Citation Nr: 22016390 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-31 340 DATE: March 22, 2022 ORDER Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for scarring on lungs is remanded. FINDING OF FACT The most probative evidence supports that the Veteran's migraine headache disability is related to his service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a headache disorder are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 through April 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from May 2014 and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had requested the opportunity to appear before the Board and provide evidence with respect to these matters. The Board notes, however, in January 2022, he canceled his hearing. Therefore, the Board will adjudicate the claims based on the record. The record contains a January 2022 21-4138 Statement in Support of Claim indicating that the Veteran "...is cancelling his appeal. It is no longer required." Thereafter, the Veteran's representative submitted an informal hearing presentation concerning the issues on appeal. As it is unclear to the Board whether the Veteran intended to withdraw his appeal entirely or was fully informed of the effects of withdrawal, the Board will not accept the January 2022 statement as an effective withdrawal of appeal before the Board in light of the favorable action here within. 1. Entitlement to service connection for migraine headaches is granted. The Veteran contends that his migraines headache disability is related to service. Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a) (2018). Service connection may be granted on a presumptive basis for certain chronic diseases, including headaches, which are deemed organic diseases of the nervous system, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The record confirms a current diagnosis of migraine headaches. See June 2017 Compensation & Pension Exam. Thus, the first element for establishing service connection has been satisfied. The remaining questions before the Board are whether there was an in-service incurrence of a disease or injury; and whether his current disability is related to an in-service incurrence, if any. Historically, the RO has denied service connection on the basis that the Veteran's migraines preexisted his service based on the Veteran's reporting during treatment in service that he has had migraines since 14. The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. §§ 1111. The Court has held that lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition). Here, the Board notes that migraines or headache disability was not noted in the Veteran's entrance examination. As such, the Board finds that the presumption of soundness applies. The Veteran's own reporting, without anything more, does not rebut the presumption of soundness. Here, there is no other documentation, such as medical records dated prior to the Veteran's period of service, that confirms a preexisting migraine or headache disability. Since lay statements by a Veteran are not sufficient to rebut the presumption of soundness, the Board finds that the Veteran's migraine headaches did not exist prior to service. Thus, the remaining question is whether the Veteran has a current migraine headache disability that is related to service. Service treatment records include a June 1972 entry that documents an evaluation for headaches. It was noted that in past eight-month period, the Veteran's headaches had become mostly daily in occurrence and seemed to be directly associated with a great deal of dissatisfaction in his duty station. He was diagnosed with migraines and tension headaches. In November 2014, the Veteran's representative detailed that the Veteran's headaches began mostly upon arrival in Scotland after an eighteen-month tour in Morocco and that it continues to this day. In June 2017, the Veteran was afforded a VA examination for his migraines. The Veteran reported that his headaches started once deployed to Scotland. While he had not had a migraine since 1972, he admitted to pressure pain all over his head once a month. The examiner opined that his headache disorder was less likely than not aggravated beyond its natural progression by frequent headaches beginning in 1971. This opinion did not address direct service connection, but did recognize that the Veteran's frequent headaches began during his period of active service. Here, the Veteran has alleged that his migraine headaches began while in service. He contended that he has experienced headaches since service. The Board has no reason to doubt his credibility and he is certainly competent to report experiencing migraine headaches since service. The Veteran has competently and credibly indicated that he has experienced migraine headaches during and since service. Headaches are readily observable through one's own senses, and therefore, medical evidence while helpful is not required. The Veteran is competent to describe his in-service headaches and his symptoms of headaches ever since. Additionally, there are service treatment records to support the presentation of migraine and tension headaches in service. The Board finds that the Veteran's credible statements as to the long-standing nature of his migraine headache disability present a continuity of symptomatology. Thus, the weight of the evidence persuasively supports that his migraine headaches disability is related to service. Service connection for a migraine headache disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for scarring on lungs is remanded. The Veteran contends that his scarring on the lungs is related to his service, to include as caused by exposure to asbestos. Specifically, the Veteran has alleged that he was exposed to asbestos while serving aboard the USS Paul and USS Canpous. In May 2014, the Veteran was afforded a VA examination for his alleged lung disability. He reported that his scarring of the lungs caused symptoms of shortness of breath and lack of stamina. He stated that this condition became progressively worse in the past three or four years. The RO denied the Veteran's claim, in part, because the Veteran did not have a diagnosis or pathology for the scarring of his lung. Further, the RO determined that the Veteran's lung scarring has not been associated with asbestos exposure. The Board first notes that despite the lack of a formal diagnosis, pain alone may constitute disability, even without an identifiable underlying pathology, if the pain reached the level of a functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Saunders was very recently interpreted as defining a "disability" as a functional impairment of earning capacity, and that applies broadly to include more than just pain. Martinez-Bodon v. Wilkie, No. 18-3721, (U.S. App. Vet. August 11, 2020). Here, the record supports that the Veteran has reported that his lung scarring causes shortness of breath and lack of stamina. On remand, the Veteran should be afforded a new VA examination to clarify the nature and etiology of his lung scarring, to include whether he has any related diagnosed disability and if not, whether any functional impairment alone may constitute disability, even without an identifiable underlying pathology. Secondly, although the RO generally asserts that the Veteran's lung scarring has not been associated with asbestos exposure, the Veteran has not been afforded a VA examination to consider whether his lung scarring is related to asbestos exposure. Thus, it is unclear what competent evidence the RO relied on to make such determination. Here, the Veteran has asserted a potential lung disability that is related to asbestos exposure. VA has a duty to attempt to verify the Veteran's claimed asbestos exposure during his active service, to include while serving aboard the USS Paul DE-1080 and USS Canpous AS-34. Thus, on remand, the AOJ must obtain all pertinent ship logs for the USS Paul DE-1080 and USS Canpous AS-34, and then attempt to verify, through all official sources, any exposure of the Veteran to asbestos in service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of the Veteran's lung scarring. Based on the examination, the examiner is asked to address the following: (a) Specifically identify any diagnosable pathology associated with the Veteran's lung scarring. (b) If there is no diagnosable pathology for the lung scarring, the examiner must determine whether there is any objective evidence of shortness of breath and lack of stamina resulting in functional impairment? Specifically, does any shortness of breath or lack of stamina impair the Veteran's ability to function under the ordinary conditions of daily life, including employment? In answering this question, the examiner should ask the Veteran to explain the effect of shortness of breath and lack of stamina. (c) Is it at least as likely as not (probability of 50 percent or higher) that any diagnosed lung scarring pathology or identified functional impairment had its onset in or is otherwise related to active-duty service, to include the Veteran's alleged exposure to asbestos? 2. Request all pertinent ship logs for the USS Paul DE-1080 and USS Canpous AS-34. All requests for records and their responses must be associated with the record. 3. Take all necessary steps to verify, through official sources, any in-service exposure of the Veteran to asbestos while serving aboard the USS Paul DE-1080 and USS Canpous AS-34 during his active service aboard these ships. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, Associate 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.