Citation Nr: 21003665 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-66 022 DATE: January 22, 2021 ORDER Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran’s headaches were caused by an in-service injury. CONCLUSION OF LAW The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from June 1980 to June 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) Cleveland, Ohio. In February 2020 the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge. The issues of entitlement to service connection for a psychiatric disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2020). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with his claim decided herein are moot. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2020). The Veteran alleges that his headaches began during service and has existed since that time and it is related to an in-service head injury. During the February 2020 Board hearing, the Veteran explained he injured his head in a motor vehicle accident during service. The Veteran stated he began to experience mild headaches in-service that have worsened over the years. The Veteran noted he did not report the headaches during service. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An October 2017 VA examination diagnosed headaches. Accordingly, the first element of service connection has been met. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A May 1981 service treatment record (STR) showed the Veteran was injured in a motor vehicle accident during service. The Veteran suffered a 2cm laceration on his forehead. During an August 2010 VA examination, the examiner diagnosed a status post remote closed head injury without concussion or traumatic brain injury. Accordingly, there was an in-service injury. Third, the Board finds that the evidence of record does support a finding that the tension headaches are due to the in-service injury. Veteran received an August 2010 VA examination. The examiner diagnosed tension headaches secondary to status post remote closed head injury without concussion or traumatic brain injury. The examiner explained the chronic tension type headaches dated back to the Veteran’s head injury in service. The examiner noted the Veteran’s head hit the windshield during the motor vehicle accident, cracking it into a star at the point of impact and causing a scalp laceration. The examiner explained the only symptom was a headache and the scalp laceration was promptly sutured. The examiner noted there were no neurological findings, but headaches occurred daily for at least a week afterwards and thereafter intermittent headaches with decreasing frequency. The examiner indicated the tension headaches were occurring once a month and are the same, a tension type headache centered at the scar on the Veteran’s forehead. The Board affords significant probative weight to the August 2010 VA examination. First, the examiner adequately considered the Veteran’s lay statements regarding symptoms in-service. Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Second, the examiner fully explained why the current tension headaches were the same as the symptoms experienced in service. Notably, the October 2017 VA examination also indicated headaches occur in the forehead. By contrast is the October 2017 VA examination opinion. The examiner opined the headaches were less likely than not incurred in or caused by service. The examiner indicated the Veteran checked no at separation for frequent or severe headaches. The examiner stated there was no mention of headaches in the Veteran’s STRs. The examiner stated they had no reason to doubt the sincerity of the Veteran’s report of having headaches since service but there were no records to support this contention. The Board affords low probative weight to the October 2017 VA examination opinion. The examiner essentially found the Veteran credible but based the negative nexus on the finding that there were no corroborating medical records. Additionally, the examiner noted the May 1983 report of medical history the Veteran filled out during separation, but failed to note a blank May 1983 separation exam. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). Lastly, the October 2017 VA examiner failed to address the positive opinion provided by the August 2010 VA examiner. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, the Board affords the October 2017 VA examination opinion low probative weight. The Board finds the Veteran’s February 2020 Board testimony regarding headaches competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Board makes this finding based on demeanor and because the Veteran’s testimony is consistent with the STRs and August 2010 VA examination medical findings. Accordingly, service connection for tensions headaches is granted. REASONS FOR REMAND Service connection for a psychiatric disorder First, the Board notes reopening is not required. The February 2013 rating decision regarding PTSD was not final. The Veteran received a February 2014 PTSD VA examination within one year. Accordingly, the February 2013 rating decision was not final. Second, the Veteran’s claim for PTSD includes service connection for a psychiatric disorder. Although a Veteran may identify a particular disorder when he or she files a claim, the scope of the claim cannot be limited only to the disorder stated, but must be considered a claim for any disorder that may reasonably be encompassed by several factors including the description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Where there is not a prior, final decision on one diagnosis based on competent medical evidence that justifies separating a new diagnosis into a separate claim, and the claim is still in the initial adjudicatory phase, the Veteran’s statements do not limit the scope of the claim. Clemons, 23 Vet. App. at 5. Rather, the varying diagnoses are considered as one claim for service connection for a psychiatric disorder. Clemons, 23 Vet. App. at 5. Third, remand is required for additional development. During the February 2020 Board hearing, the Veteran reported an in-service stressor involving seeing a fellow service member commit suicide in August 1982. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressor. Lastly, remand is required for an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a January 2013 VA examination and a February 2014 VA examination. The VA examinations determined PTSD was not present and did not provide an opinion regarding the other diagnosed mental health conditions. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, remand is required for an adequate examination and opinion. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Attempt to corroborate the Veteran’s in-service stressor, including report of fellow service member that committed suicide in Germany, August 1982. See February 2020 Board hearing testimony and January 2013 VA examination reports. If more details are needed, contact the Veteran to request the information. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorder, including PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must determine all of the Veteran’s diagnosed psychiatric disorders. The examiner must specifically determine if PTSD, anxiety disorder, and depressive disorder are present. If not found, the examiner must address the prior diagnoses of anxiety disorder and depressive disorder. Second, if the Veteran has a present diagnosis of PTSD, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the PTSD had onset in, or is otherwise related to, active military service, to include any verified in-service stressors. Third, for each diagnosed psychiatric disorder other than PTSD, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active military service, to include any verified in-service stressors. The examiner must address: 1) the January 2013 VA examination; 2) the February 2014 VA examination; 3) the February 2020 Board hearing testimony; and 4) any additional relevant records added as a result of this remand. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, 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.