Citation Nr: 1754143	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  15-03 605	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for a gastrointestinal disorder.

2.  Entitlement to service connection for headaches.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel


INTRODUCTION

The Veteran had honorable active duty service with the Army from June 1987 to August 1987 and September 1990 to May 1991, including service in Southwest Asia in support of Operation Desert Shield/Desert Storm.

These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2012 and September 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

In June 2017, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing.  A transcript of the proceedings has been associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for diverticulosis (claimed as gastrointestinal issues) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

Resolving doubt in favor of the Veteran, his headaches were caused by a worsening of his preexisting sinusitis during active duty service that was not clearly and unmistakably due to the natural progression of the disease.


CONCLUSION OF LAW

The criteria for service connection for headaches have been met.  38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he is entitled to service connection for headaches.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1131 (West 2014); 38 C.F.R. § 3.303 (2017).  In order to establish service connection for the claimed disability, there must be (1) medical 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) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  See 38 C.F.R. § 3.303 (2016); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  

A Veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination.  38 U.S.C.A. § 1111 (West 2014).  If a pre-existing disorder is noted upon entry into service, service connection may still be granted based on aggravation during service of that disorder.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  

A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).

The Veteran's August 1985 enlistment examination notes mild sinusitis preexisting service.  In view of these findings, VA's presumption of soundness does not apply, and the question becomes whether the disability was aggravated beyond natural progression during service.

The Veteran received frequent treatment for sinusitis in service, including for headaches.  By way of example, he was hospitalized for recurring sinusitis in October 1990.  During April 1991 demobilization from his Desert Storm deployment, the Veteran reported a severe sinus infection with ongoing headaches.  A subsequent note states that the sinusitis became worse after returning from Desert Storm.

In a February 2012 VA examination, the examiner attributed the Veteran's headaches to his preexisting sinusitis.  The examiner further noted that the correlation between the headaches and sinusitis was established in the April 1991 demobilization.  Furthermore, the examiner did not conclude that the increasing severity of the headaches was clearly and unmistakably attributable to the natural progression of the disease.  These medical opinions are not contradicted by any other medical evidence of record.  

Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's headaches are the consequence of a preexisting sinus condition that increased in severity beyond its natural progression during active duty service.  As such, service connection for headaches is warranted.


ORDER

Entitlement to service connection for headaches is granted.


REMAND

Unfortunately, remand is necessary to properly adjudicate the remaining issues on appeal.

A VA examination was not provided with respect to the Veteran's gastrointestinal disorder.  The Veteran's August 1985 enlistment examination is silent with respect to gastrointestinal conditions.  In April 1991, while the Veteran was serving in Saudi Arabia, he contracted symptoms of diarrhea for approximately 8 days, which was later assessed as dysentery.  In the Veteran's June 2017 hearing, he reported that the gastrointestinal symptoms extended past service, and continued to present day.  McLendon v. Nicholson, 20 Vet. App. 79 (2006), sets a low bar to afford an examination for a claimed service-connected condition.  As there is an indication that the Veteran's gastrointestinal disability may have been incurred in service, an examination must be afforded upon remand.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination with an appropriate clinician to assess his gastrointestinal disorder, including diverticulitis.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.  If deemed necessary, a Gulf War 

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gastrointestinal disorder began during active service, or is related to an incident of service, including his in-service dysentery.  

Although an independent review of the claims file is required, the Board draws the examiner's attention to the Veteran's June 2017 hearing testimony, where he contends that his gastrointestinal disorder was caused by having a parasite in service.  

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.

2. Then readjudicate the claim on appeal.  If it remains denied, the AOJ should issue a Supplemental Statement of the Case and return the case to the Board.
	
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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