Citation Nr: 1806034 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-15 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to a compensable rating for multiple fragment wounds of the right arm. 3. Entitlement to a compensable rating for multiple fragment wounds of the abdomen. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to August 1970, for which he received the Purple Heart Medal, among other service awards and decorations. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina, which denied service connection for headaches, and increased rating claims for residuals of right arm and abdomen wounds. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, his currently diagnosed headache disability is related to combat service. CONCLUSION OF LAW The criteria to establish service connection for a headache disability are met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.304(d), (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In light of the favorable action taken herein, the Board finds that further discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not required at this time. Analysis The Veteran asserts that his currently diagnosed headaches disability resulted from shrapnel wound injury he sustained during active duty service. The Veteran's service treatment records reveal that in December 1969, he sustained fragment wounds from an exploding concussion device. It was noted that the physical examination was limited to the wounded areas and revealed fragment wounds with metallic fragments imbedded within the skin on the right arm and anterior abdominal wall. There was no history of loss of consciousness or neurovascular injury, but the right tympanic membrane appeared to be mildly hemorrhagic. In a report of medical history dated in May 1970, the Veteran indicated that he suffered from frequent or severe headaches. The Veteran underwent a VA examination in August 2011, in which he reported gradual headaches with onset in 1970. The headaches were intermittent, and when he saw his physician he was told to just take Motrin or Tylenol. He stated that he was unable to take too much medication due to his stomach disabilities. The examiner noted that it seemed like his headaches were more frequent when he had stomach pain (the Veteran is service-connected for irritable bowel syndrome with chronic diarrhea). The examiner rendered a diagnosis of headaches, mixed type, predominantly migraines. Nevertheless, the examiner stated that no opinion was requested. Treatment notes from the Winston-Salem VA outpatient clinic dated from September 2011 to December 2011 show that during treatment for his service-connected posttraumatic stress disorder (PTSD), he had physical manifestations including tension headaches. In February 2012, the Veteran underwent an additional VA examination for his headaches. The examiner noted a diagnosis of headaches with an undetermined etiology. It was noted that the onset of the headaches was after a mortar round exploded about 10 feet from the Veteran. The Veteran stated that he self-treated his headaches over the years with over the counter medications, but stopped taking medications due to the side effects. Instead, he indicated that he stays in a dark room when he has headache attacks. Non-headache symptoms included nausea, vomiting, and sensitivity to light and sound. It was noted that the Veteran's headache symptoms were similar to migraine headaches. The examiner opined that the Veteran's headaches were less likely than not related to his in-service injury. The examiner's rationale was that there was lack of documented evidence to support a nexus between the onset of headaches secondary to blast injury in Vietnam and current headaches. Notably, in this case, the Veteran's DD-214 shows that the Veteran served during the Vietnam War as a rifleman with the Marine Corps for which he received, among other awards, a Purple Heart Medal, the Vietnam Service Medal with one star, Combat Action Ribbon, the Republic of Vietnam Gallantry Cross Unit Citation with Palm, the Republic of Vietnam Campaign Medal with device, and a Rifle Marksman Badge. Pursuant to 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d), for any Veteran who engaged in combat with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred or aggravated by such service, even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. In view of these awards, and the circumstances described by the Veteran surrounding the incident when a mortar round exploded 10 feet away from him, the Board finds that the Veteran is entitled to the combat presumption. Accordingly, the Board accepts as credible the Veteran's report of a headache that began at the time of his injury during his combat service in Vietnam. As noted above, although there is a negative VA nexus opinion, the Board assigns it no probative weight. The primary deficiency with the February 2012 VA opinion is that it did not adequately consider the Veteran's lay statements concerning incidents in service wherein he clearly sustained combat-related injuries capable of leading to his claimed headaches, specifically since he competently and credibly indicated that his headaches began after the mortar explosion, and continued ever since. The examiner did not address that during the Veteran's December 1979 hospitalization for multiple fragment wounds, evaluation of the right tympanic membrane showed that they were mildly hemorrhagic. The examiner also did not address that the Veteran, on his May 1970 Report of Medical History, reported having had severe and frequent headaches. Instead, the conclusory opinion merely stated that there is a lack of documentation showing a link between the current headaches and the in-service blast injury. This is an insufficient rationale for a negative opinion, especially in light of the fact that the Veteran did sustain injuries from a mortar blast during combat operations. The Board finds that the Veteran's assertions regarding the onset of his headaches and the circumstances leading to such headaches fall squarely within the "combat presumption," contained at 38 C.F.R. § 3.304(d). While the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, the Court in Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) held that the "Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms." In conclusion, the Veteran served in combat and his assertions are consistent with the circumstances, conditions, and hardships of that service. 38 U.S.C. § 1154(b). As such, VA must presume the occurrence of the in-service headaches. Indeed, as noted above, the Veteran reported months prior to service separation that he had experienced frequent and severe headaches during service, and the current medical evidence shows that the Veteran's head pain has been attributed to tension, migraine, and mixed-type headaches. Finally, the Board finds that he is both competent to report headache pain during and since serving in combat in Vietnam and that his account of having headaches since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his headache disability became manifest during his combat service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In light of his in-service experiences, the credible history of headaches in and since service, and the current diagnosis of a headache disability, the Board finds that service connection for headaches is warranted as being related to combat service. ORDER Service connection for headache disability is granted. REMAND Remand is necessary to provide the Veteran with a new VA examination in connection with his increased rating claims on appeal. In a November 2017 brief, the Veteran's representative requested that a new VA examination be conducted because, "has not been examined by VA for his right arm/abdominal fragment wounds since March 2013, nearly five years ago." The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95. Instead, remand is necessary due to the Veteran's challenge as to the adequacy of the March 2013 VA examination. Specifically, in his April 2014 VA Form 9, the Veteran asserted that the March 2013 examiner's notation that his scars were not visible and were not problematic, were not true. The Veteran indicated that he told the examiner that he had radiating pain in the location of his right arm wound and had almost constant problems with the area of the wound on his abdomen, but this is not reflected in the report. Accordingly, a remand is necessary in order to provide the Veteran with a new VA examination to determine the current severity of any current residuals of multiple fragment wounds of the abdomen and right arm. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. Ensure that all outstanding VA treatment notes are associated with the claims file. 2. Thereafter, provide the Veteran with an appropriate VA examination to assess the current severity of any residuals of multiple fragment wounds of the abdomen AND right arm. The claims file, and a copy of this remand, shall be made available to the examiner for review in conjunction with the examination. After a complete review of the claims file and a physical examination of the Veteran, the examiner is asked to: (a) Identify any current residuals of the in-service shrapnel wound injury to the abdomen and right arm, to include any scars. (b) Assess the severity and any functional impairment resulting from any identified residuals. In doing so please address the Veteran's lay assertions that he experiences radiating pain in the area of the wound on his right arm and constant problems with the area of the wound on his abdomen. The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of record, as necessary. If the examiner is unable to provide any opinion without resort to speculation, then the examiner should explain the reasons why an opinion cannot be given without resort to speculation. 3. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal. If any benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs