Citation Nr: 21025151 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-42 344 DATE: April 27, 2021 ORDER Entitlement to service connection for residuals of a left-hand index finger injury is denied. Entitlement to service connection for a migraine disorder is denied. Entitlement to service connection for peripheral neuropathy, left upper extremity, is denied. REMANDED Entitlement to service connection for peripheral neuropathy, right upper extremity, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for sinusitis with associated headaches is remanded. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran had an in-service injury to his left-hand index finger. 2. The evidence of record does not establish that the Veteran has a separate migraine disorder apart from the migraines he experiences as a residual of his sinusitis. 3. The evidence of record does not establish that the Veteran had an in-service injury to his left upper extremity to which his left upper extremity peripheral neuropathy may be related. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a left-hand index finger injury have not been met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 2. The criteria for entitlement to service connection for a migraine disorder have not been met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). 3. The criteria for entitlement to service connection for peripheral neuropathy, left upper extremity, have not been met. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Air Force from September 1972 to May 1973. His DD214 confirms he was discharged under honorable conditions. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for a migraine disorder. The Veteran contends that service connection is warranted for a migraine disorder. His service treatment records show that during service, he experienced sinusitis with associate headaches. See e.g. March 1973 Service Treatment Records. However, these records do not show that he experienced headaches outside of his sinusitis. Indeed, on his administrative discharge examination dated in February 1973, he endorsed frequent or severe headaches. When asked to clarify, he reported experiencing occasional sinus headaches “relieved with mild analgesic, no disability. No comp., no sequelae.” His post-service treatment records also do not document a diagnosable migraine disability. The Veteran has not otherwise submitted any competent medical evidence showing a headache disability separate and distinct from his sinusitis. Although the Veteran is competent to report he has headaches, he is not competent to state that he has a separate headache disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (laypersons are competent to describe symptoms which support a later diagnosis); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Put differently, although a Veteran can state he experiences headaches, the diagnosis of a separate headache/migraine disability is a complex medical question not capable of lay observation. Merely experiencing headaches does not indicate a disability. As a result, the Board has recharacterized the Veteran’s claim for sinusitis to include associated headaches. However, to the extent the Veteran contends that service connection is warranted for a separately diagnosed headache disability, the Board finds that the preponderance of the evidence weighs against his claim. In so finding, the Board has considered the Court’s findings in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the record does not contain any evidence of functional impairment caused by headaches. Thus, service connection is not warranted. The benefit-of-the-doubt doctrine does not apply, and the Veteran’s claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for residuals of a left-hand index finger injury. 3. Entitlement to service connection for peripheral neuropathy, left upper extremity. The Veteran contends that service connection is warranted for a left-hand index finger injury as well as peripheral neuropathy of the left upper extremity. His service treatment records do not document any injury to the left hand or left upper extremity. His February 1973 Report of Medical Examination indicates that his upper extremities were found to be clinically normal. On his Report of Medical History on discharge, the Veteran denied arthritis or bone or joint deformity. Although service treatment records from January 1973 state the Veteran had “numbness in middle fingers” the examiner specifically noted the numbness was in the Veteran’s right hand only. Specifically, the report states “the patient injured right hand December 1972 – can’t use right third digit because of pain and stiffness.” On his VA Form 9, the Veteran contended that his peripheral neuropathy was caused by typing during service. However, post-service treatment records from May 2008 state that the Veteran was experiencing neuropathy symptoms unrelated to trauma. Instead, the examiner felt it was related to the Veteran’s cervical spine. His service treatment records also do not document any injury to his cervical spine. See May 2008 Georgia Department of Corrections Records. In McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this instance, the third element is not met. Indeed, the evidence of record instead indicates that the Veteran’s peripheral neuropathy of the left upper extremity is related to a nonservice-connected disability. Even assuming that the Veteran has a diagnosis related to his left hand as well as left upper extremity peripheral neuropathy, he has no in-service injury of which those disabilities may be related to and the evidence weighs against finding that his left hand disability and left upper extremity peripheral neuropathy may be related to service. As such, the benefit-of-the-doubt doctrine does not apply, and the Veteran’s claims must be denied. REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy, right upper extremity, is remanded. As noted above, the Veteran was seen in service for a right-hand injury in January 1973. He was noted to have extension tendonitis of the right hand. He was directed not to type or to use his right hand heavily. Later records from January 1973 confirm that the Veteran had numbness in his right-hand following injury. X-rays at the time were normal. However, given that trauma of the joint was noted, and the Veteran contends his right upper extremity peripheral neuropathy is related to this trauma, the Board finds that remand is warranted to obtain a VA medical opinion. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. Treatment records from the Georgia Department of Corrections dated in March 2011 document a “history of PTSD” as well as a “past history of anxiety.” The Veteran’s service treatment records show that he was given an administrative discharge as he “ha[d] severe problems of adjusting to the Air Force. He feels he cannot find satisfaction as a human being while in the military. He resorts to drugs to cope with stress filled situations.” Psychiatric examinations conducted in March and April 1973 did not reveal any psychiatric illness (i.e. no psychosis or psychoneurosis). The examiner did, however, state: [The Veteran] does possess a personality disorder of some severity. This is manifested by passive obstructionism, conflict with authority, poor impulse control, inordinate closeness with family, and difficulty in adjusting ot the military regimen . . . He has already received two Article 15’s and is facing another. He flatly states he will continue to violate rules and regulations until he is separated. In July 2008, the Veteran submitted a statement indicating that he was physically assaulted in service and “warned” that he would receive further injury if he spoke to anyone concerning his assault. Given that the Veteran experienced documented psychiatric issues during service, the Board finds that remand is warranted to afford him to a VA examination to determine the etiology of any currently diagnosed psychiatric disorders. 3. Entitlement to service connection for sinusitis with associated headaches is remanded. The Veteran contends that his sinusitis is related to service. His service treatment records document several instances of sinusitis with associated headaches. For example, records from the Keesler USAF Medical Center Emergency Room dated in February 1973 state “sinusitis probable. Has had previous problems with sinusitis.” Later records dated in March 1973 state “sinus congestion x 3 days.” On his Report of Medical History on Administrative Discharge in February 1973, the Veteran endorsed having sinusitis. He denied having such on enlistment. See May 1972 Report of Medical History & Examination. To date, he has not been afforded a VA examination. As such, remand is necessary. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 identifying any outstanding private treatment records. Any attempts to obtain such records must be clearly documented in the claims file. A May 2020 Notice indicates that the Veteran’s probation was revoked, and he is currently incarcerated. Previously, the Veteran indicated to the Board that the jail he was in had access to telehealth. The RO must make all attempts to first determine whether the Veteran continues to be incarcerated and if so, the RO must provide documentation that it has made substantial attempts to schedule and conduct the requested examinations and have exhausted all possible venues for obtaining access to the incarcerated veteran for the examination. 2. Next, schedule the Veteran for a VA examination to determine the nature and etiology of his right upper extremity peripheral neuropathy. If, and only if, an in-person examination (including via telehealth) is determined to be infeasible, the RO should forward the Veteran’s file to an appropriate clinician to render a medical opinion. After reviewing the entire claims file, the examiner is asked to opine whether the Veteran’s right upper extremity peripheral neuropathy is at least as likely as not related to service. In so opining, the examiner must discuss the relevance, if any, of the January 1973 service treatment records indicating a diagnosis of extension tendonitis and whether this is something that resolves or is likely to be a chronic disability. A complete rationale for any medical opinion rendered must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). If, and only if, an in-person examination (including via telehealth) is determined to be infeasible, the RO should forward the Veteran’s file to an appropriate clinician to render a medical opinion. (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the Veteran’s claimed in-service stressor. (b) Because the Veteran’s stressor is based on an in-service personal assault - the examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. (c) If the Veteran is diagnosed with a personality disorder and PTSD - the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. (d) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. In so opining, the examiner must consider the March 1973 Mental Health Evaluation whereby it was determined that “examination revealed no psychiatric illness” and instead, Veteran possessed “a personality disorder of some severity.” The examiner should also consider the Veteran’s reports of depression/excessive worry and nervous trouble on discharge. See February 1973 Report of Medical History. A complete rationale for any medical opinion rendered must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his sinusitis. If, and only if, an in-person telehealth examination is determined to be infeasible, the RO should forward the Veteran’s file to an appropriate clinician to render a medical opinion. Although the Veteran did not report sinusitis on entrance, given that he had noted sinus issues within three months of entry into service and his service treatment records indicate he had seasonal sinusitis, after reviewing the entire claims file, the examiner is asked to opine: (a) Is there clear and unmistakable evidence that the Veteran’s sinusitis pre-existed his military service? (b) If so, is there clear and unmistakable evidence that the Veteran’s preexisting sinusitis was not permanently worsened beyond the natural progress of the disability during his military service? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service.” (c) If the answer to either of the above questions is “no,” indicate whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s sinusitis was incurred in or aggravated by service? In so opining, the examiner must consider the February and March 1973 service treatment records indicating sinusitis problems as well as the Veteran’s February 1973 Report of Medical History indicating “sinusitis, seasonal, mild; controlled with antihistamines; non-disabling. No comp, no seq.” A detailed rationale supporting the examiner’s opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.