Citation Nr: 1806552 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-11 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a tension headache disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a heart condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1981 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO). The record is now in the jurisdiction of the Seattle, Washington RO. In May 2017, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. The issue of entitlement to service connection for a cervical spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a statement received May 24, 2017, the Veteran withdrew his appeal of entitlement to service connection for a heart disorder. 2. The Veteran's tension headache disorder was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal with respect to entitlement to service connection for a heart disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for entitlement to service connection for a tension headache disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits. See 38 C.F.R. § 20.204 (2017). After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board. Id. Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran's claim number, and a statement that the appeal is withdrawn. Id. In May 2017, the Veteran submitted written notification of his desire to withdraw his appeal of entitlement to service connection for a heart disorder. See May 24, 2017 Statement in Support of Claim. The Veteran's request to withdraw his claim is in writing, contains his name and claim number, and clearly expresses his wish to withdraw the appeal. Id. As the Board has not yet issued a decision concerning this issue on appeal, the criteria are met for withdrawal of the claim. 38 C.F.R. § 20.204. When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issues that had been previously appealed. In such an instance, dismissal of the pending appeal is appropriate. See 38 U.S.C. § 7105(d) (2012). Accordingly, further action by the Board on the issues is not appropriate and the appeal should be dismissed. Id. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that his current tension headache disorder is the result of his active duty service. Specifically, the Veteran has asserted that he sustained repeated in-service head traumas which resulted in his chronic tension headache disorder. See March 2014 VA Form 9; May 2017 Hearing Transcript. At the May 2017 Board hearing, the Veteran testified to hitting his head a number of times while he was in service. See May 2017 Hearing Transcript. The Veteran also testified that he required stitches after hitting his head on at least one occasion. Id. The Veteran's wife, L.S., testified that she removed stitches from the Veteran's head, after he suffered an in-service laceration. Id. L.S. further testified that she has a medical background in emergency medicine and witnessed the Veteran's daily headaches since his time in service. Id. L.S. opined that the Veteran's tension headache disorder is more likely than not due to the injuries he sustained in service. Id. The Board finds this opinion to be both competent and credible, as it is supported by a rationale, specifically that the Veteran's numerous in-service head traumas caused his tension headache disorder. Id.; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). The Board acknowledges that an April 2014 private medical record reported that, prior to 2012, the Veteran did not suffer from headaches any more than the average person. See April 2014 Pacific Rim Headache Center Treatment Note. The April 2014 statement does not appear to take into account the Veteran's competent and credible reports of daily headaches from his active duty service to the present. Accordingly, the April 2014 medical statement forms an inadequate foundation upon which to base a denial of entitlement to service connection for tension headaches. In sum, the Veteran has been diagnosed with a tension headache disorder. This diagnosis has been attributed by competent medical evidence to his active duty service. Although there is a conflicting medical record, the Board finds that, at the least, the evidence for and against the claims is in relative equipoise. When the evidence for and against a claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss is warranted. ORDER The claim of entitlement to service connection for a heart disorder is dismissed. Entitlement to service connection for tension headaches is granted. REMAND Unfortunately, the Veteran's remaining claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide his claim so he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). At the outset, VA treatment records appear to be incomplete. Specifically, the Veteran testified that he has undergone at least one MRI in September 2016 and has also been diagnosed with degenerative disc disease by Dr. Shu. See May 2017 Hearing Transcript. On remand, the Veteran's VA treatment records must be associated with the claims file. The Board notes that the Veteran has not been afforded a VA examination for compensation purposes. Given the Veteran's testimony at the May 2017 Board hearing, as well as the testimony of his wife, the Board finds that an examination is required. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in relevant part, that a VA examination or opinion is required when, among other things, there is evidence of a current disability and an indication that the current disability may be related to an in-service disease, injury, or event). On remand, the Veteran should be afforded a VA examination which addresses the competent and credible statements of the Veteran and his wife regarding his symptomatology, both during and after service, as well as his treatment for that symptomatology, both during and after service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete VA treatment records concerning treatment for his neck and/or cervical spine. Specifically request any and all treatment records rendered by Dr. Shu, to include the September 2016 MRI report. 2. Thereafter, schedule the Veteran for an appropriate VA examination to address the nature and etiology of his cervical spine disorder. The entire claims file, to include a copy of this REMAND must be made available to the examiner in conjunction with the opinion. The examiner must confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should elicit a fill history from the Veteran. After reviewing the file, eliciting a full medical history from the Veteran, conducting an examination of the Veteran, performing any clinically indicated diagnostic testing, the examiner must provide answers to the following: (a) Identify, by diagnosis, each cervical spine disorder found to be present, to include degenerative disc disease. (b) For each cervical spine disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any incident of service, to include the Veteran repeatedly hitting his head. In rendering this opinion, the examiner must address the following: * The Veteran's competent and credible reports of a continuity of cervical spine/neck symptomatology, as well as why he did not seek documented medical attention for his symptomatology during service. * The Veteran's wife's May 2017 testimony opining that the Veteran's neck disorder is more likely than not related to his in-service injuries. The Board notes that the Veteran's wife is a medical professional and is competent to render this opinion. The examiner must provide a complete rationale for all opinions provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 3. Finally, after completing any other development that may be indicated, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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 (2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs