Citation Nr: 18153408 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 13-35 185 DATE: November 27, 2018 REFERRED ISSUE The issue of entitlement to service connection for chronic sinusitis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). ORDER Entitlement to service connection for arteriovenous malformation with repair is denied. Entitlement to service connection for an eye disability, to include as due to arteriovenous malformation with repair, is denied. Entitlement to service connection for cephalgia, to include as due to arteriovenous malformation with repair, is denied. REMAND Entitlement to service connection for a gastrointestinal disability is remanded. FINDINGS OF FACT 1. The Veteran’s arteriovenous malformation is a congenital defect not subject to, or aggravated by, a superimposed disease or injury during service. 2. The preponderance of the evidence is against finding that the Veteran has an eye disability incurred in or caused by military service. 3. The preponderance of the evidence is against finding that the Veteran has a chronic headache disability incurred in or caused by military service, and demonstrates the Veteran’s current headaches are residuals of arteriovenous malformation surgery, a nonservice-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arteriovenous malformation with repair are not met. 38 U.S.C. §§ 1131, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (c) (2017). 2. The criteria for entitlement to service connection for an eye disability, to include as due to arteriovenous malformation repair, are not met. 38 U.S.C. §§ 1131, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (c), 3.310 (2017). 3. The criteria for entitlement to service connection for cephalgia, to include as due to arteriovenous malformation repair, are not met. 38 U.S.C. §§ 1131, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (c), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service between September 1976 and March 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction currently resides with the RO in St. Petersburg, Florida. The Veteran appeared before the undersigned Veteran’s Law Judge during a VA Central Office hearing in June 2014. A transcript of the hearing is associated with the claims file. The Board previously remanded these matters in June 2015 and October 2017. A review of the record shows substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Veteran filed a claim for service connection for disabilities resulting from an arteriovenous malformation surgery, the Board has recharacterized the Veteran’s claim more broadly in the manner indicated above. Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, and 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In June 2015, the Board remanded these matters for further development, including a VA examination with a neurologist, obtaining VA treatment records, and acquiring records from the Social Security Administration. Thereafter, VA received the indicated records and provided a VA examination in September 2015; however, such examination was not performed by a neurologist. The RO ultimately procured an opinion from a neurologist in December 2016. In October 2017, the Board remanded the claim for an addendum opinion from the neurologist. However, the RO procured an addendum opinion from a VA physician, not the neurologist. A VA examination or opinion may be provided by anyone with the requisite education, training, or experience to offer medical diagnoses, statements or opinions. 38 C.F.R. § 3.159 (a)(1); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The evidence does not suggest that the special expertise of a neurologist is required for an adequate opinion. Therefore, VA has demonstrated substantial compliance with the remand directives. Stegall, 11 Vet. App. at 271; D’Aries v. Peake, 22 Vet. App. 97 (2008) (substantial, not strict compliance with remand directives, is required). In October 2018, the Veteran’s representative raised the possibility of a deficient record because he could not locate a transcript of the June 2014 hearing in the electronic record. The Board has found the transcript in the electronic claims file, and will consider the evidence presented therein when making its decision. Service Connection – Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation during service of a preexisting injury or disease. 38 U.S.C. §§ 1110, 1131. To establish service connection for a disability on a direct-incurrence basis, a veteran must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (c). The presumption of soundness does not apply to congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will also be service-connected. 38 C.F.R. § 3.310 (b). Service Connection – Arteriovenous Malformation with Repair The Veteran seeks entitlement to service connection for the residuals of an arteriovenous malformation with surgical repair. Private medical records show that the Veteran was diagnosed with a cerebellar bleed with arteriovenous malformation in October 2006. She had surgery to evacuate the cerebella hematoma and resect the arteriovenous malformation. Service treatment records show that the Veteran complained of headaches periodically during her military service. For example, in March 1981, the Veteran complained of a right-side headache that had persisted off and on for a month. The clinician noted a family history “Brain Tumor – Blood Clots” and referred the Veteran for further evaluation. In April 1981, a clinician diagnosed “migraines,” but after obtaining X-rays, he indicated maxillary sinusitis. The Veteran sought frequent treatment for sinusitis during military service. The Veterans enlistment and separation examinations found normal neurological functioning. Private medical records indicate that the Veteran continued to experience headaches after military service. In August 2003, the Veteran reported headaches, and having had a computed tomography (CT) scan in 1998, with negative results. The Veteran had a VA neurology consultation in January 2011. The Veteran reported pressure in her head with daily episodes of nausea and vomiting after her surgery. She experienced a new type of headache after surgery, manifested by pressure in the frontal area, around the ears, and towards the back of the head. The Veteran stated that she used to have migraine headaches of a different quality, located in the front of her head and behind her eyes. The Veteran denied any double vision, blurry vision, or visual phenomena, and reported experiencing a few headaches per month. The physician, Dr. J.T., indicated that the Veteran’s current headaches were related to the sequela of arteriovenous malformation and the resulting surgery. The Veteran had a VA examination in March 2011. The examiner noted that the Veteran’s reports of headaches in service appeared to be associated with sinusitis. The examiner opined that arteriovenous malformation was not caused by or worsened beyond its natural progression by military service, and that cephalgia (headaches) secondary to arteriovenous malformation was also not related to service. He did not provide rationale to support his findings. The Veteran submitted a private medical opinion from Dr. N.G.P. in September 2011. Dr. N.G.P. noted the Veteran developed headaches which were present during her active service. He stated that the headaches “were diagnosed as ‘migraine headaches’, but were in fact related to an arterial malformation…which subsequently ruptured (hemorrhaged) in October of 2006.” He opined that, had an MRI been obtained while she was with her military physician, the arteriovenous malformation would have been easily diagnosed and would have required treatment at that time. Dr. N.G.P. did not cite any evidence to support his assertions, or specify what treatment could have been provided to the Veteran’s arteriovenous malformation during military service. The Veteran and her representative appeared at a Board hearing in June 2014. The Veteran testified, among other things, that she experienced headaches during her military service, which were diagnosed as sinus headaches for which she was prescribed medication. She suggested that the military doctors failed to detect her arteriovenous malformation, which led to its eruption and resultant complications. She continued to experience headaches after military service. The Veteran had a VA examination in September 2015. The examiner thoroughly reviewed the Veteran’s medical history and service treatment records. The Veteran reported that she used to have migraine and tension headaches, which resolved after surgery. She reported having a different type of headache beginning in 2008, in which she felt pressure on both sides and a tender spot on the back of her head. The examiner opined that arteriovenous malformation is less likely as not caused by service because it is a developmental condition. She reasoned that there are no specific headache features that associate with intercranial arteriovenous malformation, which frequently mimics tension or migraine headaches. She stated that it is at least as likely as not that the headaches occurring during service and thereafter are caused by or secondary to developmental intercranial arteriovenous malformation and post-op changes from surgery. She opined that it is less likely than not that the arteriovenous malformation was aggravated beyond its natural progression by service, because the natural progression of such condition can include growth over time with hemorrhage. In November 2015, the Veteran sought medical treatment from Dr. J.T. The Veteran reported having ear pressure, and imbalance with vertigo-type issues. Dr. J.T., noted that a follow-up magnetic resonance imaging (MRI) scan likely showed no recurrent arteriovenous malformation. He opined that the Veteran experienced fluctuant, fairly-stable symptomatology. A neurologist, Dr. W.S. provided a medical opinion in December 2016. Dr. W.S., opined that the arteriovenous malformation was “probably” not incurred in service because it was not known or symptomatic at the time. He further stated that the condition was a congenital lesion, and it would not have been appropriate to screen for an arteriovenous malformation prior to 2006. He stated that such conditions are presumed congenital, only a fraction are symptomatic, and then are only detected when they bleed or are of such a size that they compromise neurological function. He cited medical treatise evidence to support his assertions. Dr. W.S. indicated that bleeding is necessary before surgical removal of arteriovenous malformation, and that screening for such condition because of headaches in patients with normal neurological exams is not indicated by current standards of care. He stated that the Veteran’s bleeding arteriovenous malformation was probably not related to service activity 20 years before. He indicated that any discussion of headaches occurring during or after service is not pertinent to the question of whether the arteriovenous malformation was incurred in service. The RO procured an addendum medical opinion in November 2017. The VA physician, who also performed the 2015 VA examination, reviewed the claims folder and relevant medical records. The physician indicated that arteriovenous malformation is a congenital defect because it is a persistent embryonic pattern of blood vessels. It may proliferate and enlarge over time, with the peak age of rupture between 45 and 55 years (the Veteran was 48 when she suffered a rupture). She stated that the medical knowledge to determine the precise natural progression of arteriovenous malformation does not exist. She cited medical treatises stating that bleeding or seizures are the main modes of presentation, and that most often there are no symptoms before a rupture. She noted that chronic headaches may be a complaint, and a classic migraine occurs in approximately 10 percent of patients. She opined that it was at least as likely as not that the Veteran’s cephalgia, a “part and parcel of congenital [arteriovenous malformation]” manifested during service, because such headaches were documented in service treatment records. The physician considered Dr. N.G.P.’s opinion, and stated that it was unenhanced by strong medical rationale and was a “bare transcription of lay history.” After considering the evidence of record, the Board finds that the preponderance of the evidence is against service connection for arteriovenous malformation. The medical evidence is not in dispute that the Veteran’s condition is a congenital defect, which is not considered a disease or injury for VA compensation purposes. 38 C.F.R. § 3.303 (c). However, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. VAOPGCPREC 82-90 (July 18, 1990). Therefore, the question is whether the Veteran suffered a superimposed disease or injury during military service. The Veteran’s service treatment records are silent for any mention of arteriovenous malformation or another head injury or disease. Nevertheless, the Veteran has stated that military physicians were negligent in failing to detect her arteriovenous malformation during active service. Under a broad interpretation, the Veteran is alleging that failure to detect the arteriovenous malformation constitutes a superimposed injury. The United States Court of Appeals for the Federal Circuit has held that the ordinary definition of injury involves “harm or hurt; usually applied to damage inflicted on the body by an external force.” Terry v. Principi, 340 F.3d 1378, 1384 (Fed. Cir. 2003) (citing Dorland’s Illustrated Medical Dictionary 901 (29th ed. 2000)). This definition suggests that for an “injury” to occur there is usually some external force applied to the body. Nevertheless, the definition leaves room for interpretation considering that inaction can “harm or hurt,” and the Board will consider the Veteran’s theory. Dr. W.S. opined that screening for arteriovenous malformation based on complaints of headaches in patients with normal neurological exams is not indicated by current standards of care. The Board notes that the Veteran’s service examinations documented normal neurological functioning. He further stated that it would not have been appropriate to screen for an arteriovenous malformation prior to 2006, only a fraction of such conditions are symptomatic, and then are only detected when they bleed or are of such a size that they compromise neurological function. The Board affords Dr. W.S.’s knowledge of standards of care and the nature of arteriovenous malformation high probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Dr. W.S.’s etiology opinions used speculative language not expressing a sufficient degree of certainty required for medical nexus evidence, and to that extent only, the Board affords such findings low probative weight. Bloom v. West, 12 Vet. App. 185, 187 (1999). The November 2017 VA physician indicated that arteriovenous malformation is a congenital defect arising from an embryonic pattern of blood vessels. She indicated that it may proliferate and enlarge over time, and that the Veteran’s hemorrhage occurred during the most common rupture period. She cited medical treatises stating that bleeding or seizures are the main modes of presentation, and that most often there are no symptoms before a rupture. Because the physician reviewed the claims file, cited medical evidence, and provided a persuasive medical opinion consistent with her expertise, the Board affords her opinions high probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. N.G.P. indicated that if the Veteran had been given MRI testing during service, then the arteriovenous malformation would have been detected and treatment would have been required immediately. However, he did not specify what treatment could have been provided, or cite to any medical evidence to support his assertions. He did not consider the fact that the Veteran had a negative CT scan in 1998. As his opinion is speculative, ambiguous, and inconsistent with other evidence of record, the Board affords his findings low probative weight. D’Aries, 22 Vet. App. at 107. The Board concludes that the Veteran’s arteriovenous malformation is a congenital defect that was not subject to a superimposed disease or injury during service, including any alleged failure to detect the condition. The probative medical evidence does not suggest that failure to test for arteriovenous malformation can be considered an “injury” superimposed on a congenital defect. In sum, the preponderance of the evidence shows that the Veteran’s arteriovenous malformation is a congenital defect not subject to a superimposed disease or injury during service. 38 C.F.R. § 3.303 (c). The benefit of the doubt does not apply, and the claim is denied. See 38 U.S.C. § 5107 (b). Service Connection – Eye Disability The Veteran seeks service connection for an eye disability, to include as due to arteriovenous malformation surgical repair. The record shows that the Veteran has a progressive cataract in the right eye, and residual nerve trauma to the left eye resulting from arteriovenous malformation surgery. As previously indicated, the Veteran’s arteriovenous malformation, and any resulting surgical complications, are not subject to service connection. 38 C.F.R. § 3.303 (c). Service treatment records do not indicate any evidence of cataracts, or other disabilities of the eye. Her enlistment and separation examinations showed normal eyes. However, the Veteran complained of headaches around the eye during military service. In December 1978, the Veteran was evaluated by eye specialists who listed her complaints as “headaches for past 2 weeks – temporal” and slightly blurred vision. Later that month, follow-up eye testing revealed “benign” findings, and no motor or sensory deficit. The impression was listed as muscle tension headaches. As such, the medical evidence suggests that her “eye” symptoms in service are related to her complaints of headaches, not a disability of the eye. In short, the medical evidence does not show that the Veteran has an eye disability related to service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim, the Veteran’s claim for service connection for an eye disability is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Service Connection – Cephalgia The Veteran seeks entitlement to service connection for cephalgia, to include as due to arteriovenous malformation with repair. The Board observes that “cephalgia” is another word for headache. Magana v. Brown, 7 Vet. App. 224, 226 (1994). Service treatment records show extensive complaints, symptoms, treatment and diagnoses of both migraine and sinus headaches. The Veteran’s enlistment examination showed normal sinuses and neurological functioning. The Veteran’s separation examination found normal neurological functioning; however, it also lists a diagnosis of chronic sinusitis with retention cyst or polyp of the right sinus. The November 2017 VA physician opined that it was at least as likely as not that the Veteran’s cephalgia claimed as chronic migraine headaches (part and parcel of arteriovenous malformation) manifested during military service. In September 2015, she opined that it was at least as likely as not that the headaches during service, and the progression of the headaches through present, were a result of the natural course of the arteriovenous malformation and post-operative changes from arteriovenous malformation surgery. As previously noted, the Board affords her opinion high probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Dr. J.T. indicated that the Veteran had pressure headaches and associated nausea. He suspected that the current headaches were a result of arteriovenous malformation surgery. The Veteran stated that before her surgery, she used to get a different type of migraine headaches with frontal pain near the eyes. Based on review of the medical evidence, the Veteran’s current headaches are associated with arteriovenous malformation, and are not subject to service connection. 38 C.F.R. § 3.303 (c). The benefit of the doubt does not apply and the claim is denied. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disability is remanded for further development, to include an adequate medical opinion. VA’s duty to assist includes providing a medical opinion when there is (1) competent evidence of diagnosed disability or symptoms of disability, (2) an event, injury or disease in service, and (3) an indication that the claimed disability may be associated with the in-service event, injury, or disease. 38 U.S.C § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). VA treatment records reflect that Veteran has had treatment for gastroesophageal reflux disease (GERD) during the period on appeal. For example, in July 2014, the Veteran presented with complaints of longstanding GERD unrelieved by proton pump inhibitors and other treatment. Private medical records from August 2003 list a history of GERD among the Veteran’s conditions. Service treatment records reflect that the Veteran had an abdominal X-ray after complaining of chest pain in September 1978. The clinician noted a large amount of small bowel gas in the central abdomen, possibly due to aerophagia. At her separation examination, the Veteran reported self-treating for frequent indigestion due to specific foods, but denied any history of stomach or intestinal trouble. The Veteran’s throat, abdomen, and viscera were found normal. In a questionnaire dated January 1984, the Veteran denied ever having any stomach condition. However, prior VA examinations did not discuss the Veteran’s reports of indigestion at her separation examination, and whether there could be a potential relationship between those symptoms and her current GERD. Considering the foregoing, the Board finds that remand for an adequate medical opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); McLendon, 20 Vet. App. at 83-86 (the third factor is considered a “low threshold”). The Veteran receives VA treatment for the condition noted on appeal. Therefore, any outstanding, relevant treatment records should be procured. This matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2017 to the Present. 2. Thereafter, obtain an addendum medical opinion from any qualified examiner on the nature and etiology of any diagnosed gastrointestinal disability. The claims file must be made available to, and reviewed by, the examiner. If the examiner deems an additional examination of the Veteran is necessary to provide the requested opinion, such examination should be scheduled. After reviewing the claims file, the examiner is asked to opine on the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a gastrointestinal disability that had its onset during or is otherwise etiologically related to active duty military service? A complete rationale for the opinion must be provided. In rendering the requested rationale, the examiner is asked to discuss the Veteran’s service treatment records, including the reports of indigestion and excessive gas. 3. Thereafter, readjudicate the claim. If the benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel