Citation Nr: 20021951 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 16-12 406A DATE: March 30, 2020 ORDER Service connection for headaches is granted. REMANDED Entitlement to service connection for an eye disability, to include cataracts, is remanded. FINDING OF FACT The Veteran’s headaches had their onset during service. CONCLUSION OF LAW The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1975 to October 1979. He served on active duty in the United States Air Force from January 1991 to July 1991 and from May 2006 to October 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In October 2019, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. Service connection for headaches The Veteran has reported that he currently experiences headaches that began while he was serving on active duty in Iraq in 2006. The Board finds that service connection for headaches is warranted, as the evidence establishes that his current disability arose during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is competent to identify a headache with specific symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In that regard, he testified during his October 2019 Board hearing that his current headache symptoms began in 2006, during his active duty service in Iraq. The Veteran’s description of his headache symptoms during and since his service in Iraq support the current diagnosis of sinus headaches provided by a medical professional. See January 2013 VA Compensation and Pension Exam Report. See also, Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In finding that service connection for headaches is warranted, the Board acknowledges that the same VA examiner who diagnosed the Veteran’s current headaches as sinus headaches opined that they were less likely than not related to service and “seemed to be related to allergic rhinitis.” See January 2013 VA Compensation and Pension Exam Report. However, the Veteran also reported during that examination that his headaches did not begin until he was stationed in Iraq, and the examiner did not address the significance of the timing of their onset. In any event, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Here, in light of the positive and negative evidence of record, to specifically include the Veteran’s competent and credible statements describing headaches that began in service and continued thereafter, the Board finds that the evidence is at least in equipoise regarding whether his current headaches were incurred in service. Hence, affording him the benefit of the doubt, service connection for headaches is warranted, and the claim is granted. REASONS FOR REMAND Entitlement to service connection for an eye disability, to include cataracts, is remanded. The Veteran has asserted that he has several vision problems—including dry eye and cataracts—that are related to his period of active duty service in Iraq. The record documents his treatment for eye conditions upon his return from Iraq. See, e.g., March 2007 VA Optometry Note. In November 2012, the Veteran underwent a VA examination to evaluate his eye disabilities. The examiner confirmed that the Veteran had cataract surgery (with lens replacement) of the left eye in 2012. The examiner also noted a cataract in the right eye. The examiner rendered a negative nexus opinion regarding the question of a link between cataracts and service. In reaching his conclusion, he explained that the Veteran’s cataracts may be related to age, but that their actual cause could not be determined. Unfortunately, the examiner did not include any discussion about changes to the Veteran’s vision during and after his deployment to Iraq and did not discuss the Veteran’s assertions that he has current eye symptoms, including dry eye, that developed following his exposure to various environmental contaminants while stationed in Iraq. In light of the foregoing inadequacies in the 2012 VA examination, an additional examination is needed on remand. On remand, the Veteran should also be afforded another opportunity to authorize VA to obtain relevant, outstanding private treatment records, and ongoing VA treatment records should be obtained. Accordingly, the matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any private care providers who have treated him for an eye condition, to specifically include records that may be held by the current eye care practice of the private clinician (Dr. A.M.) who performed the cataract surgery on the Veteran’s right eye. If the Veteran provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last obtained, following the procedures set forth in 38 C.F.R. § 3.159. 3. After completing the foregoing development to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of any eye conditions. If possible, the examination should be conducted by an ophthalmologist or similarly trained medical expert. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all current eye disabilities. In doing so, please discuss the eye conditions of record, including but not limited to cataracts and dry eye. In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. Please note that, although the Veteran may not meet the criteria for a diagnosis of a certain eye disorder at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a “current” diagnosis. (b) For each diagnosed eye condition, is it at least as likely as not (50 percent probability or more) that the disability had its onset in service or is otherwise related to service? Please explain why or why not, specifically considering and discussing (1) the onset and removal of the Veteran’s cataracts; (2) his treatment for dry eye; (3) his report of experiencing dry and burning eyes while stationed in Iraq; and (4) his descriptions of his exposure, without protective eyewear, to bright sunlight, extreme heat, burn pit emissions, and other airborne particulate matter, including sand, while stationed in Iraq in 2006. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and state why that is so. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.