Citation Nr: 22015131 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-56 603 DATE: March 16, 2022 ORDER The appeal for entitlement to service connection for an enlarged prostate has been withdrawn. The appeal for entitlement to service connection for a right foot disability has been withdrawn. Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. During a November 2021 Board hearing and prior to the promulgation of a Board decision, the Veteran and his representative stated that the Veteran wished to withdraw his appeal for entitlement to service connection for an enlarged prostate and a right foot disability. 2. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed headaches began during his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for an enlarged prostate and the appeal for entitlement to service connection for a right foot disability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1967 to June 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife testified before the undersigned Veterans Law Judge at a November 2021 Virtual hearing. A transcript of this hearing is of record. Following the October 2017 statement of the case, the Veteran submitted additional evidence in support of his appeal. The Veteran filed his substantive appeal in October 2017. Accordingly, under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, this evidence is subject to initial review by the Board, because the Veteran did not request in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105(e)(1) (2018). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's favorable decision in granting service connection for headaches, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Dismissal 1. The appeal for entitlement to service connection for an enlarged prostate 2. The appeal for entitlement to service connection for a right foot disability A substantive appeal may be withdrawn on the record at a hearing. Acree v. O'Rourke, 891 F.3d 1009, 1013-14 (Fed. Cir. 2018). A withdrawal on the record at a hearing must be explicit, unambiguous, and done with full knowledge of the consequences. Id.; see also DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). In this case, at the November 2021 Board hearing, the presiding VLJ stated that during the pre-hearing conference, the Veteran and his representative had withdrawn the appeal for entitlement to service connection for an enlarged prostate and a right foot disability. The presiding VLJ further stated that the remaining issues on appeal were entitlement to service connection for a neck disability, a back disability, and a headache disability. The Veteran then explicitly and unambiguously agreed that he wished to withdraw the appeal for entitlement to service connection for an enlarged prostate and a right foot disability; thus reaffirming his withdrawal with the knowledge that the issues would no longer be part of his appeal. As the Veteran has explicitly and unambiguously withdrawn his appeal with full knowledge of the consequences, the Board no longer has appellate jurisdiction and can take no further action on these matters. 38 C.F.R. § 19.55; Acree, 891 F.3d at 1013-14. Accordingly, the appeal of the issues of entitlement to service connection for an enlarged prostate and a right foot disability are dismissed. Service Connection 3. Entitlement to service connection for headaches The Veteran asserts that his current headaches developed during active duty service. At the November 2021 Board hearing, the Veteran testified that during service, he was mostly out in the field performing his job, where he was clearing the fields, which was three to six miles away. Because he was never near a medical facility, he self-medicated with asprin that he obtained from medics to treat his headaches. He said the asprin was his only source of medication. Following service, in December 1969, the Veteran reported that he was hospitalized at a VA hospital in Southern California, because he had severe headaches. He said that he was given phenobarbital tablets and discharged after two weeks. Because the Veteran felt as if had not been treated well, he did not return to VA for treatment for his headaches until 2016. He continued to experience severe headaches. In 2017, the Veteran said that VA provided him with an alpha stim to treat his headaches, which he used when he felt a headache forming. He said the equipment reduced his headaches, and he went to lay down in a dark room. He said that he had headaches two to three times a month, rated at 9 out of 10 and caused him to be nauseous and experience pain behind his eyes. At the November 2021 Board hearing, the Veteran's wife, who had been married to the Veteran since January 1970, testified that she had observed him experiencing headaches for their "whole married life." She described how one month, the Veteran would not have headaches and then sometimes, he would have migraines where he was "out for a few days, even while he worked." Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The question before the Board is whether the Veteran's headaches are etiologically related to his active duty service. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor the Veteran, the Board finds that service connection for headaches is warranted. The Veteran's service treatment records (STRs) reflect that he entered active duty service with no documented headaches. See November 1966 Pre-Induction Examination. Upon discharge, on an April 1969 report of medical history, the Veteran reported having frequent or severe headache. The examiner noted that the Veteran had occasional and mild headaches, which were relieved by medication. Available VA treatment records in 2016 document that the Veteran sought treatment for and complained of having headaches. See August 2016 and September 2016 VA treatment records. There are no further treatment records documenting complaints or treatment for headaches. The record does not include complete VA treatment records following January 2018. However, in a February 2018 VA treatment record provided by the Veteran, the record shows that the Veteran was provided an alpha stim, but it was specifically used to treat his knee and low back pain. The available VA treatment records also do not contain an etiological opinion. Nevertheless, the Board finds that there is sufficient evidence of record to decide the claim. On that basis, initially, the Board notes that the record does not reflect a clinical diagnosis for headaches. Yet, subjective reports of headaches were made by both the Veteran and his wife describing the nature and extent of those headaches. Lay testimony is competent as it relates to symptoms which are observable through the use of one of the five senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As headaches are observable through the five senses, these subjective reports, which are both competent and credible, are sufficient to establish a current diagnosis for headaches. Thus, the Board finds that a current diagnosis for headaches is established. Further, the Board finds that the account from the Veteran and his wife of the Veteran's in-service headache symptoms and subsequent history of continuous headache symptoms appears to be both competent and credible. See Layno v. Brown, 6 Vet. App. at 469-70. Notably, the Veteran's STRs document that upon separation, the Veteran had reported having frequent and severe headaches, which were also noted by the examiner to be occasional and mild. Although the available VA treatment records do not document further treatment until 2016, the Veteran reported that he continued to experience headaches following service. Overall, given the corroborating statements provided by the Veteran's wife and lack of evidence to the contrary, the Board finds that the Veteran's reported history of headache symptoms following service appear to be consistent with the available evidence. Resolving all reasonable doubt in favor in the Veteran, the Board finds that the most persuasive evidence supports that the Veteran's current headaches began during his active duty service. Therefore, the Veteran's service connection claim for headaches must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a low back disability is remanded. At the November 2021 Board hearing, the Veteran testified that he injured his neck and back during advanced infantry training when another soldier was performing a rear strangle take-down by putting his arm around the Veteran's neck and throwing him to the ground on his back. He said he could not get up right away, and when he rolled over, he was in excruciating pain. The record shows that the Veteran has current diagnoses for multilevel degenerative cervical disc disease with spondylosis and disc osteophyte complexes and lumbar degenerative disc disease with spinal stenosis and neuroforaminal narrowing with impingement of nerve roots. See November 2010 private MRI report and January 2018 VA treatment record. The Board recognizes that the Veteran provided a November 2021 opinion from Dr. W.D., his former orthopedic surgeon, in which Dr. W.D. opined that the Veteran's cervical spondylosis was "medically likely to be service-connected due to his service as a combat infantryman in Vietnam." However, Dr. W.D. explained that he was unable to review the Veteran's medical records from 1988 to 1990 (the time period in which he treated the Veteran) and had based his opinion mostly on his memory and clinical experience. Because Dr. W.D.'s opinion was not based on a review of the Veteran's medical records and did not include a supporting rationale, the Board finds that the opinion is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The record does not include a sufficient etiological opinion, and the available competent evidence is insufficient to decide the claims. As the evidence suggests that the Veteran's current neck and low back disabilities may be related to his active duty service, a remand is required to obtain VA opinions to determine their etiology. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, a review of the record reveals that VA treatment records since January 2018 have not been associated with the claims file. However, the Veteran provided portions of additional relevant VA treatment records from February 2018 to July 2018. Given that pertinent VA treatment records may be outstanding, the Board finds that on remand, VA treatment records since January 2018 should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's neck and low back disabilities that are not currently of record, including the Southern Nevada Health Care System VA treatment records dated from January 2018 to the present. 2. Obtain an addendum opinion from an appropriately qualified clinician (M.D.) for the Veteran's neck and low back disabilities. The examiner should provide an opinion as to whether the Veteran's neck and low back disabilities had their onset during active service or are otherwise etiologically related to service. In providing the above opinion, the examiner should consider the Veteran's lay assertions regarding the nature of his in-service neck and back injuries during advanced infantry training and his post-service neck and back symptoms. The examiner should also address the November 2021 opinion from Dr. W.D. A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. (Continued on the next page) 3. Thereafter, review the requested VA medical opinion report to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). 4. After ensuring the above development has been completed, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.