Citation Nr: 21068408 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 12-27 257 DATE: November 10, 2021 ORDER New and material evidence has been received, and the claim for entitlement for service connection for scar on the left arm is reopened. New and material evidence has been received, and the claim for entitlement for service connection for weakness of the left arm is reopened. Entitlement to service connection for scarring on the back of the head is granted. Entitlement to service connection for headaches is denied. Entitlement to service connection for Meniere's disease is denied. REMANDED Entitlement to service connection for a scar on the left arm is remanded. Entitlement to service connection for weakness of the left arm is remanded. FINDINGS OF FACT 1. Since the last, final rating decision dated April 2010, evidence submitted to reopen the claim for service connection for left arm scar is new to the record and pertains to an unestablished fact necessary to substantiate the claim. 2. Since the last, final rating decision dated April 2010, evidence submitted to reopen the claim for service connection for weakness of the left arm is new to the record and pertains to an unestablished fact necessary to substantiate the claim. 3. Resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted for a laceration scar on the back of his head. 4. The Veteran's headaches are not shown to be etiologically related to his service. 5. The Veteran has not been diagnosed with Meniere's disease. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for entitlement to service connection for left arm scar have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim for entitlement to service connection for left arm weakness have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a laceration scar on the back of his head have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Service connection for a headache disability is not warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 5. The criteria for entitlement to service connection for Meniere's disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1953 to March 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was previously before the Board in February 2014, October 2014, May 2016 (when the head scar, headaches, and Meniere's disease claims noted above were reopened), June 2017, and most recently in July 2018 when the claims were remanded for further development to include obtaining any relevant VA treatment records pertaining to the Veteran's claimed disorders since July 2012, including specifically from the VA Outpatient Clinic of North Platte, the Grand Island VA Medical Center (VAMC), and Omaha VAMC, as well as any non-duplicative VA treatment records that may exist from the Cheyenne VA Medical Center. VA was also requested to document all efforts to obtain these records in the claims file. The record indicates that updated records from the Omaha VAMC dated April 2012 through February 2019, including North Platte and Grand Island, and updated records from Cheyenne VAMC dated December 2016 through February 2019 were received in February 2019. The Board notes that, to the full extent possible, VA complied with the remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matters have returned to the Board for further appellate review. The Board observes that the June 2017 Board decision granted revocation of the Veteran's June 2009 VA Form 21-22 identifying the American Legion as his chosen representative. The Board notes that the claims file includes a subsequent May 2020 VA 21-22 reappointing the American Legion as the Veteran's representative. The Board observes that additional medical records were received after issuance of the last Statement of the Case (SOC) in June 2019. However, the evidence is cumulative in nature regarding the claimed head scar, headaches, and Meniere's disease, and a waiver is not necessary for these issues. The additional evidence received regarding left arm weakness is addressed in the new and material evidence section below. This matter is properly before the Board. The Board observes the Veteran's claims file includes an indication that his service treatment records (STRs) are unavailable due to a fire-related incident. See July 2009 Request for Information response. A thorough review reveals that the claims file does not contain any STRs. As such, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. However, the Board observes that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). New and Material Evidence Service connection for separate claims for a left arm scar and left arm weakness were denied in an unappealed April 2010 rating decision. Evidence submitted since that rating decision includes a June 2013 VA physical therapy record that noted the Veteran cannot raise his left arm, a January 2020 private treatment record that noted left arm weakness, and a February 2020 private treatment record that noted motor deficits in the left arm. As to the left arm scar, the Board notes that October 2011 and December 2016 VA scar examinations failed to address the presence of a left arm scar and are thus not helpful to the Board in a decision regarding the service connection claim. In addition, the Veteran's representative continues to assert entitlement to service connection as noted in an October 2021 Appellate Brief. The Board finds this newly received evidence is relevant, because it specifically concerns the conditions being claimed. It is new because it was not previously considered in the April 2010 rating decision. It is material because it pertains to unestablished facts necessary to substantiate the separate claims of entitlement to service connection for left arm scar and left arm weakness - namely, the presence, current nature, and etiology of the claimed disabilities. As this additional evidence is new and material, these claims may be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The merits of these claims are addressed in the remand section. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has actually observed and is within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for scarring of the back of the head The Veteran asserts that he injured his head and required stitches during active service that resulted in a scar on the back of his head. See August 2009 VA Form 13055. A September 2011 Statement in Support of Claim further clarified that he was struck on the top of his head and has a lump on his skull. After a thorough review of the claims file, and resolving all doubt in the Veteran's favor, the Board finds service connection is warranted for a laceration scar on the back of his head. The Board acknowledges that the Veteran had a diagnosed laceration scar on the back of his head confirmed during this appeal. See December 2016 VA scars/disfigurement examination. Thus, the only question for the Board is whether the scar on his head occurred during service or is at least as likely as not related to an in-service injury, event, or disease. As noted above, there are no STRs in the claims file. Post-service treatment records include a March 2018 primary care record wherein the Veteran reported being injured during active service that resulted in a scar on his scalp. The same record noted a firm area of scarring to the scalp. The Board also reviewed an April 2012 lay statement from the Veteran's spouse, wherein she asserted receiving a letter from the Veteran describing an incident that occurred while he was on night duty and some drunk soldiers knocked him over backwards in his chair causing him to hit his head on a hot water register. She indicated that the Veteran reported being treated for a laceration. During an October 2011 VA scars examination, the examiner confirmed a scalp laceration scar from May 1954. After an in-person examination, the examiner opined that the Veteran's scar on the back of his head is at least as likely as not (50 percent or greater probability) caused by or a result of an incident while the Veteran was on active service when he sustained a laceration on the back of his head which required sutures. A laceration was noted to have healed without applications or residuals. There is no currently visible scar. The Board also reviewed a December 2016 VA scars/disfigurement examination and medical opinion. Following an in-person examination and review of the claims file, the examiner confirmed a diagnosis for a scar on the back of the Veteran's head from 1954, noting that the scar had resolved without any residuals. The examiner opined that the claimed scar on the head was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that the Veteran credibly reported the incident that caused the injury and subsequent stitches. In addition, his spouse reported that the Veteran wrote her about the incident at that time. The examiner noted that the Veteran acknowledged that the scar is probably no longer visible since subsequent scars on his face eventually disappeared. Therefore, there is a reported history of a laceration and subsequent scar that has apparently resolved without residual defect. The same examiner addressed the claimed residual lump on his head. The examiner noted that the Veteran has a soft tissue "lump" on the left side of the top of his head. X-ray imaging was noted to show a small prominence of heterotopic bone on the outer table of the skull near the vertex; the skull is otherwise unremarkable. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that the "lump" is a normal phenomenon that occurs in many people and is not a result of an injury. In an August 2017 VA addendum/clarification as to the time the scar resolved, the examiner noted that the Veteran had indicated a previous scar examination, and no one could find a scar. The Veteran specifically noted the laceration was on the back of his head and reported a residual "lump" on the top of his head. The examiner noted that since the scar was on the back of his head, and happened 63 years ago, the Veteran has no way of determining when it "disappeared." Verbal consultation with dermatology at this facility notes that scalp lacerations that are repaired by suture would be difficult to visualize within a year ("being generous"), status post (s/p) treatment in a hair bearing area. Based on the above noted evidence, and applying the benefit-of-the-doubt standard of proof, the Veteran's claim of service connection for a scar on the back of his head is granted. 38 U.S.C. § 5107(b). 2. Service connection for headaches The Veteran contends he currently has headaches related to his active-duty service. See June 2009 VA 21-526 Veterans Application for Compensation. Again, the Board observes no STRs are in the claims file. Post-service treatment records include a May 2012 physician letter to the Veteran noting blood pressure logs indicate the Veteran's blood pressure is running high and he was advised to watch for headache, weakness, and lightheadedness when changing position. A March 2018 VA primary care record noted the Veteran reported an active service injury that resulted in a head scar and headaches. The same record noted that the Veteran's headaches do not require more than over-the-counter pain reliever. The Board reviewed a September 2011 lay statement from the Veteran, wherein he reported a head injury during active service. The Veteran's spouse also referenced the Veteran's headaches in her April 2012 lay statement. She specially noted that the Veteran has complained about periodic headaches since falling off the chair and hitting his head that have required asprin or Tylenol to treat. The claims file includes a December 2016 VA headaches (including migraine headaches) examination. The examiner did not confirm a diagnosis of a headache condition. In the medical history section of the report, the examiner noted that the Veteran stated he has headaches "off and on" for "a while." The Veteran indicated that the headaches worsened after he retired in 1998. The Veteran noted that he experienced a dull squeezing headache pain that typically lasts less than one day. The report noted an August 2016 brain MRI. In a December 2016 medical opinion, the examiner opined that the claimed headache condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale for the opinion, the examiner noted that the absence of STRs prevents a determination of the onset of any confirmed headache condition during service. The Veteran reported minor headaches over the years that seemed to become more noticeable after retirement in 1998. The examiner noted that this is not consistent with the claim of headaches based on an active-duty head injury in 1954. The examiner noted that the history is more suggestive of common minor headaches over the years that are experienced by many people and does not constitute a pathological condition. The examiner noted that the Veteran reported some headaches were related to neck and upper back strain from his post separation civilian occupation. The Board notes that the Veteran and his spouse are competent to report the symptoms experienced including the occurrence and treatment of headaches. Layno, supra. However, the question of whether those headaches are etiologically related to his service is medically complex, and beyond the scope of lay observation; it requires medical training and credentials. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As both the Veteran and his spouse are laypersons, and do not cite to supporting clinical data, a supporting medical opinion, or supporting medical literature, their opinions regarding a nexus between his reported headache condition and service is of minimal probative value. Consequently, the Board gives more probative weight to the opinion of the December 2016 VA examiner who indicated that the reported history of headaches is more suggestive of common minor headaches that are experienced by many people and not a pathological condition. Accordingly, the preponderance of the evidence is against the claim, and service connection for headaches is denied. As the preponderance of the evidence is against a grant of service connection, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for Meniere's disease The Board observes that the Veteran's September 2011 lay statement and his spouse's April 2012 lay statement both indicate that the Veteran is suffering balance issues resulting from an injury during his active service. The claims file includes an October 2011 hearing loss and tinnitus examination wherein the Veteran reported occasional dizziness with head movement. The audiologist noted that the claims file includes a claim of service connection for Meniere's disease, but the Veteran denied ever being diagnosed with Meniere's disease. The claims file also includes a December 2016 VA ear conditions examination. After an in-person examination, the examiner noted that the Veteran does not have a diagnosis of an ear or peripheral vestibular condition. The Veteran reported having had balance problems for a while, but he could not be specific about when the balance issues started. He also reported having fallen several times while working outside. An August 2016 MRI noted multiple small lacunar infarcts within the bilateral cerebellar hemispheres. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the Veteran has not been diagnosed with Meniere's disease, and his symptoms are not consistent with Meniere's disease, an inner ear condition. He does have some balance issues that have been attributed to his neuropathy type complaints, and more recent findings of small infarcts around the brain centers that affect balance. His dizziness when he goes from sitting to standing are more consistent with blood pressure concerns, and he has been advised to follow up with his primary care physician about his blood pressure findings during this visit. Furthermore, the onset of his balance/dizziness concerns in more recent years is not consistent with having a head injury in 1954. The Board notes that the Veteran and his spouse are competent to report the symptoms including dizziness. Layno, supra. However, the question of whether that symptom is a manifestation of Meniere's disease is medically complex, and beyond the scope of lay observation; it requires medical training and credentials. Jandreau, supra. As both the Veteran and his spouse are laypersons, and do not cite to supporting clinical data, a supporting medical opinion, or supporting medical literature, their opinions regarding a nexus between his reported dizziness and service are not competent evidence and lack probative value. Consequently, the Board gives more probative weight to the opinion of the December 2016 VA examiner who indicated that the Veteran does not have a diagnosis of Meniere's disease. Accordingly, the Board finds that the evidence does not support a finding that the Veteran has a current diagnosis of a Meniere's disease at any point throughout the appeals period. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without such evidence, service connection for Meniere's disease cannot be granted. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Although the Board is sympathetic to the Veteran's claim, the preponderance of the evidence is against the claim. Thus, the claim must be denied. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board notes that the Veteran was afforded VA scar examinations in October 2011 and December 2016. After a though review of the examination reports, the Board notes that no left arm scar was identified. However, the Veteran continues to assert that he underwent removal of a growth from his arm during service that resulted in a scar. The examinations are inadequate to assist the Board in deciding on the Veteran's service connection claim. A remand is thus warranted for a new VA scars examination that addresses this claim. Finally, as to the claim for service connection for left arm weakness, the Board notes a June 2013 VA physical therapy treatment record that indicates that the Veteran cannot raise his left arm. The Board notes that the Veteran has not been afforded an examination to address the nature and etiology of any identified arm weakness. Noting that there are no STRs in the claims file, the Veteran should be afforded a VA examination so that not only the nature and symptoms of his arm weakness are clear to the examiner, but also so the examiner has an opportunity to consider the Veteran's lay contentions in rendering a nexus opinion. The matters are REMANDED for the following action: 1. Afford the Veteran with the appropriate VA examination to determine the nature and etiology of his claimed left arm scar. The most up-to-date disability benefits questionnaire should be used, and all indicated tests should be performed. The record must be made available to the examiner for review, and the examination report should note that the claims file was reviewed. The examiner's attention is directed to the Veteran's reported history of having a growth removed from his left arm during service that resulted in a scar. A complete, pertinent history should be obtained from the Veteran. The examiner should provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any identified left arm scar had its onset during or was otherwise caused by active service. All opinions must be supported by a rationale. The Veteran's lay contentions must be fully taken into account, and the absence of in-service evidence of the disability cannot be the sole basis for a negative nexus opinion. 2. As to the left arm weakness claim, afford the Veteran a VA examination with an appropriate medical professional to determine the nature and etiology of his left arm weakness claim. The examiner is asked to provide an opinion thoroughly addressing the Veteran's claim. A complete, pertinent history should be obtained from the Veteran. The examiner should provide an opinion as to whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that any diagnosed arm weakness had its onset during or was caused by his active service. A complete rationale must be given for ALL opinions and conclusions expressed. The examiner is reminded that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinions. The Board notes that the absence of service treatment records cannot be the sole basis upon which a negative nexus opinion is based. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.