Citation Nr: 20025244 Decision Date: 04/13/20 Archive Date: 04/13/20 DOCKET NO. 06-17 935A DATE: April 13, 2020 ORDER Entitlement to service connection for headaches is granted. REMANDED Entitlement to a compensable rating for Hepatitis C is remanded. Entitlement to service connection for pain and burning sensations in the legs, shoulders, arms and/or neck, to include as secondary to service-connected Hepatitis C is remanded. FINDINGS OF FACT The evidence is at least in equipoise as to whether the Veteran’s headaches is etiologically related to service. CONCLUSIONS OF LAW The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to September 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in September 2005 and May 2007 of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, July 2012, and June 2016, entitlement to a compensable rating for Hepatitis C, entitlement to service connection for headaches, an acquired psychiatric disorder, and pain and burning sensations in the legs, shoulders, arms and/or neck were remanded for additional development. In July 2017, the Board denied entitlement to a compensable rating for Hepatitis C, entitlement to service connection for headaches, and entitlement to service connection for pain and burning sensations in the legs, shoulders, arms and/or neck. However, the issue of entitlement to service connection for an acquired psychiatric disorder was remanded for additional development. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and the Court returned that decision to the Board pursuant to a Memorandum Decision in June 2019 because the Board failed to provide adequate reasons and bases for such denial. As such, in December 2019, the Board remanded the case for additional development and it now returns for further appellate review. With regards to entitlement to service connection for an acquired psychiatric disorder, the Board notes that such issue was remanded in the July 2017 Board decision. In this regard, a Supplement Statement of the Case was issued in March 2020; however, such issue has not been recertified to the Board and it remains in appellate status, but it is not yet ripe for adjudication. Therefore, the issue will be addressed in a future Board decision. Service Connection Service connection may be granted 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 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for headaches. The Veteran contends that his current headaches are related to service, to include his duties as a boxer on the Army’s boxing team. In the alternative, he contends that such disorder is related to his service-connected Hepatitis C. As will be discussed below, the evidence of record reflects that the Veteran’s headaches are directly related to his military service. Accordingly, the Board herein grants service connection for headaches on a direct basis. Therefore, it is not necessary to address any alternative theory of entitlement. See, e.g., Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). As an initial matter, the Board notes that at a January 2020 VA examination, the examiner indicated that the Veteran’s headaches pre-existed his military service, based solely on the Veteran statements that he was a boxer prior to entry into the military and he sustained concussions. However, a review of the record shows that the Veteran has continued to report that his symptoms began while in service. Moreover, there is no evidence of record indicating that the Veteran’s current headaches preexisted his military service. Accordingly, the Board finds that there is not clear and unmistakable evidence that the Veteran’s current headaches preexisted service and thus, the presumption of soundness at service entrance is not rebutted. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner, 370 F.3d at 1096. The Board notes that the January 2020 VA examiner diagnosed the Veteran with post-concussion headaches, with a 1972 date of diagnosis. Moreover, the Veteran’s service treatment records (STRs) indicated that, in March 1972, he was treated after being struck in the nose, at which time slight deformity and swelling were noted. Radiographic imaging revealed that he sustained fractured nasal bones. Following separation from service, a July 1977 Report of Medical Examination for Disability Evaluation shows that he complained of headaches. Moreover, in a May 2005 statement from the Veteran, he reported that, while in service, he had many fights and sparing sessions that caused him to be hit in the head. He further reported that it was a combination of the blows to his head that caused the headaches. The Veteran is competent to describe his in-service duties, and the Board finds his statements to be credible as such is consistent with the nature and circumstances of his military service. Consequently, the only remaining inquiry is whether the Veteran’s headaches are related to his military service, to include his duties as a boxer. In this regard, the record contains a December 2019 VA treatment record, which notes that the Veteran had post-concussion syndrome following blows to the head from boxing, which leaves him with headaches and memory loss. The concussions were sustained as a boxer, which started prior to the military. The VA staff clinician further noted that the Veteran enlisted in special services, boxed for a year, and he was discharged from service. The Veteran was afforded another VA examination in January 2020. At such time, the examiner opined that it was less likely than not that the Veteran’s headaches incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner explained that there was no medical nexus establishing causality between current complaint of headaches and military service. The examiner further explained that there was no residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. The examiner also stated that the Veteran was a boxer prior to entry into the military and his headaches are a result of his boxing prior to entry into the military. The examiner’s conclusion was based on the December 2019 VA treatment record described above. However, it appears that the January 2020 VA examiner’s opinion was based on the inaccurate factual premise that there was no residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence following service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In this regard, the Veteran’s March 1972 report of being struck in the nose and a July 1977 post-service report of headaches. Although the examiner stated that the Veteran’s headaches were not demonstrated by evidence following service, she concluded that his headaches were a result of his boxing prior to service. Moreover, the Board finds that the opinion lacks a clearly stated rationale as it appears that the examiner focused on the Veteran’s experience prior to his entrance into the military. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Furthermore, the examiner did not consider the Veteran’s lay statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). Therefore, the January 2020 VA examiner’s opinion is afforded no probative weight. The Board finds that the Veteran entered service with no headache complaints-normal findings and that he experienced an injury during his military service, to include his duties as a boxer. Additionally, he has a 1972 diagnosis of post-concussion headaches, he sustained nasal fracture while boxing in March 1972, he reported headaches in a July 1977 private treatment record, and the Veteran has competently and credibly reported symptoms since service. Moreover, the 2020 VA examiner and December 2019 VA staff clinician essentially concluded that boxing could cause headaches. After resolving all doubt in the Veteran’s favor, the Board finds that his current headaches had its onset during his active duty service. Accordingly, service connection for headaches is warranted. 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 2. Entitlement to a compensable rating for Hepatitis C. In September 2007 and December 2010, the Veteran was afforded VA examinations for his Hepatitis C. However, in July 2012, the Board found that the Veteran had not been provided with an examination to determine to severity of his Hepatitis C. Additionally, in May 2014, the Veteran was afforded a VA examination. However, the Board determined in June 2019 that the examination was inadequate for adjudication purposes, and thus requires no further discussion. The Veteran underwent a VA examination in January 2020. However, it appears that the Veteran has experienced symptoms during the pendency of the appeal and that those symptoms are more severe than those reported on examination. In this regard, an April 2007 “Chronic Hepatitis C Treatment Evaluation Worksheet” reflects that testing continued to be positive for the Hepatitis C antibody, and notes that other evidence of liver disease includes increased fatigue and right upper quadrant tenderness. In October 2007, the Veteran’s treatment providers continued to assess chronic “HCV” and prescribed Ribavirin for his hepatitis C. A November 2007 medical record shows that the Veteran was prescribed Ultram for his painful joints, which were noted to be a side effect of his Hepatitis treatment. At that time, he also reported fatigue and pain. An October 2010 treatment record shows a complaint of right upper quadrant pain, fatigue, malaise, arthralgia, and nausea with vomiting. A November 2010 medical record reflects that the Veteran presented with right upper quadrant pain for the past three to four years, which worsened three months ago, and reported “throwing up for the last three months.” In November 2010, the Veteran indicated that he experienced daily fatigue, malaise, weight loss, vomiting, arthralgia, and right upper quadrant pain. Additionally, in March 2011, the Veteran submitted a statement indicating that he still experienced side effects from Interferon and Ribavirin, to include fatigue, muscle aches, headaches, fever and chills. Additionally, an October 2012 VA treatment record indicates that the Veteran reported that he had a decreased appetite for years and he also stated that he had a poor appetite every day. In a September 2019 VA mental health examination, he reported that he did not eat good, and in a January 2020 VA treatment record, the Veteran reported malaise. Therefore, the symptoms described by the Veteran throughout the appeal period were not considered in determining his evaluation. As such, an addendum opinion or if necessary, a new examination is necessary to determine the severity of the Hepatitis C. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 3. Entitlement to service connection for pain and burning sensations in the legs, shoulders, arms and/or neck, to include as secondary to service-connected Hepatitis C. In August 2010, December 2010, and May 2014, the Veteran was afforded a VA examinations and medical opinions for pain and burning sensations in the legs, shoulders, arms and/or neck. However, the Board determined in July 2012 and June 2019 that the medical opinions were inadequate for adjudication purposes, and thus requires no further discussion. The Veteran contends that he is entitled to service connection for pain and burning sensations in his legs, shoulders, arms, and neck. In this regard, he reported that he has he was on the Army boxing team, and since separation, he has experienced pain all over his body, with numbness and burning sensations. The Veteran also contends that such disorders are due to his service-connected Hepatitis C. The U.S. Court of Appeals for the Federal Circuit recently found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In January 2020, the Veteran was afforded a VA Peripheral Nerves examination. At such time, the examiner concluded that there were no available medical records of evidence at the time of the examination to substantiate a diagnosis of neuropathy of bilateral upper and lower extremities. However, the Board finds that, in light of Saunders, an addendum opinion is necessary so as to determine whether the Veteran’s pain and burning sensations in the legs, shoulders, arms and/or neck symptomatology presents a functional impairment of earning capacity, and if so, whether such impairment is related to service or his service-connected Hepatitis C. The matters are REMANDED for the following action: 1. Obtain an addendum opinion addressing the severity of the Veteran’s Hepatitis C. If necessary, schedule the Veteran for appropriate VA examination. The need for another VA examination is left to the discretion of the examiner. The claims file must be reviewed in conjunction with the examination. All tests deemed necessary should be conducted and the results reported. The examiner should identify the current nature and severity of all manifestations of the Veteran’s Hepatitis C since 2005. All objective and subjective symptoms throughout the appeal period for such disability should be described in detail, to include the following: • An April 2007 “Chronic Hepatitis C Treatment Evaluation Worksheet” reflects that testing continued to be positive for the Hepatitis C antibody, and notes that other evidence of liver disease includes increased fatigue and right upper quadrant tenderness. • An October 2007 note that his treatment providers continued to assess chronic “HCV” and prescribed Ribavirin for his hepatitis C. • A November 2007 medical record that shows that the Veteran was prescribed Ultram for his painful joints, and he reported fatigue and pain. • An October 2010 treatment record shows a complaint of right upper quadrant pain, fatigue, malaise, arthralgia, and nausea with vomiting. • A November 2010 medical record reflects that the Veteran presented with right upper quadrant pain for the past three to four years, which worsened and reported “throwing up for the last three months.” • In November 2010, the Veteran indicated that he experienced daily fatigue, malaise, weight loss, vomiting, arthralgia, and right upper quadrant pain. • In March 2011, the Veteran submitted a statement indicating that he still experienced side effects from Interferon and Ribavirin, to include fatigue, muscle aches, headaches, fever and chills. • An October 2012 VA treatment record indicates that the Veteran reported that he had a decreased appetite for years and he also stated that he had a poor appetite every day. • In a September 2019 VA mental health examination, he reported that he did not eat good. • A January 2020 VA treatment record where the Veteran reported malaise. 2. Obtain an addendum opinion addressing whether the Veteran has pain and burning sensations in the legs, shoulders, arms and/or neck or a functional impairment of his legs, shoulders, arms and/or neck, and if so, whether his pain and burning sensations in the legs, shoulders, arms and/or neck or functional impairment is related to service or any event of service. If necessary, schedule the Veteran for appropriate VA examination. The need for another VA examination is left to the discretion of the examiner. After reviewing the Veteran’s claims file, the examiner should set forth all findings associated with the pain and burning sensations in the legs, shoulders, arms and/or neck. The examiner should review the record and then address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has a disability related to legs, shoulders, arms and/or neck or symptomatology that results in functional impairment of earning capacity. As previously noted, pain alone can serve as a functional impairment and therefore qualify as a disability. If no disability or functional impairment is present, the examiner should state so and provide a rationale for any conclusion reached. (B) If the Veteran has a disability of the legs, shoulders, arms and/or neck or functional impairment attributable to the legs, shoulders, arms and/or neck, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset during, or is otherwise related to, his military service, to include his in-service duties as a boxer? In rendering such opinion, the examiner should consider the Veteran’s report that he was on the Army boxing team, and since separation, he has experienced pain all over his body, with numbness and burning sensations. The examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran’s service treatment records are negative for complaints, treatment, or diagnoses referable to the claimed disorders. (C) Is it as likely as not (i.e., a 50 percent or greater degree of probability) that the Veteran’s currently diagnosed disorders were caused or aggravated by his service-connected Hepatitis C, to include medication taken for his service-connected Hepatitis C? In rendering such opinion, the examiner should consider the side effects associated with such medication. The examiner should also consider that a December 2010 VA examiner noted that the Veteran received Interferon for treatment of his viral illness and adverse effects of Interferon include symptoms that the Veteran reported. The term “aggravation” in the above context refers to “any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions…regardless of its permanence.” In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brennae L. Brooks, 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.