Citation Nr: 21005248 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 181127-1399 ORDER Service connection for migraine headaches is denied. Service connection for an acquired speech impediment is denied. REMANDED Service connection for a cardiovascular disorder. Service connection for sleep apnea. FINDINGS OF FACT 1. The Veteran served on active duty from January 1972 to December 1993. 2. Migraine headaches were not shown during the appeal period. 3. Acquired speech impediment clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated during service. CONCLUSIONS OF LAW 1. Migraine headaches were not incurred in service. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. An acquired speech impediment was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2019, the Board denied the issues on appeal. The Veteran appealed to the Veterans Claims Court. In August 2020, the Court Clerk granted a Joint Motion for Partial Remand (JMPR), which vacated the July 2019 decision and remanded the matter to the Board for action in compliance with the JMPR. As noted in the September 2020 letter to the Veteran, additional evidence will not be considered. In this regard, when he filed the March 2019 VA Form 10182 (Notice of Disagreement), he requested Direct Review by the Board. Based on his choice to pursue a direct review of his appeal, the Board decided the appeal “based on the evidence of record at the time of the prior decision.” The Board is bound by this choice. Accordingly, no additionally submitted evidence may be considered. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Migraine Headaches The Veteran claims that service connection is warranted for migraine headaches because they are related to service or because they are secondary to service-connected hypertension. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not establish that the Veteran has a confirmed diagnosis of a headache disorder. While an October 2005 treatment record indicated that the Veteran reported occasional headaches, this is a single isolated notation in the post service treatment records and does not suffice to show a current diagnosis. Importantly, VA treatment records dated in March and December 2013 and December 2015 reflected that he denied headaches. Private treatment records dated in November 2015, April 2016, June 2016, May 2017, and November 2017 also noted that he denied headaches. In addition, July 2010 Social Security Administration (SSA) disability benefits records noted that the Veteran reported multiple disabilities, including congestive heart failure, diabetes mellitus, sleep apnea, gout, hypertension, and left shoulder pain, but he did not report headaches. Moreover, the record contains numerous VA and private treatment records showing treatment for hypertension but he never reported associated headaches. In sum, the VA and private treatment records reflect no prior medical history of headaches/a headache disorder, no current complaints of headaches (during the period of the claim), and no current diagnosis of a headache disorder. As a diagnosis of a headache disorder has not been shown, the medical evidence does not support the appeal. The Board has considered the Veteran’s lay statements. While he is competent to report lay-observable symptoms such as experiencing headaches, his statements that he has a current headache disorder are assigned less probative value. Notably, his statement that he has a chronic headache disorder contradicts both the medical history generally noted in the post-service treatment records, as well his as own repeated and numerous denials of any relevant problems or treatment in records post-service. Here, the Board is not only relying on the absence of evidence, but also on the contemporaneous medical records that specifically show that the Veteran has repeatedly denied headaches. To the extent that he asserts that he has a chronic headache disorder related to service or service-connected disability, the Board finds that the current assertions made for VA compensation purposes are given less probative weight, because they are contradicted and outweighed by the more contemporaneous lay and medical evidence, including the Veteran’s own statements made seeking medical care. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). While the Veteran reported occasional headaches in October 2005, no headache disorder was diagnosed at that time and he never again reported experiencing any headaches to any medical professional, even in conjunction with his longstanding treatment for hypertension, despite reporting/complaining of numerous other ailments/symptoms. A single report of occasional headaches 13 years prior to filing his claim for service connection for a headache disorder with subsequent clear denials regarding experiencing headaches is not competent or credible lay evidence of the existence of a chronic headache disorder. Based on the above, the evidence does not support the appeal. Acquired Speech Impediment In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If the disorder was not “noted” at the time of induction, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection. See 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. The Veteran claims that service connection is warranted for an acquired speech impediment (stuttering). A review of the medical evidence does not reflect a current diagnosis of any speech impediment. However, a veteran is competent to describe symptoms that he can perceive using his senses and to give evidence about what he has experienced, to include stuttering. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno, 6 Vet. App. at 469-71. Therefore, as he is competent to describe a speech impediment such as a stutter, there is competent and credible evidence of record showing a current disability. The record reflects that a stutter was not noted at service entry. Instead, an August 1972 service treatment record (STR) reflected that the Veteran reported a speech defect and requested to see a psychiatrist. A June 1988 STR reflected a chronic history of stuttering; it was noted that with speech therapy there had been some improvement. The Veteran indicated that he wanted continued therapy and that his speech impediment worsened with stress. It was noted that no military hospital did speech therapy so civilian speech therapy was called. There were no further entries related to speech therapy or complaints of speech impediment. The September 1993 Report of Medical History for separation reflected that he had a history of stuttering since childhood. The separation examination report is silent as to any speech impediment. As indicated, stuttering was not noted at entry. Therefore, it must be shown by clear and unmistakable evidence that it existed before entry and was not aggravated by service. While there is no medical evidence on point, the STRs, including the September 1993 Report of Medical History for separation, clearly and unmistakably show that the Veteran’s stuttering pre-existed service and was not aggravated during service. In this regard, the STRs show that he had a history of stuttering since he was a child. Moreover, the STRs show some improvement in the stuttering through speech therapy. While the Veteran requested ongoing speech therapy in June 1988 and civilian speech therapy was noted to be contacted, the remaining STRs do not reflect any related complaints or findings and the separation Report of Medical History relates only a history of stuttering. It did not reflect any current complaints and did not indicate any worsening. There is no medical evidence to the contrary, and the Veteran has not alleged otherwise. Importantly, the record does not reflect that he has alleged that his speech impediment was aggravated during service. Instead, in a July 2018 written statement, he indicated it was diagnosed in service, it has been chronic since service, and since he was diagnosed, he dealt with it the best he could. Notwithstanding his more recent assertions, the contemporaneous STRs reflect that the Veteran had a speech impairment since childhood that was not worsened in service. As such, the Board concludes that stuttering clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated during service. Therefore, the appeal is denied. REASONS FOR REMAND With respect to a cardiovascular disorder, the Court Clerk indicated in the JMPR that a remand was required in order to obtain an addendum opinion with complete rationale as to whether the Veteran’s cardiovascular disorder, diagnosed as dilated cardiomyopathy with congestive heart failure and mitral valve regurgitation was aggravated by his service-connected hypertension. Therefore, a remand is required to obtain such an opinion. With respect to sleep apnea, the Court Clerk indicated in the JMPR that a remand was required in order to obtain a medical opinion regarding whether the Veteran’s currently-diagnosed sleep apnea was related to his report of inservice snoring and difficulty breathing during sleep since service. Therefore, a remand is required to obtain such an opinion. The matters are REMANDED for the following actions: 1. Provide the claims file to a clinician in order to provide an addendum medical opinion regarding the etiology of the Veteran’s cardiovascular disorder. The clinician is asked to review the claims file and provide an opinion as to the following: • whether it is at least as likely as not that the Veteran’s dilated cardiomyopathy with CHF and mitral valve regurgitation was aggravated by the service-connected hypertension. A complete rationale must be provided for any opinion given. An examination is not required unless requested by the clinician. 2. Provide the claims file to a clinician in order to provide an opinion regarding the etiology of the Veteran’s sleep apnea. The clinician is asked to review the claims file and provide an opinion as to the following: • whether it is at least as likely as not that the Veteran’s currently diagnosed sleep apnea is causally or etiologically related to service, to include his self-reports of snoring and difficulty breathing during sleep since 1985. For the purposes of this opinion the examiner should consider the Veteran’s statements regarding in-service snoring and difficulty breathing during sleep and his report of ongoing symptoms since service to be credible. A complete rationale must be provided for any opinion given. An examination is not required unless requested by the clinician. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.