Citation Nr: 21013992 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 09-03 524A DATE: March 11, 2021 ORDER Entitlement to service connection for migraine headaches is denied. Entitlement to a certificate of eligibility for specially adapted housing is denied. REMANDED Entitlement to a disability rating higher than 10 percent for limitation of motion of the left long finger is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 7, 2020 is remanded. FINDINGS OF FACT 1. The Veteran’s migraine headaches disability is not attributable to service. 2. The Veteran does not have service-connected amyotrophic lateral sclerosis; blindness in both eyes; disability from full thickness burns or subdermal burns; loss or loss of use of both upper extremities; loss or loss of use of both lower extremities; loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.303. 2. The criteria for a certificate of eligibility for specially adapted housing have not been met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. § 3.809. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2002 to November 2004. This case was previously before the Board in November 2012, July 2015, and September 2020 and remanded for additional development. In December 2019, the Veteran testified at a videoconference hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In May 2020 the Board remanded the claims for increased rating left long finger; service connection for psychiatric disorder, back, and headaches; TDIU; and specially adapted housing. In an August 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for major depressive disorder with anxious distress and service connection for lumbosacral strain. As these represent grants of the full benefits sought, the issues are no longer before the Board on appeal. In the August 2020 rating decision, the AOJ also granted entitlement to a TDIU, effective July 7, 2020. The Veteran has not expressed disagreement with that award. However, the issue of entitlement to prior to July 7, 2020 is still pending to the extent that it is intertwined with the increased rating claim. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). For that reason, the issue of entitlement to TDIU prior to July 7, 2020 will be addressed herein. 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; 38 C.F.R. § 3.303(a). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for migraine headaches is denied. The Veteran contends that he started having headaches in 2004 while he was in service and that they have continued since service. See December 2019 Board hearing transcript at 11. The Veteran has further asserted that as a fueler/motor vehicle operator he was exposed to gas fumes which caused migraine headaches. See August 2007 VA Form 21-526. Moreover, he has reported headaches secondary to blast/chemical explosions during service. The first and second Shedden elements are met; the Veteran has a currently diagnosed migraine headaches disability. See July 2020 VA headaches examination report. Further, the Veteran’s service treatment records (STRs) include a February 2002 report of medical examination at entrance, which indicated the Veteran had normal head and neurologic findings upon clinical evaluation. A November 2004 report of medical examination at separation indicated the Veteran has normal head and neurologic findings upon clinical evaluation. On his November 2004 report of medical history at separation, the Veteran reported being currently in good health. He also reported that he now has or has ever had frequent or severe headaches. The examiner’s summary and elaboration indicated the Veteran’s headaches were related to open fuel. The Veteran’s service personnel records indicate his military occupation specialty (MOS) was a Petroleum Supply Specialist. See Form DD-214. As such, the crux of the case centers on whether the Veteran’s migraine headaches disability is related to service. In this regard, in support of his claim the Veteran submitted a March 2019 private medical opinion from private physician, Dr. J.P., who opined that the Veteran started having chronic headaches after blast/chemical exposure in the military. However, the Board notes that Dr. J.P.’s March 2019 opinion is of limited probative value as the doctor did not explain what evidence supported this conclusion or reference any clinical data or other evidence as rationale for the opinion. By contrast, the July 2020 VA examiner opined that the Veteran’s headaches condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that although a November 2004 STR report of medical examination has headaches listed under comments, there are no other records to show where Veteran complained or was treated or diagnosed with headaches. The examiner explained that chronicity is not established. The Board finds the VA examiner’s opinion highly probative as the examiner provided a plausible rationale and her conclusions are based on a thorough review of the available claims file and physical examination of the Veteran. The Board notes that the examiner indicated that she reviewed the claims file, which includes review of the Veteran’s service treatment records, hearing testimony, lay statements, complaints, diagnoses, and report of medical history at separation. Thus, by incorporation her opinion is based on a review of the complete record, to include the Veteran’s reported exposures in service. The Board observes that it is within the province of a qualified professional to determine the significance of evidence, which the VA examiner did in this case, concluding that the Veteran’s migraine headaches disability is not related to the claimed in-service injury, event, or illness. The Board finds that the July 2020 VA headaches examination report and opinion provide adequate bases upon which to make a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board has considered the Veteran’s assertions that his migraine headaches disability began in service and that his symptoms have continued since service. However, the Veteran’s post-service medical treatment records first document headaches in February 2008, more than three years after the Veteran’s separation from active service. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). Further, in assessing the service connection claim, the Board has considered the lay assertions of record attributing the Veteran’s migraine headaches disability to service. Lay persons are competent to offer testimony regarding observable symptomatology and the Veteran is competent to pain or discomfort regarding his head and headaches. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the Veteran’s migraine headache disability, to include whether it is related to service, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his headache symptoms, any opinion regarding whether his migraine headaches disability is related to his military service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Thus, the Board finds that the question of whether the Veteran’s migraine headache disability is related to his active military service is too complex to be addressed by a layperson as such connection or etiology is not amenable to observation alone. Hence, the Veteran’s opinion of the etiology of his migraine headaches disability is not competent evidence and is entitled to low probative weight. While the Board has considered the Veteran’s statements, it gives greater weight to the objective medical evidence and the opinion of the July 2020 VA examiner. Therefore, the preponderance of the evidence is against the claim for service connection for migraine headache disability; thus, the benefit of the doubt rule does not apply. Accordingly, service connection for migraine headaches must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 54-56. 2. Entitlement to a certificate of eligibility for specially adapted housing is denied. The Veteran occasionally uses a cane(s) and regularly uses a brace(s) as a normal mode of locomotion. See July 2020 VA back examination report. He generally asserts entitlement to a certificate of eligibility for specially adapted housing. The Veteran’s service-connected disabilities include major depressive disorder with anxious stress, rated 70 percent disabling; lumbosacral strain, rated 20 percent disabling; limitation of motion, residual of laceration of the distal phalanx of the left long finger, rated 10 percent disabling; tender scar, residual of laceration of the distal phalanx of the left long finger, rated 10 percent disabling; and scar, head to toe (all linear), rated noncompensable. See August 2020 rating code sheet. He is in receipt of a total disability rating (TDIU). Id. A certificate of eligibility for specially adapted housing is available to a veteran who has a permanent and total service-connected disability due to: (1) amyotrophic lateral sclerosis rated as 100 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8017; (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; (3) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or (4) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbows. The certificate of eligibility is also available to a veteran with a permanent and total disability that precludes locomotion without the aids of braces, crutches, canes, or a wheelchair due to: (5) the loss, or loss of use, of both lower extremities; (6) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, (7) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809(a), (b), (d). The phrase “preclude locomotion” is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809 (c). The U.S. Court of Appeals for Veterans claims (Court) has found that the term “loss of use” in the context of specially adapted housing claims generally means “a deprivation of the ability to avail oneself of the anatomical region in question.” Jensen v. Shulkin, 29 Vet. App. 66 (2017). The Court also identified four elements that must be satisfied to establish entitlement to specially adapted housing based on loss of use of the lower extremities: “That the individual must (1) have a permanent and total service-connected disability (2) due to a disorder that (3) involves both lower extremities and (4) causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. Jensen, 29 Vet. App. 66. Regarding the specially adapted housing claim, it is neither shown nor alleged that the Veteran has amyotrophic lateral sclerosis, blindness in both eyes or service-connected disability due to full thickness or subdermal burns. Similarly, service-connected disability is not shown or alleged to result in loss of use of both upper extremities that precludes use of the arms at or above the elbows. Notably, the Veteran is service connected for left long finger disability and related left finger scar, but he is not service connected for any right upper extremity disability or disability related to the right upper extremity. Thus, the Veteran does not have service-connected disability that results in loss or loss of use of both upper extremities. In so finding, the Board recognizes that the appeal concerning entitlement to an increases rating for left long finger is being remanded. However, as the Veteran does not have any service-connected disability related to the right upper extremity, the evidence does support nor has the Veteran specifically alleged service-connected disability that result in loss of use of both upper extremities that precludes use of the arms at or above the elbows. Also, a service-connected disability is not shown to result in loss of use of either lower extremity. In this regard, the Veteran does not have any service-connected lower extremity disability. The Board notes the Veteran is service connected for lumbosacral strain. However, the evidence does not support, and the Veteran does not specifically allege, that this service-connected disability precludes him from using either lower extremity. In this regard, the July 2020 VA back examination report indicated the Veteran uses a back brace and cane for support with lumbar spondylosis. However, his straight leg raising test was negative bilaterally and he did not have radiculopathy or any other signs or symptoms of radiculopathy. See July 2020 VA back examination report. Accordingly, the medical evidence of record does not support that the service-connected lumbosacral strain disability results in loss of use of any lower extremity. On these bases, the Veteran is not shown to have a permanent and total service-connected disorder due to loss or loss of use of both upper extremities or that involves any lower extremity that causes a loss of use so severe that it precludes locomotion without the regular and constant use of assistive devices. See Jensen, 29 Vet. App. 66. In sum, the Veteran does not have service-connected amyotrophic lateral sclerosis; blindness in both eyes; disability from full thickness burns or subdermal burns; loss or loss of use of both upper extremities; loss or loss of use of both lower extremities; loss or loss of use of one lower extremity, together with residuals of organic disease or injury which so affect the functions of balance and propulsion; or, loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion. Thus, specially adapted housing may not be awarded based on such loss of use, to include the combination of such loss with loss of use of an upper extremity or residuals of organic disease or injury. 38 C.F.R. § 3.809(b). Accordingly, considering all pertinent criteria, the Board does not have a basis for granting entitlement to a certificate of eligibility for specially adapted housing. 38 C.F.R. § 3.809 (b)(1-6), (d). The Board empathizes with the Veteran’s claim as it is evident that he wants to improve his quality of life by better adapting his home environment to meet his needs. However, the Board is bound to follow the controlling regulations. Because these regulations do not allow for an award of specially adapted housing based on the disabilities for which the Veteran is service connected, the claim must be denied. REASONS FOR REMAND 1. Entitlement to a disability rating higher than 10 percent for limitation of motion of the left long finger is remanded. The Board regrets the additional delay but finds that remand of the claim for left long ring finger is again necessary. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2020, the Board remanded to claim for increased rating for left long ring finger for VA examination. Significantly, the Board explained that as best the Board could discern from both the record and the Veteran’s December 2019 Board hearing testimony, the Veteran asserts that the current 10 percent evaluation does not take into account his symptoms of nerve damage including decreased grip strength, tingling, burning, hand locking, and occasional paralysis, which result in decreased function of the left hand. Thus, the Board found that remand was needed and directed that on remand, the Veteran be scheduled for VA examination to ascertain the current severity of his service-connected left long finger disability. Any appropriate evaluations, studies, and testing deemed necessary should be conducted, and the results included in the examination report. The examiner must use the appropriate Disability Benefits Questionnaire (DBQ) and provide a full description of impairment associated with the left long finger disability and its impact on occupational and everyday functioning. The Board further directed that the examiner should describe all symptoms and findings reasonably attributable to the Veteran’s service-connected left long finger disability. Any disabling manifestations specifically attributable to the left long finger disability must be fully outlined and differentiated from symptoms caused by his non-service-connected left carpal tunnel syndrome. If it is the examiner’s opinion that the Veteran’s reported decreased grip strength tingling, burning, hand locking, and occasional paralysis are the result of any other process not related to service-connected left long finger disability, a rationale must be provided to fully explain why. If the examiner cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. Thereafter, the Veteran was afforded a July 2020 VA hand and finger examination; however, the examiner did not describe all symptoms and findings reasonably attributable to the Veteran’s service-connected left long finger disability and did not address whether there were any disabling manifestations specifically attributable to the left long finger disability or differentiated from symptoms caused by his non-service-connected left carpal tunnel syndrome. Instead, the VA examiner stated, “Although abnormal findings were found for the [V]eteran’s non-claimed extremity, they are outside the scope of the current exam request, therefore, no diagnosis or statement regarding a possible relationship between the two joints; conditions was rendered.” In this regard, the Board finds the VA examiner did not sufficiently address whether the Veteran’s reported decreased grip strength tingling, burning, hand locking, and occasional paralysis are the result of any other process not related to service-connected left long finger disability, a rationale must be provided to fully explain why. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand for VA addendum opinion is needed. 2. TDIU prior to July 7, 2020 is remanded. As the claim for a TDIU prior to July 7, 2020 is inextricably intertwined with the remanded claim for increased rating for left long finger, the TDIU matter is also remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Then, the Veteran’s claims files should be forwarded to an appropriate clinician to review the claims file and provide an addendum opinion for the claim for increased rating for left long finger. The clinician must use the appropriate Disability Benefits Questionnaires (DBQs) and provide a full description of impairment associated with the left long finger disability and its impact on occupational and everyday functioning. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. The VA clinician is asked to respond to the following: (a) Describe all symptoms and findings reasonably attributable to the Veteran’s service-connected left long finger disability. (b) Any disabling manifestations specifically attributable to the left long finger disability must be fully outlined and differentiated from symptoms caused by his non-service-connected left carpal tunnel syndrome. (c) The clinician should address the Veteran’s reported decreased grip strength tingling, burning, hand locking, and occasional paralysis. If the clinician determines any of these symptoms are present, the clinician should determine whether they are the result of any other process not related to service-connected left long finger disability. A complete rationale for all opinions expressed is should be provided. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. If necessary, after the foregoing development has been completed, refer the matter of the Veteran’s entitlement to a TDIU, prior to July 7, 2020 to the Director of Compensation for extraschedular consideration with respect to any portion of the period on appeal where the regular schedular standards have not been met. 38 C.F.R. § 4.16(b). (CONTINUED ON NEXT PAGE) 4. After completing the above action and any other necessary development, the claims must be readjudicated. If any claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.