Citation Nr: 21027234 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-55 981A DATE: May 5, 2021 ORDER Service connection for residuals of a head injury (claimed as shrapnel in forehead) is denied. Service connection for left ankle scar is denied. REMANDED Entitlement to service connection for hypertension to include as due to herbicide exposure and/or secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran had a head injury in service or that the small metallic foreign body the midline left frontal scalp noted in a 2014 MRI, headaches, and tenderness of the forehead began during active service, or are otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that left ankle scar began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a head injury (claimed as shrapnel in forehead) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left ankle scar are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1969 to April 1973 and from November 1977 to November 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2017 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for hypertension, residuals of a head injury (claimed as shrapnel to forehead), and left ankle scar. The Veteran's notice of disagreement (NOD) was received in June 2017. The RO issued a statement of the case (SOC) in September 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2017. In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. Service Connection Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for residuals of a head injury (claimed as shrapnel in forehead). The Veteran contends that he has shrapnel in his forehead that results in headaches and his forehead is tender to palpation. See November 2016 claim and January 2021 Hearing Transcript. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. A March 2014 MRI shows small metallic foreign body the midline left frontal scalp; however, the preponderance of the evidence is against finding that it is related to an in-service injury or event. Regarding whether the Veteran has a current diagnosis of the claimed disability, a March 2014 MRI of the brain documents a nonspecific susceptibility artifact associated with the para midline left frontal scalp or calvarium, suspicious for small metallic foreign body and limiting local evaluation. There is no competent medical evidence of record that attributes the Veteran's symptoms of headaches and forehead tenderness to the metallic foreign body documented in the March 2014 MRI. The Veteran's service treatment records do not document that the Veteran complained of or received treatment for shrapnel to the head or other head injury during active duty service. In this regard, the Veteran reported a history of head injury in an April 1969 Report of Medical History form as part of his enlistment examination. There is a notation that he sought treatment at Brighton Hospital after a car fell on him and he had four stitches in his hand and four in his head. The physician noted that the Veteran was not unconscious. The Veteran's also stated that he was involved in a fight and received six stitches above his left eye at St. Anthony's Hospital. The physician determined that the there was no sequelae regarding the stitches the Veteran had received in his head. There is no documentation in the Veteran's service treatment records that he sought treatment for shrapnel wounds to the head. Furthermore, the Veteran's separation examination in April 1973 documents that the Veteran's head, face, neck, and scalp were evaluated as clinically normal and his neurological evaluation was normal. There was also no evidence of any identifying scars on the Veteran's head. The Veteran denied a history of head injury in the October 1977 Report of Medical History as part of the Veteran's entrance examination. An October 1977 re-enlistment examination notes that the Veteran's head, face, neck, and scalp were evaluated as clinically normal and his neurological evaluation was normal. A November 1979 examination shows the Veteran's head, face, neck, and scalp were evaluated as clinically normal and his neurological evaluation was normal. A December 1982 Report of Medical History reveals the Veteran denied a history of head injury. A December 1982 enlistment examination for the Reserves shows the Veteran's head, face, neck, and scalp were evaluated as clinically normal and his neurological evaluation was normal. Thus, there is no medical evidence during service that shows that the Veteran had a head injury during active service. The Veteran testified at the January 2021 Board hearing that after he returned from serving on the USS Union, he was flown from California to Tan Son Nhut Air Base in Vietnam. He was then transferred to a compound called Little Annapolis. He was doing roving patrol when someone threw something that exploded causing shrapnel to hit his head. While the Veteran is competent to report that he experienced shrapnel wounds to the head, his lay statements are not credible due to internal inconsistency and inconsistency with other evidence in the record. Specifically, the Veteran's lay statements regarding experiencing a head injury in service during patrol of a military compound conflict with the medical evidence and other lay statements provided by the Veteran in the claims file. In this regard, as noted above, the Veteran did not seek treatment for shrapnel injury service; and, notably, it is reasonable to infer that the type of injury that would result in metal being impeded in the Veteran's head would likely require treatment at the time of the incident, even in a combat situation. Moreover, it is also reasonable to infer that, at the very least, the Veteran would have reported the incident during the separation examination from active duty service. The Veteran specifically denied having a head injury and headaches in the Report of Medical History forms in October 1977 and December 1982. Furthermore, the Veteran's service records do not show that the Veteran flew into the Republic of Vietnam or conducted patrol duties at a U.S. military compound. The Veteran was not provided with a VA examination and medical opinion regard whether the shrapnel in his forehead is related to injury or event during active naval service. In this case, there is no medical evidence of traumatic brain injury during active naval service to include shrapnel to the forehead from an explosion and the service records do not show that the Veteran was not involved in protecting the perimeter of a military compound called Little Annapolis in the Republic of Vietnam. Furthermore, as discussed above, the Veteran's lay statements and testimony as to patrolling a military compound and shrapnel hitting his head from an explosion are not credible. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (the Court held that VA was not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service). Accordingly, the low threshold under McLendon has not been met here and VA's duty to provide a VA examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran believes small metallic foreign body the midline left frontal documented in an MRI, headaches, and forehead tenderness are related to the alleged shrapnel wounds to the head from an explosion during service, the preponderance of the evidence weighs against findings that shrapnel wounds to the head occurred during active duty service. Accordingly, service connection for residuals of a head injury is not warranted. 2. Entitlement to service connection for left ankle scar. The Veteran contends that he has a painful scar on this inside of his left ankle from a wound that occurred during training drills on the USS Union while on active duty. See November 2016 claim. The Veteran testified at the January 2021 Board hearing that he was on a ship when something came flying and hit him in the ankle resulting in a laceration. He did not go to sick and just took care of it himself. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The lay evidence reflects that the Veteran has a scar on his left ankle; however, the preponderance of the evidence is against finding that it is related to an in-service injury or event. Specifically, the medical evidence of record reveals that the Veteran does not have a current medical diagnosis of a scar of the left ankle. Nonetheless, the Veteran is considered competent to report the observable manifestations of a scar on the left ankle. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that a layperson is competent to offer testimony regarding symptoms capable of observation). There is nothing in the claims file to indicate that the lay statements as to having a scar on the left ankle are not credible. Thus, the evidence establishes that the Veteran has a scar on the left ankle. Nonetheless, the Veteran's service treatment records do not document that the Veteran complained of or received treatment for a laceration on or near left ankle during active naval service. A January 1972 service treatment record documents that the Veteran injured his right foot playing football, but there is no evidence of the Veteran seeking treatment for an injury, wound, or laceration to the left ankle or leg. The Veteran's separation examination in April 1973 documents that the Veteran's lower extremity and skin were evaluated as clinical normal. With respect identifying body marks, scars, and tattoos, the physician noted vaccination scar of the upper left arm (VSULA) and circumcision. The Veteran's October 1977 re-enlistment examination documents that the Veteran's lower extremity and skin were evaluated as clinical normal. Regarding identifying body marks, scars, and tattoos, the physician only noted that the Veteran had a scar on the right hand. The Veteran also did not report a history of residuals of a right ankle/leg injury to include a painful scar in the October 1977 Report of Medical History form. A November 1979 examination shows the Veteran's lower extremity and skin were evaluated as clinical normal. The physician documented scar of the right palm and scar of the right index finger under identifying body marks, scars, tattoos. A December 1982 Report of Medical History reveals the Veteran denied a history of head injury. A December 1982 enlistment examination for the Reserves shows the Veteran's documents that the Veteran had scar on the palm of his right hand and his lower extremity and skin were evaluated as normal. Thus, there is no medical evidence during service that shows that the Veteran had an injury or laceration to the left ankle or leg resulting in a scar during active naval service. While the Veteran is competent to report that he experienced laceration to the right ankle that resulted in a scar during active duty, his lay statements are not credible due to inconsistency with other evidence in the record. Specifically, the Veteran's lay statements regarding experiencing a laceration or wound to the left leg in service are in consistent with the medical and lay evidence during service. In this regard, as noted above, the Veteran did not seek treatment for a laceration or wound to the left ankle during service. Furthermore, the Veteran did not report the incident in the Report of Medical History forms dated in October 1977 and December 1982. Finally, the physical examinations conducted in April 1973, October 1977, and December 1982 did not document a history of laceration to the left ankle or any residual scar of the left ankle or leg. The Veteran was not provided with a VA examination and medical opinion with respect to whether the current left ankle/leg scar is related to an injury or event during active naval service. In this case, there is no medical evidence of laceration, wound, or injury to the left ankle or left leg during active naval service. Furthermore, as discussed above, the Veteran's lay statements and testimony as to experiencing a wound or laceration to the leg in service are not credible. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (the Court held that VA was not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service). Accordingly, the low threshold under McLendon has not been met here and VA's duty to provide a VA examination has not been triggered. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c), 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran believes that his current scar of the left ankle or left leg is related to an injury to the left ankle/leg in service, the preponderance of the evidence weighs against findings that such injury occurred during active duty service. Accordingly, service connection for laceration of the left ankle is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension to include as due to herbicide exposure and/or secondary to service-connected posttraumatic stress disorder (PTSD). The Veteran contends that his hypertension began during service. He also asserts that his hypertension is related to exposure to herbicide agents. During the Board hearing, the Veteran testified that in the alternative his hypertension is related to his service-connected PTSD. The RO conceded that the Veteran was exposed to herbicide due to his service on the USS Union and USS St. Louis. The Veteran indicated that he went ashore with landing craft. The RO noted that the USS Union and USS St. Louis during the Veteran's times were listed as ships operating on the Veteran's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies and troops ashore. The Veteran also submitted an article in October 2019 titled, "Hypertension Linked to Agent Orange." Furthermore, although VA has not conceded a relationship between hypertension and Agent Orange, the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 11 (2018) documents that after an examination of the literature that had been previously reviewed with additional new evidence, the committee determined that there is sufficient evidence of an association between hypertension and at least one of the chemicals of interest. The Veteran was provided with a VA examination and medical opinion in January 2017. The examiner provided the opinion that the Veteran's hypertension as less likely than not that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran has high blood pressure that is being treatment with propanolol and lisinopril with suboptimal blood pressure control. His service treatment records are silent for high blood pressure while on active duty and his blood pressure while on active duty was normal. Moreover, the Veteran had normal blood pressure until 2011. However, the medical opinion is incomplete. Specifically, the examiner did not address the diagnosis of hypertension in the April 1973 separation examination. Furthermore, the medical opinion did not address whether the Veteran's hypertension was caused by or related to exposure to herbicides during active naval service or secondary to his service-connected PTSD. Accordingly, a remand is necessary to obtain a new VA examination and medical opinion. The matters are REMANDED for the following action: Obtain a VA medical opinion with respect to the Veteran's service connection claim for hypertension. Only provide an examination if one is deemed necessary by the medical specialist. The contents of the entire, electronic claims file to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should reflect full consideration of the Veteran's documented medical history and lay assertions. The medical specialist is requested to review all pertinent records associated with the claims file and offer an opinion on the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension had its onset in or is otherwise related to active service to include the documented diagnosis of hypertension in the April 1973 separation examination. (b.) If the answer to (a) is negative, whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is etiologically related exposure to herbicides to include Agent Orange during active service. (c.) If hypertension is deemed not to have had its onset during or is otherwise related to active service to include exposure to herbicides during active service, then whether the Veteran's hypertension (a) was caused by; OR (b) is or has been aggravated (worsened beyond the natural progression) by the Veteran's service-connected PTSD to include any medication to treat such disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. A complete, clearly stated rationale for the conclusions reached-to include identification of evidence and medical authority relied upon-must be provided. The medical specialist should discuss the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 11, Chapter 10 Metabolic and Cardiovascular Disorders (2018), the medical article submitted by the Veteran in October 2019, and all other medical literature and/or studies used in offering his or her opinion. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.