Citation Nr: 20061908 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 13-18 159 DATE: September 21, 2020 ORDER Service-connected aggravation for stuttering speech condition is granted. REMANDED Service connection for fissures is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his pre-existing stuttering speech condition was aggravated by his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, stuttering speech condition was aggravated by active duty service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1972, to include service in Vietnam from September 1971 to April 1972. The case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO) in Buffalo, New York. The New York, New York RO now has jurisdiction. This matter was previously before the Board in April 2018 but was remanded for further development. The Board finds that there has not been substantial compliance with the Board previous remand directives regarding both issues. As such, another remand is required for the issue of service connection for fissures. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges the inadequacy of the June 2019 speech condition VA opinion, but as the claim is granted, a remand for another examination is not warranted. Service-connected aggravation for stuttering speech condition is granted. The Veteran contends that his stuttering speech condition was aggravated by service. Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234; see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. The analysis is different in a case where the preexisting condition was noted upon entry into service. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C. § 1153. The Veteran’s July 1969 pre-induction examination noted a stuttering condition which was found to occur only when the Veteran was anxious. After entering service, a June 1970 service treatment record (STR) notes the need for treatment for speech stammering. A July 1970 STR notes the Veteran’s report that his stuttering speech had worsened due to his assignment in Vietnam. The Board finds that stuttering speech condition was noted upon entry to service. The presumption of soundness does not attach. The pertinent question now is whether there was aggravation during service. A November 2009 private opinion states that the Veteran’s stuttering condition was aggravated during service as indicated by the fact that he sought ENT treatment along with speech therapy in 1976, not long after separation from service. An August 2009 VA treatment evaluation notes the Veteran’s complaints of worsened speech problems, stuttering and panic attacks. A December 2010 VA examination noted that the Veteran’s stuttering is closely related to his anxiety, and his anxiety is shown to have worsened during service and over the years. The examiner opined that in light of the correlation between the Veteran’s speech and his anxiety, it is possible that service caused his stuttering to worsen due to the worsening of his underlying nervous traits. In August 2015, a VA examiner provided a negative aggravation opinion concerning the Veteran’s speech condition and his service. The examiner opined that based on review of the Veteran’s claims file, his stuttering was less likely as not permanently aggravated beyond its normal course by military service. The rationale explained that medical records reveal that the Veteran no longer suffers from panic attacks, is married, and employed full time. These assessments reveal improvement in the Veteran’s condition rather than aggravation by military service. January and December 2015 VA treatment reports note the Veteran’s complaints of panic attacks. Pursuant to the April 2018 Board remand, the Veteran was afforded a VA examination to address aggravation of his speech condition during service. See June 2019 VA Examination. The examiner noted the Veteran’s report of stuttering since childhood. He opined that based on the Veteran’s self-report of no difference in severity from before service to present, there is no evidence of a sustained increase in social anxiety disorder during service. The examiner did not provide an aggravation opinion concerning the Veteran’s stuttering speech condition. The Board finds that service connection for the Veteran’s stuttering speech condition is warranted. As stated above, the Veteran’s speech condition was noted on enlistment. A June 1970 STR notes the Veteran’s need for treatment for speech stammering, and a July 1970 STR notes the Veteran’s self-report that his stuttering speech had worsened due to his assignment in Vietnam. The Board finds the Veteran is competent to report that he is having greater trouble with his stuttering speech. See Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Moreover, the Veteran reported aggravation of his speech condition during his time in Vietnam as evidenced by his seeking treatment. Therefore, his statements are considered credible and persuasive evidence in support of his claim. Thus, the presumption of aggravation attaches. There is no clear and unmistakable evidence to rebut that presumption; that is, that the increase was due to the natural progress of the disability. Initially, the Board finds the August 2015 and June 2019 VA opinions to be inadequate. First, the August 2015 opinion is based on inaccurate information. The rationale explained that the record indicates the Veteran’s speech condition has improved since service due to his panic attacks dissipating, getting married, and becoming employed full time. However, review of the record reveals several VA treatment remarks concerning the Veteran’s complaints of nervous and panic attacks. See January and December 2015 VA treatment reports. Moreover, the opinion did not utilize the correct standard to determine if the Veteran’s speech condition had been aggravated by service. Therefore, the August 2015 VA opinion is not clear and unmistakable evidence that the in-service increase was due to the natural progress of the disability. Lastly, the June 2019 VA examiner failed to address whether the Veteran’s speech condition was clearly and unmistakably not aggravated by service. Thus, it is afforded no probative value. The Board finds that the most probative evidence of record are the opinions of the November 2009 private physician, and December 2010 VA examiner. Both opinions provided a thorough analysis based on accurate information from the Veteran’s claims file. Thus, viewing the evidence as a whole, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s speech condition was aggravated by his active duty service and therefore service connection is warranted. REASONS FOR REMAND Service connection for fissures is remanded. With respect to the Veteran’s claim for entitlement to service connection for fissures, a July 1969 STR notes a scar on right thumb, and a March 1970 STR reports a skin condition on the Veteran’s hands and legs. Post service, the Veteran underwent a VA examination for fissures in March 2010. Upon examination, the Veteran was found to have left thumb and right third fingertip fissures. The examiner diagnosed the Veteran with fissures. The VA examining physician who examined the Veteran in June 2019 pursuant to the Board remand made the medical opinion that it is less likely than not that the Veteran’s fingertip fissures are related to service. The rationale explained that upon examination, no fissures were found so a nexus opinion is moot. Further, the examiner found no evidence of skin fissures in service due to normal entry and separation examinations. It should be noted that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim (even if the disorder later resolves). McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was diagnosed with skin fissures in March 2010. Thus, a current disability has been established. Further, the Board finds the June 2019 VA opinion to be inadequate. While the June 2019 examiner has provided a negative nexus opinion, the examiner relied on the fact that there was no record of diagnosis or treatment for fissures in service. The Board finds this opinion to be based on inaccurate facts, as the July 1969 STR notes a scar on right thumb, and a March 1970 STR reports a skin condition on the Veteran’s hands and legs. As such, this opinion is afforded no probative weight. Accordingly, a new opinion is warranted. The matters are REMANDED for the following action: 1. Obtain updated treatment records related to the Veteran’s skin fissures. 2. After any additional treatment records are obtained, return the claims file to the examiner who performed the June 2019 VA examination, if available. If such examiner is unavailable, then another appropriate examiner shall be assigned. If the examiner deems that a new VA examination or any additional testing is necessary, efforts to conduct such examination and testing shall be undertaken. The claims file and a copy of this remand should be available and reviewed by the examiner. Initially, the VA examiner is to assume as fact that the Veteran has a current diagnosis of skin fissures The examiner is asked to opine on the etiology of the Veteran’s skin fissures. Specifically, the examiner is asked: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s diagnosed skin fissures had its onset in service or are otherwise related to service? Consideration should be given to the July 1969 and March 1970 STR notes. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 3. Then, readjudicate the issue on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.