Citation Nr: 21070267 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-24 506 DATE: November 23, 2021 ORDER Entitlement to service connection for a headache disability is granted. REMANDED Entitlement to service connection for a respiratory disability, however diagnosed and including as due to exposure to asbestos, is remanded. Entitlement to service connection for a disability characterized by episodes of dizziness with blackouts, including as secondary to service-connected hypertension, is remanded. Entitlement to an initial rating in excess of 10 percent for hypertension with nosebleeds is remanded. FINDING OF FACT The Veteran's current headache disability started during active military service. CONCLUSION OF LAW The criteria for service connection for a headache disability are met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1981 to October 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal of August 2013, October 2014, and March 2016 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2021, the Veteran testified at a hearing before the undersigned. Entitlement to service connection for headaches Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for a headache disability. He submitted private medical records including diagnosis of chronic headaches and migraines without aura. An October 2014 VA headaches examination confirmed a diagnosis of tension headaches. He testified that he currently experiences "extremely severe" headaches. The Veteran is competent to report his observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran testified he experienced headaches during his active service. The service treatment records include an October 1985 report of headaches. In April 1985 and September 1987 examination reports, the Veteran denied experiencing frequent and severe headaches. However, these reports did not assess whether headaches were present during active service; rather, they simply addressed whether any headaches the Veteran experienced in service were frequent and severe. The Veteran testified that his headaches continued from his active service to the present. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the current headache disability began during active military service. Entitlement to service connection for a headache disability is warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Gilbert, supra. REASONS FOR REMAND During the April 2021 hearing, the Veteran's representative reported that the Social Security Administration (SSA) had issued a determination as to the Veteran's eligibility for SSA disability benefits. Records from the SSA are not yet associated with the Veteran's claims file. As the Veteran seeks VA benefits due to physical disabilities, it appears the SSA records are relevant to his claims. When there has been a determination regarding SSA benefits, the records concerning that decision must be obtained, if relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The outstanding SSA records must be obtained. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Recent case law held 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." Thus, a specific diagnosis is not required to establish service connection for symptoms that result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). 1. Entitlement to service connection for a respiratory disability, however diagnosed and including as due to exposure to asbestos, is remanded. Although the Veteran initially sought service connection for chronic bronchitis, the scope of his claim includes any respiratory disability that is reasonably encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim."). Accordingly, this claim has been recharacterized as one seeking service connection for a respiratory condition, however diagnosed. In April 2021, the Veteran testified that, over the appeal period, he used an inhaler, his doctors told him he had bronchitis, he sought emergency room treatment for a respiratory problem, and his pulmonologist (Dr. J. F.) had diagnosed chronic obstructive pulmonary disease (COPD) and emphysema. He submitted private treatment records documenting diagnoses of COPD with emphysema and obstructive sleep apnea. His service treatment records include dental questionnaires from October 1981, August 1986, and August 1987 with the Veteran's reports of sinus problems; a February 1983 asbestos medical surveillance program respiratory questionnaire with reports of cough, phlegm, shortness of breath, chest colds, and wheezing; an April 1985 reenlistment examination report of ENT (ear, nose, or throat) trouble; and, a May 1986 treatment note indicating a diagnosis of bronchitis. The Veteran's in-service exposure to asbestos is conceded based on his service as a boatswain's mate. The Veteran also submitted a May 2016 statement and medical literature indicating a link between exposure to asbestos and chronic bronchitis. A July 2013 VA sinusitis, rhinitis and other conditions of the nose, throat, larynx, and pharynx examination was provided to evaluate the claim. The examiner diagnosed sinusitis and rhinitis. He noted the Veteran's reported history of having a stopped up and runny nose and of having asthma symptoms since approximately September 2011. However, he opined the current sinusitis and rhinitis conditions were less likely than not causally related to active service because there was no objective documentation of a nasal or sinus condition in the service treatment records. The Veteran is competent to report his experience of a runny nose and sinus symptoms. See Jandreau, supra. The examiner did not provide any rationale for dismissing the in-service reports of sinus problems or the Veteran's recollection of having a stopped up and runny nose. Accordingly, the opinion is not based on the Veteran's complete medical history and it is inadequate to evaluate the claim. See Stefl, supra. A VA second respiratory conditions examination was provided in March 2016. The examiner found the Veteran had an acute episode of bronchitis in April 2015, but he had not been diagnosed with chronic bronchitis. She opined chronic bronchitis was less likely than not causally related to active service because it was not diagnosed. She also stated there was no diagnosis of asbestosis. As noted above, the Veteran seeks service connection for any respiratory condition diagnosed and there is evidence that other respiratory conditions, including sinusitis, rhinitis, COPD/emphysema, and sleep apnea, were diagnosed over the appeal period. The March 2016 examination did not evaluate whether these conditions or other respiratory disabilities were causally related to the Veteran's service. The examination and etiology opinion are inadequate to evaluate the claim. Id. 2. Entitlement to service connection for a disability characterized by episodes of dizziness with blackouts, including as secondary to service-connected hypertension, is remanded. The Veteran seeks service connection for a disability characterized by episodes of dizziness with blackouts. He submitted private treatment records which list near syncope as an active problem. The Veteran testified that every day he becomes lightheaded to the point of blacking out. He testified that he experienced dizziness in service. After separating from service, he continued to have periods of dizziness which became more intense approximately 15 years ago. The service treatment records include an October 1985 report of dizziness, August 1986 and August 1987 dental questionnaires with reports of dizziness, and a September 1987 separation examination including the Veteran's report of dizziness. The service treatment records also show the Veteran fell and hit his head in February 1983 and was struck in the eye by a foreign object in October 1983. In July 2013, a VA central nervous system examination was provided to evaluate the claim. The examiner did not diagnose any central nervous system disability. He stated he was unable to opine as to the etiology of the Veteran's dizziness without speculation because reports of dizziness were subjective. As a layperson, the Veteran is competent to describe feeling dizzy. The examiner dismissed his competent reports without providing any rationale for doing so. The examiner did not consider the complete medical history. See Jandreau, supra; see also Stefl, supra. In addition, the examiner did not consider whether the Veteran's dizziness constituted a disability based on functional impairment of earning capacity. See Saunders, supra. A second VA central nervous system examination was provided in March 2016. The examiner did not diagnose any central nervous system disability. She opined a dizziness/blackout condition was less likely than not proximately due to service connected to hypertension. In support she stated, although there were reports of dizziness connected to elevated blood pressure, the Veteran's blood pressure had been under control since September 2015. This opinion does not address whether hypertension caused dizziness at any time over the appeal period (from April 2012.) The examiner did not address whether hypertension aggravated the Veteran's dizziness. An opinion regarding secondary service connection is inadequate if it does not address both causation and aggravation of the nonservice-connected condition. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). The service treatment records include treatment for head injuries and reports of dizziness during the Veteran's active service. However, the examiner did not opine as to whether a dizziness condition was directly related to the Veteran's active service. The etiology opinion is incomplete and inadequate to evaluate the claim. See Stefl, supra. 3. Entitlement to an initial rating in excess of 10 percent for hypertension with nosebleeds is remanded. In April 2021, the Veteran's representative asserted the Veteran's hypertension disability has been "generally far more severe" than assessed. The most recent VA examination evaluating his hypertension condition was provided in March 2016. The representative's statement indicates the Veteran's hypertension may have increased in severity since this examination. A new examination must be provided. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment provider who may have records which have not yet been submitted and are relevant to his claim. Make two requests for any identified and authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for a respiratory disability. The examiner must review the claims file, including the private medical records and medical literature submitted by the Veteran and the April 2021 hearing transcript. The examiner should identify all respiratory conditions diagnosed over the appeal period (including, but not limited to, CPOD, emphysema, obstructive sleep apnea, sinusitis, rhinitis, and bronchitis.) The examiner must respond to the following: Is any respiratory disability (however diagnosed) at least as likely as not related to the Veteran's active service, including reports of respiratory symptoms in service and/or conceded exposure to asbestos? The examiner is advised the Veterans is competent to report his experience of respiratory symptoms. If the examiner dismisses any such reports, a complete rationale for doing so must be provided. The examiner may not dismiss the Veteran's report of symptoms capable of lay observation solely because they were not documented in contemporaneous treatment records. A complete rationale must be provided for all opinions expressed. 4. Schedule the Veteran for a VA examination for a disability characterized by episodes of dizziness with blackouts. The examiner must review the claims file, including the private medical records and medical literature submitted by the Veteran and the April 2021 hearing transcript. The examiner should identify any disability characterized by episodes of dizziness with blackouts that is diagnosed. All appropriate evaluations to identify such disabilities must be provided (including central nervous system evaluations, ear conditions evaluations, and any other appropriate evaluation indicated by the Veteran's symptomatology.) If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. Is any disability manifested by dizziness with blackouts present over the appeal period at least as likely as not related to service, including the multiple in-service reports of dizziness (including an October 1985 report of dizziness, August 1986 and August 1987 dental questionnaires with reports of dizziness, and a September 1987 separation examination including the Veteran's report of dizziness)? Or at least as likely as not related to in-service head injuries documented in February 1983 and October 1983? Is any disability characterized by episodes of dizziness with blackouts at least as likely as not proximately due to service-connected hypertension?? Is any disability characterized by episodes of dizziness with blackouts at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected hypertension? The examiner is advised that causation and aggravation are separate theories of entitlement and should be addressed separately. He or she is further advised that aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation by establishing the baseline of severity of the dizziness condition prior to aggravation. The examiner is advised the Veterans is competent to report his experience of respiratory symptoms. If the examiner dismisses any such reports, a complete rationale for doing so must be provided. The examiner may not dismiss the Veteran's report of symptoms capable of lay observation solely on the basis that they are not recorded in contemporaneous treatment records. A complete rationale must be provided for all opinions expressed. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension with nosebleeds. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.