Citation Nr: 21011673 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-01 625 DATE: March 2, 2021 ORDER Entitlement to service connection for scar, right forehead is denied. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded Entitlement to service connection for neck injury is remanded. Entitlement to service connection for headaches, to include migraines is remanded. Entitlement to service connection for left ear disability is remanded. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has a current right forehead scar. CONCLUSION OF LAW The criteria for service connection for a right forehead scar have not been met. 38 U.S.C. §§ 1110, 11311, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1975 to May 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Regional Office (RO). The Veteran provided testimony during a videoconference hearing before the undersigned in August 2019. A transcript has been added to the claims file. The claims were previously before the Board and remanded for additional development in November 2019. Service Connection Entitlement to service connection for scar, right forehead Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends service connection is warranted for a right forehead scar. As noted in the Board’s remand, Board finds the lay evidence of record to be persuasive of the issue of whether the Veteran experienced a head injury after cliff diving in August 1975. In addition, service treatment records document a second head injury from a motor vehicle accident in January 1976. Pursuant to the 2019 Board remand, the Veteran was afforded a VA Scars examination in September 2020. According to the September 2020 VA examination report and opinion, the examiner indicated that he was unable to see or feel a scar in the Veteran’s right forehead area. He further observed that the reported scar occurred 45 years prior and there were no remnants of such a scar. The diagnosis was normal aging skin changes. Additionally, it was noted that there was a new fresh appearing scratch approximately 8 cm. long above the right eye but the Veteran stated that that was from running into a door frame the day prior to the examination. The weight of the evidence is against a finding that the Veteran has a scar on his forehead. The Board acknowledges that the 1975 “CAMC Hospital” records have not been obtained. However, the examiner accepted the Veteran’s report of having a head injury to the right side of the head above area of temple in 1975 noting that the scar would be 45 years old. However, he was unable to see or feel a scar. Any records from 1975 would show the incurrence of an in-service injury and not the existence of present disability. Thus, the failure to obtain the 1975 records is not prejudicial to the Veteran and is therefore harmless error. Even when considering the Veteran’s statements, the Board finds that a preponderance of the evidence is against a finding that the Veteran has a right forehead scar related to his active service. The Board finds that the weight of the evidence is against the Veteran having a current right forehead scar disability, and the claim for service connection must therefore be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (disallowing service connection where there was no current disability). REASONS FOR REMAND 1. Entitlement to service connection for TBI is remanded 2. Entitlement to service connection for neck injury is remanded. 3. Entitlement to service connection for headaches, to include migraines is remanded. 4. Entitlement to service connection for left ear disability is remanded. As noted in the prior 2019 Board remand, the Veteran reported experiencing a head injury after cliff diving in August 1975 and service treatment records document a second head injury from a motor vehicle accident in January 1976. However, the record remains unclear as to whether the Veteran has a current disability claimed as traumatic brain injury or a left ear disability, as claimed. It is also not clear whether the Veteran’s current symptoms/diagnoses are etiologically related to the in-service head injuries. When VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For the reasons further discussed below, the Board finds that remand is warranted for addendum opinions regarding the claimed disabilities. The Veteran was afforded VA examinations in June and September 2020. Although the June 2020 examiner indicated the Veteran did not have a TBI or residuals thereof, regarding his reported symptoms of dizziness, black out, confusion, difficulty concentrating, and falls, the examiner opined that such was not related ot service because there is no evidence of the above symptoms on separation exam. Regarding the Veteran’s claimed neck disability, according to the September 2020 VA examination report, the examiner indicated the Veteran had a diagnosis of cervical strain and determined that there is no evidence of chronicity of care and symptoms are subjective only and opined that a nexus has not been established. However, the examiner noted the Veteran’s diagnosis of cervical strain and indicated the findings of decreased range of motion in the cervical spine, which contradicts the notation that symptoms are subjective only. Regarding the Veteran’s migraine headaches, the examiner noted that it is difficult to say or pinpoint exactly when these physical complaints started, or what they were related to. The examiner further noted that the March 1976 separation exam does not state that the Veteran was discharged because of headaches or migraines. Rather the reason given was “immature personality disorder, severe & anxiety/depression”. Therefore, he opined that the headaches are not service related. A lack of documented symptomatology is an inadequate rationale, on its own, to refute service connection. See Dalton v. Peake, 21 Vet. App. 23 (2007). Therefore, the aforementioned etiology opinions and rationales are inadequate. Regarding the Veteran’s claimed left ear disability, the September 2020 examiner observed that the Veteran indicates that he suffers with dizziness and instability, inability to walk at times. However, the examiner remarked that these symptoms are related to the Veteran’s headaches and medication treatment because the Veteran did not report these symptoms specifically related to the claimed left ear condition and stated that such happens only when he has a migraine, and left ear symptoms do not change during this time. The examiner also noted that the Veteran denied drainage or pain in the left ear and no chronic diagnosis was made for left ear disability. The examiner stated that the objective exam was normal and symptoms were subjective only; therefore, a nexus has not been established. However, the Board notes that the Veteran reported current symptoms of hearing loud whistling, buzzing and feeling pressure in left ear. While the VA examiner noted the Veteran’s diagnosis to be perforated ear drum, healed, it’s unclear whether the current symptoms of loud whistling, buzzing, and feeling pressure in the left ear amount to a disability and if so whether they are related to his active service. Specifically, it remains unclear whether the Veteran’s statements concerning loud whistling, buzzing, and feeling pressure in the left ear reflect that the Veteran experiences functional impairment of earning capacity, such that the symptoms would qualify as a current disability is unclear. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609 (Vet. App. Aug. 26, 2020) (finding that to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity). Consequently, a VA medical opinion is needed to clarify whether the Veteran has a current left ear disability and/or whether his current symptoms result in functional impairment of earning capacity, and if so, whether such is related to his active service. Lastly, the prior November 2019 Board remand requested for all records of treatment in 1975 at CAMC Health System, which includes the CAMC Memorial Hospital and CAMC General Hospital to be sought in accordance with the regulations. Although the Veteran submitted an additional VA form 21-4142 (Authorization and Consent to Release Information to the VA), there is no indication that request for records of treatment in 1975 at CAMC Health System was made. Remand is therefore required to obtain the 1975 CAMC Health System treatment records and ensure compliance with the November 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. After obtaining any further authorizations deemed necessary, make two requests for the authorized records from CAMC Health System in Charleston, West Virginia, unless it is clear after the first request that a second request would be futile. If a negative response is received, make a formal finding of unavailability. 2. Following receipt of any requested records, return the case to the 2020 VA examiners or a suitable substitute. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion is sufficient. After reviewing the claims file, the examiners should answer the following: a. Does the Veteran have a current disability manifested by symptoms of dizziness, black out, confusion, difficulty concentrating, and falls? If not, the VA examiner should explain why the Veteran’s current reports of symptoms of dizziness, black out, confusion, difficulty concentrating, and falls do not amount to a disability. b. Do the Veteran’s symptoms of dizziness, black out, confusion, difficulty concentrating, and falls result in functional impairment of earning capacity? c. For any current symptoms of dizziness, black out, confusion, difficulty concentrating, and falls causing functional impairment of earning capacity, determine whether they are at least as likely as not related to an in-service injury, event, or disease, including the two in-service head injuries described above. d. Does the Veteran have a current disability manifested by symptoms of loud whistling, buzzing, and feeling pressure in the left ear? If not, the VA examiner should explain why the Veteran’s current reports of symptoms of loud whistling, buzzing, and feeling pressure in the left ear do not amount to a disability. e. Do the Veteran’s symptoms of loud whistling, buzzing, and feeling pressure in the left ear result in functional impairment of earning capacity? f. For any current symptoms of symptoms of loud whistling, buzzing, and feeling pressure in the left ear causing functional impairment of earning capacity, determine whether they are at least as likely as not related to an in-service injury, event, or disease, including the two in-service head injuries described above. g. Provide an opinion as to whether it is at least as likely as not Veteran’s diagnosed migraine headaches and/or cervical strain is at least as likely as not related to an in-service injury, event, or disease, including the two in-service head injuries described above. The examiner(s) must specifically consider the lay evidence of record, as well as the in-service treatment for head and neck pain, headaches, and a laceration of the head. The examiner is advised that an opinion is inadequate if it relies solely on a lack of evidence in service treatment records to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner is also advised that a lack of medical records demonstrating a continuity of care after service cannot form the sole basis of a negative opinion. A thorough explanation must be provided for the opinions rendered. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.