Veteranclaims’s Blog

November 7, 2014

Single Judge Application; Cf. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013); Linkage Elements; Lay Evidence; Headaches; Diagnosis; Etiology

Excerpt from decision below:

“Mr. Esparza’s references to the August 2013 VA examiner’s statement that headaches are a “subjective diagnosis” that “can[]not be ‘found on physical exam'” do not compel a different conclusion. R. at 32. Even assuming that this statement establishes that a lay person can competently diagnose a headache disorder,4 diagnosing a medical condition and identifying etiology are separate matters. Cf. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013) (distinguishing between the current disability and linkage elements of service connection). The August 2013 VA examiner did not comment on the competence of a layperson to opine on the etiology of a headache disorder, and the record does not contain evidence supporting the veteran’s alleged
competence to do so. To the extent that his argument is also based on the fact that he has continued to experience similar headaches since service (see Reply Br. at 2), the U.S. Court of Appeals for the Federal Circuit’s holding in Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013),  prohibits him from establishing linkage between his current disability and service based solely on
continuity of symptoms evidence because headaches are not one of the chronic diseases listed in 38 C.F.R. § 3.309(a). Accordingly, the Court concludes that Mr. Esparza has failed to carry his burden of demonstrating that the Board
committed error in finding him not competent to link his current headache
disorder to service.”

=====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-3341
GILBERT R. ESPARZA, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY,Judge: VeteranGilbertR.Esparzaappeals throughcounselaNovember1,
2013,
Board of Veterans’ Appeals (Board) decision denying service connection for
a headache disability,
to include as secondary to service-connected dysthymic disorder.1
Record (R.) at 2-13. This appeal
is timely and the Court has jurisdiction to review the Board’s decision
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate in this
case. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the
Court will set aside the
November 2013 Board decision and remand the matter for further development
and readjudication
consistent with this decision.
“Dysthymic disorder” is a “mood disorder characterized by depressed
feeling . . . , loss of interest or pleasure
in one’s usual activities, and by at least some of the following: altered
appetite, disturbed sleep patterns, lack of energy,
low self esteem, poor concentration or decision-making skills, and
feelings of hopelessness.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 550 (32d ed. 2012) [hereinafter DORLAND’S]. A diagnosis
of dysthymic disorder is appropriate
when the foregoing symptoms have “persisted for more than two years but
are not severe enough to meet the criteria for
major depressive disorder.” Id.
1

I. FACTS
Mr. Esparza served on active duty in the U.S. Navy from May 1955 to August
1957. R. at
240, 807. Service medical records (SMRs) indicate that, from January to
March 1956, he was
hospitalized with respiratory problems and treated for ascariasis.2
R. at 767-70; see R. at 8 (Board’s
finding that, while being treated in service for a parasitic infection,
the veteran “reported symptoms
including a high temperature and severe headaches”), 773-74 (service
personnel records reflecting
transfers to Naval hospitals in Saipan and Guam).
InSeptember2005,Mr.Esparzafileda claim for serviceconnection for, inter
alia,headaches
and depression. R. at 743-50. He asserted that those conditions began in
service after he contracted
a parasite (R. at 753) and submitted a statement from shipmate James W.
Elder, who corroborated
that assertion (R. at 781-82). Mr. Esparza also stated that those
conditions had progressively
worsened since service. R. at 753; see R. at 635 (October 2005 VA medical
record reflecting
complaints of worsening headaches since service).
In January 2006, a VA regional office (RO) denied service connection for
migraine
headaches and depression. R. at 696-701. Mr. Esparza filed a timely Notice
of Disagreement as to
that decision (R. at 711-12, 758) and subsequently perfected his appeal to
the Board (R. at 592).
While the appeal was pending, the veteran received VA medical treatment
and was diagnosed with
chronic headaches. R. at 611-12, 622-23. He also submitted personal and
buddy statements
detailing the in-service infection and his consequent headaches and
depression. R. at 257-61, 296-
98, 549-50, 589-91. In April 2011, the Board remanded the claims for
further development (R. at
129-42), including for VA medical examinations assessing the etiologies of
his claimed conditions
in light of the “competent lay statements of the [v]eteran and his fellow
service members regarding
the onset and continuity of his headaches and psychiatric symptomatology” (
R. at 134).
Those examinations were conducted in August 2011. R. at 91-107. First, a
VA staff
physician reviewed the veteran’s claims file, recorded his complaints,
performed a physical
examination, and diagnosed migraine headaches. R. at 106-07. The physician
opined that Mr.
Esparza’s migraines were “not caused by or related to in-service treatment
for parasitic infection or
“Ascariasis” is a roundworm infection that begins in the small intestine,
causing colicky pains and diarrhea,
and which often spreads from the intestine to the lungs, causing
pneumonitis. See DORLAND’S at 162.
2
2

otherwise related to his active military service” because his SMRs were ”
silent for migraines or
headaches;” a literature review did “not show a connection between
successfully-treated ascariasis
and chronic migraines;” and the veteran “did not seek medical attention
for migraines until 2005, 48
years after military service.” R. at 107. Next, a VA clinical psychologist
performed a mental status
examination and diagnosed, inter alia, dysthymic disorder, which she
attributed to the in-service
parasite infection. R. at 91-105.
Accordingly,inMay2012,VA’s Appeals ManagementCenter(AMC)
issuedaSupplemental
Statement of the Case (SSOC) grantingserviceconnection for dysthymic
disorder, evaluatedas70%
disabling, and continuing to deny service connection for migraine
headaches. R. at 80-90. The
headache claim was subsequentlyreturnedto the Board and, in January2013,
Mr. Esparza submitted
a buddystatement from JamesV. Patterson, the assistant to the chief
hospital corpsman who initially
treated him for ascariasis in 1956. R. at 65-66. Mr. Patterson described
Mr. Esparza as “gravely ill”
with “terrible headaches” and further stated:
Gilbert Esparza was having the headaches very, very often for which we
would give
him a handful of aspirins. He would seem better for a short while, then
the
headaches would return. I recall personally at one instance giving him a 5,
000
[count] bottle of aspirin. He was discharged after that and I have not
seen him nor
heard from him until now.
R. at 65.
In June 2013, the Board remanded the headache claim for a new medical
examination to
address whether the veteran’s migraines were related to his service-
connected dysthymic disorder.
R. at 50-58. Relevant to this appeal, the Board specified that Mr. Esparza
was “competent to report
his symptoms and history” and instructed the examiner that “[s]uch reports
must be specifically
acknowledged and considered in formulating any opinions.” R. at 56-57. The
Board continued: “If
the examiner rejects the [v]eteran’s reports of symptomatology, a reason
for doing so must be
provided. The absence of evidence of treatment for headaches in the [v]
eteran’s service treatment
records cannot, standing alone[,] serve as the basis for a negative
opinion.” R. at 57. The AMC
repeated these instructions in its examination request. R. at 36.
In August 2013, Mr. Esparza underwent the ordered VA headache examination.
R. at 29-34.
After reviewing the claims file and obtaining a medical history from the
veteran, which included
3

reports of headaches beginning in service and continuing since that time,
the examiner diagnosed
migraine and tension headaches. R. at 29-30. The examiner explained that a
headache is “a
subjective diagnosis” that “can[]not be ‘found on physical exam,'” but
noted that Mr. Esparza had
reported a headache at the end of the appointment, “which can be a
condition related to tension
headaches.” R. at 32 (capitalization altered). The examiner then opined
that Mr. Esparza’s migraine
and tension headaches were less likely than not related to the in-service
parasitic infection or
otherwise related to service because the claims file was “silent for
headaches,” including during
treatment forascariasis; headachesarenot aresidualoftreatment
forascariatic pneumonia; andthere
was no record of medical treatment for headaches until 2005. R. at 32-33.
The examiner also opined
that the veteran’s headache conditions were less likely than not caused or
aggravated by a service-
connected condition, including dysthymic disorder, because “[t]here is no
documentation in the
literature” that supports such a relationship. R. at 33. The examiner
listed “secondary causes” of
headache disorders, including depression, but rejected depression as a
cause of the veteran’s
conditions because “dysthymic disorder differ[s] from depression.” Id.
Later in August 2013, the
AMC issued an SSOC continuing to deny the veteran’s headache claim. R. at
24-28.
In November 2013, the Board issued the decision currently on appeal, which
denied service
connection for a headache disability, to include as secondary to service-
connected dysthymic
disorder. R. at 2-13. The Board first found that VA had satisfied its duty
to assist because it had
complied with prior Board remand orders and had provided the veteran with
adequate medical
examinations. R. at 5-6. The Board then determined that Mr. Esparza had
current diagnoses of
migraine and tension headaches, that SMRs showed that he “was treated for
headaches as part of his
parasite infection and subsequent bronchopneumonia,” that “the [v]eteran’s
own statements and the
lay statements of his shipmates support this history,” and that the Board ”
accepts [those statements]
as competent and credible evidence of headaches in service.” R. at 8, 10.
However, the Board found
that the evidence of record preponderated against finding a link between
the veteran’s current
headache disorders and service or service-connected dysthymic disorder
because the August 2011
and 2013 VA medical examiners opined against such a finding and there was
no documented
medical treatment for headaches until 50 years after service. R. at 9-13.
4

In so finding, the Board observed that “both the 2011 and the 2013 VA
medical opinions
found the lack of medical evidence for this time period significant,
indicating their perception that
a chronic headache or migraine disabilitywould have yielded medical
evidence at some point during
that 50[-]year time span.” R. at 10. The Board also acknowledged Mr.
Esparza’s lay statements
regarding a link between his headaches and service and found him competent
to identify the onset
and course of his headaches and to describe the observable symptoms
thereof. R. at 10-11.
However, the Board ultimately rejected his lay linkage opinions as not
competent because it found
“the question regarding the relationship between such disability and
active service to be complex in
nature” and “beyond the competency of a lay person” and noted that Mr.
Esparza had “not been
shown to have any medical education, training, or experience which would
enable him to offer . .
. an opinion” on that matter. R. at 11. This appeal followed.
II. ANALYSIS
A. Adequacy of the August 2011 and 2013 VA Headache Examinations
Mr. Esparza argues that the August 2011 and 2013 VA headache examinations
were
inadequate, and the Board therefore erred in relying on them, because,
inter alia, both examiners
failed to adequately account for lay evidence of record of headaches in
service. Appellant’s Brief
(Br.) at 8-13. The Secretary responds that the examiners were not required
to discuss that evidence
and that the veteran is confusing the duties of medical examiners with
those of the Board.
Secretary’s Br. at 18-22. The Court agrees with the veteran.
Although the Secretary is correct that a medical examiner is not
ordinarily obligated to
address all evidence favorable to a veteran to render an adequate medical
opinion, Acevedo v.
Shinseki, 25 Vet.App. 286, 293 (2012) (“[T]here is no reasons or bases
requirement imposed on
examiners.”); Roberson v. Shinseki, 22 Vet.App. 358, 367 (2009) (“A
medical examiner need not
discuss all evidence favorable to an appellant’s claim when rendering an
opinion.”), the examiners’
failure to credit the lay evidence of in-service headaches, despite the
Board’s explicit findings that
Mr. Esparza experienced headaches in service, means that the August 2011
and 2013 VA
examinations
werebasedonaninaccuratefactualpremiseandwerethereforeinadequate,seeReonal
5

v. Brown, 5 Vet.App. 458, 460-61 (1993) (“An opinion based upon an
inaccurate factual premise has
no probative value.”).
Specifically, in April 2011, the Board preliminarily found that the record
contained
“competent lay statements of the [v]eteran and his fellow service members
regarding the onset and
continuityofhis headachesandpsychiatricsymptomatology”
andorderedaVAmedicalexamination
to assess the etiology of his claimed headache disorders in light of that
evidence. R. at 134.
Although the August 2011 VA examiner reviewed the claims file and
explicitly stated that he had
considered the lay evidence of record, he nevertheless opined that the
veteran’s headache disorders
were less likely than not related to service because SMRs were “silent for
migraines or headaches.”
R. at 106-07. In June 2013, the Board again remanded, this time expressly
finding that Mr. Esparza
was “competent to report his symptoms and history” and ordering a new
medical examination that
“specificallyacknowledgedandconsidered[thosereports] in
formulatinganyopinions.” R. at56-57.
The Board reminded the examiner that “[t]he absence of evidence of
treatment for headaches in the
[v]eteran’s service treatment records cannot, standing alone[,] serve as
the basis for a negative
opinion” and instructed that, if the examiner were to reject the veteran’s
lay statements of in-service
headaches, “a reason for doing so must be provided.” R. at 57. However,
similar to the August 2011
examiner, the August 2013 examiner noted the lay evidence of in-service
headaches (R. at 29-30)
but ultimately concluded that the veteran’s current headache disorders
were not related to service
because, inter alia, the claims file was “silent for headaches” and there
were no SMRs listing
headaches among his complaints related to ascariasis (R. at 32-33). In the
decision currently on
appeal, the Board accepted the lay statements as competent and credible
evidence of in-service
headaches sufficient to establish in-service incurrence (R. at 10), but
nevertheless relied on the
August 2011 and 2013 examiners’ opinions rejecting those statements to
find that the evidence
preponderated against linkage (R. at 12-13).
The Board’s reliance on those negative linkage opinions is inconsistent
with its finding that
the veteran experienced headaches in service, and it is unclear to the
Court how the Board could
maintain such divergent positions on that issue. See Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990)
(requiring that the Board provide a statement of reasons or bases for its
decision that is adequate to
enable a claimant to understand the precise basis for that decision and to
facilitate review in this
6

Court). Mr. Esparza’s case is similar to Dalton v. Nicholson, 21 Vet.App.
23 (2007), in this regard.
In Dalton, the appellant submitted lay statements that he had injured his
back in service and the
Board “assumed” that such injury had occurred. 21 Vet.App. at 39. However,
the Board denied his
claim for service connection for back injury residuals because it found,
relying on a negative VA
linkage opinion premised on “lack of notation or treatment of a back
injury in service,” that his
current back problems were not related to service. Id. at 28, 39. On
appeal, the Court found that
opinion inadequate because the examiner “impermissibly ignored the
appellant’s lay assertions that
he had sustained a back injury during service,” despite the Board’s
assumption that such an injury
had actually occurred. Id. at 39. The Court explained that, where the
Board “specifically assume[s]
an in-service [] injury,” a medical examiner “cannot rely on the absence
of medical records
corroborating that injury to conclude that there is no relationship
between the appellant’s current
disability and [] military service.” Id. at 39-40. The Court therefore
found that the Board, in relying
on the inadequate VA opinion, had provided inadequate reasons or bases for
its decision. Id. at 37-
40.
As in Dalton, the Board accepted two seemingly incompatible views of the
facts: it found
that Mr. Esparza experienced headaches in service while also relying on
evidence that rejected that
premise. Once the Board made the favorable finding that the veteran had
headaches in service, it
was no longer permitted to rely on VA medical opinions that were based on
the putative absence of
headaches in service. See Dalton, 21 Vet.App. at 39-40. The August 2011
and 2013 VA medical
opinions were based, at least in part, on the examiners’ beliefs that Mr.
Esparza did not experience
headaches in service (R. at 56-57, 106-07) and, to that extent, the
factual premises for those opinions
are inconsistent with the Board’s finding of fact (R. at 10). Thus, the
opinions are inadequate for
linkage purposes, see Dalton, 21 Vet.App. at 39-40; Reonal, 5 Vet.App. at
460–61, and the Board
erred in relying on them, see Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (
holding that the Board
errs when it relies on an inadequate medical examination report or opinion).
3
Given this conclusion, the Court need not address Mr. Esparza’s additional
argument that the August 2013 VA
opinion was inadequate because the examiner “conflated symptoms of
depression with those of major depressive
disorder.” Appellant’s Br. at 12-13.
3
7

B. Lay Evidence of Linkage
Mr. Esparza also argues that the Board clearly erred in finding that he
was not competent to
opine as to the etiology of his current headache disorders. Appellant’s Br.
at 4-8. He asserts that,
because headaches are observable by laypeople and the August 2013 VA
examiner described
headaches as “subjective” (R. at 32), he was competent to link his current
headaches to those he
experienced in service. Appellant’s Br. at 6. The Secretary disputes this
contention and argues that
the veteran is making an “unsupported leap” of logic from competence to
report headaches to
competence to identify their etiology. Secretary’s Br. at 15. The Court
agrees with the Secretary.
A witness is competent to testify as to a fact within his or her personal
knowledge or realm
of expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). The Board may
not categorically
reject testimony as to diagnosis or etiology as not competent solely
because it was provided by a
layperson. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (
rejecting the argument that
medicalevidenceis requiredto establishlinkage);Jandreauv.Nicholson,492F.
3d1372,1377(Fed.
Cir. 2007) (outlining the situations where lay evidence of a diagnosis is
competent); Kahana v.
Shinseki, 24 Vet.App. 428, 435 (2011) (recognizing that there is “no
categorical requirement” that
medical evidence be used to establish a diagnosis or etiology); see
generally Buchanan v. Nicholson,
451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that “competent lay evidence
can be sufficient in and
of itself” to establish the elements of service connection).
Instead, the Board must determine whether lay testimony is competent in a
particular case
to establish the fact for which it was offered. Jandreau, 492 F.3d at 1377.
When the lay testimony
concerns either the issue of diagnosis or etiology, the answer to that
question depends on the nature
of the claimed condition. Young v. McDonald, __ F.3d __, __, No. 2013-7116 (
Fed. Cir. 2014); see
Jandreau, 492 F.3d at 1377 n.4 (“Sometimes the layperson will be competent
to identify the
condition where the condition is simple, for example a broken leg, and
sometimes not, for example,
a form of cancer.”); Kahana, 24 Vet.App. at 433 n.4 (“When considering
. . . layevidence, the Board
should determine, on a case-to-case basis, whether the veteran’s
particular disability is the type of
disability for which lay evidence is competent.”). The Board’s
determination of the competence of
lay evidence is a finding of fact that the Court reviews under the ”
clearly erroneous” standard set
forth in 38 U.S.C. § 7261(a)(4). See Jandreau, 492 F.3d at 1377.
8

Here, the Board acknowledged that Mr. Esparza was competent to “describe
headache pain
and other symptoms within his experience and to express his belief that
the ongoing symptoms are
similar to those experienced throughout a specific period” but found that
he was not competent to
opine on the distinct issue of etiology because the etiology of headaches
was a “complex medical
question[] beyond the competency of a layperson” and he had “not been
shown to have any medical
education, training, or experience which would enable him to offer [such]
an opinion.” R. at 11.
This finding is plausible and not clearly erroneous. See Gilbert, 1 Vet.
App. at 53 (holding that the
Court may not overturn a factual finding of the Board so long as there is
a plausible basis in the
record for that finding); see also R. at 33 (August 2013 VA examiner’s
discussion of possible causes
of headaches, including intracranial lesions, head injury, cervical
spondylosis, dental or ocular
disease, temporomandibular joint dysfunction, sinusitis, hypertension, and
depression).
Mr. Esparza’s references to the August 2013 VA examiner’s statement that
headaches are a “subjective diagnosis” that “can[]not be ‘found on physical exam'” do not compel a different conclusion. R. at 32. Even assuming that this statement establishes that a lay person can competently diagnose a headache disorder,4 diagnosing a medical condition and identifying etiology are separate
matters. Cf. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013) (distinguishing between the current disability and linkage elements of service connection). The August 2013 VA examiner did not comment on the competence of a layperson to opine on the etiology of a headache disorder, and the record does not contain evidence supporting the veteran’s alleged
competence to do so. To the extent that his argument is also based on the fact that he has continued to experience similar headaches since service (see Reply Br. at 2), the U.S. Court of Appeals for the Federal Circuit’s holding in Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013),  prohibits him from establishing linkage between his current disability and service based solely on
continuity of symptoms evidence because headaches are not one of the chronic diseases listed in 38 C.F.R. § 3.309(a). Accordingly, the Court concludes that Mr. Esparza has failed to carry his burden of demonstrating that the Board
committed error in finding him not competent to link his current headache
disorder to service. See
4
The Court notes that the Board found otherwise. R. at 10-11.
9

Hilkert v. West, 12 Vet.App. 145, 151 (1999) (appellant bears the burden
of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).

C. Remedy
Having concluded that the Board erred in relying on inadequate August 2011
and 2013 VA medical opinions but not in finding Mr. Esparza not competent to determine the etiology of his headache disorders, the Court must now determine the appropriate remedy in this case. Although the veteran argues for reversal, that argument is premised entirely on the Court concluding that the
Board had clearly erred in making its negative competence determination.
See Appellant’s Br. at 7, 14. Because the Board did not clearly err in that determination (see supra pt. II.B), and because further development is required (see supra pt. II.A), the proper remedy in this case is remand. See
Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that
reversal is appropriate only “where the Board has performed the necessary fact finding and explicitly weighed the evidence” and this Court, based “on the entire evidence, . . . is left with the definite and firm conviction that a mistake has been committed”); Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand
is the appropriate remedy “where the Board has incorrectly applied the law,
failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
On remand, Mr. Esparza is free to present any additional arguments and
evidence to the
Board in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (
1999) (per curiam
order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court
reminds the Board that “[a]
remand is meant to entail a critical examination of the justification for [
the Board’s] decision,”
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed
in an expeditious manner
in accordance with 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the November 1, 2013, Board decision
is SET ASIDE
and the matter is REMANDED for further development and readjudication
consistent with this
decision.
DATED: October 22, 2014
10

Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
11

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