pre-existed military service and has not been aggravated beyond natural progression, because the Veteran has never sought medical care for his pes planus and reported obtained relief by wearing specific shoes. However, the Board finds this rationale inadequate to address whether the Veteran's active service did not aggravate his pes planus beyond the natural progression. In December 2012, the Veteran was afforded a VA medical examination to determine whether his preexisting asthma worsened during his period of service. The examiner concluded that the Veteran's file lacks evidence of chronicity and continuity of care for an ongoing asthma condition. Further, the examiner noted the Veteran's recent pulmonary function tests suggest a restricted disease and asthma is an obstructive disease. The examiner could not, therefore, find any evidence of worsening of the Veteran's asthma during his period of active service. However, the Board finds this rationale inadequate to assess whether the Veteran's active service aggravated his asthma beyond the natural progression of the condition. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records from the VA Medical Center and any other VA facility identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. After completing the above directive, the Veteran should be afforded a VA examination with the appropriate examiner to ascertain the nature and etiology of the Veteran's pes planus. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records, post-service medical records, and lay statements, and elicit a full medical history of the condition from the Veteran. The examiner is asked to address whether the Veteran's lay reports of in-service exacerbation of pes planus, as noted by the Veteran at the January 2013 VA examination and pain during service, represent an increase in the severity consistent with the natural progression of the disorder, or whether the increase represented "aggravation" of the disorder beyond its natural progression. In doing so, the examiner should note that the Board finds the Veteran competent and credible in his testimony that he suffered foot pain in service, moreso than prior to service. Thereby, the question is not whether there was an increase in his condition, but rather, whether there is clear and unmistakable evidence that any increase in the Veteran's pes planus was due to the natural progress of the condition (or was not aggravated beyond its natural progression by active service). In responding to this question, the examiner is advised that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. 3. After completing the first directive above, the Veteran should be afforded a VA examination with the appropriate examiner to ascertain the nature and etiology of the Veteran's asthma. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records, post-service medical records, and lay statements, and elicit a full medical history of the condition from the Veteran. The examiner is asked to address whether the Veteran's lay reports of in-service exacerbation of asthma, as reported at the July 2017 Board hearing, represent an increase in the severity consistent with the natural progression of the disorder, or whether the increase represented "aggravation" of the disorder beyond its natural progression. In doing so, the examiner should note that the Board finds the Veteran competent and credible in his testimony that he was exposed to gun residue in service that made it difficult for him to breathe. Thereby, the question is not whether there was an increase in his condition, but rather, whether there is clear and unmistakable evidence that any increase in the Veteran's athma was due to the natural progress of the condition (or was not aggravated beyond its natural progression by active service). In responding to this question, the examiner is advised that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the 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. §§ 5109B, 7112. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs