Magana v. Brown

7 Vet. App. 224, 1994 U.S. Vet. App. LEXIS 1004, 1994 WL 703029
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 14, 1994
DocketNo. 93-556
StatusPublished
Cited by13 cases

This text of 7 Vet. App. 224 (Magana v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Magana v. Brown, 7 Vet. App. 224, 1994 U.S. Vet. App. LEXIS 1004, 1994 WL 703029 (Cal. 1994).

Opinion

STEINBERG, Judge:

The appellant, Korean-conflict veteran Francisco Magana, appeals a February 17, 1993, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to service connection for headaches, claimed as secondary to a service-connected residual shrapnel wound of the right-zygoma and left-maxillary areas. Record (R.) at 6-14. (The zygoma is the cheekbone; “maxillary” relates to the upper jaw. Webster’s Medical Desk Dictionary 777, 414 (1986) [hereinafter Webster’s].) Each party has filed a brief. For the reasons that follow, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this opinion.

I. Background

The veteran served on active duty in the United States Army from August 1952 to May 1954. R. at 19-20. His service medical records (SMRs) are missing and presumed destroyed. See R. at 70. His Department of Defense “Certificate of Release or Discharge From Active Duty” (DD Form 214) noted that in July 1953 he had received, in action, a fragment wound resulting in a “small sc[a]r” under his left eye. R. at 19.

In February 1991, the veteran filed with a Department of Veterans Affairs (VA) regional office (RO) an application for compensation or pension, stating: “I wish to establish service connection for shrapnel in my face, which is causing me severe headaches.” R. at 22, 24-27. He requested that the VARO obtain his SMRs and his outpatient treatment records (OPTRs) from the Long Beach, California, VA Medical Center (MC) and schedule a VA compensation examination. R. at 22. With his application he submitted a copy of his DD Form 214. R. at 19. Later in February 1991, the RO obtained the veteran’s VA OPTRs, including a January 1991 nursing entry noting a complaint of “pain r[ight] upper gums [secondary to] schrapnel [sic] per dentist”. R. at 30. Later that month, the veteran was referred to the VAMC dental clinic, where physical examination revealed increased sensitivity in the right molar region and radiographic examination revealed the presence of shrapnel in that area. R. at 34. The examiner’s assessments were as follows: “1) Headache not of odontogenic origin although possibly referred pain from mandib[ular] teethf.] 2) Palpation sensitivity possibly associated] [with] shrapnel in r[ight] molar region.” Ibid.

In February 1991, the RO obtained a hospital admission card abstract for 1953 prepared by the Army Surgeon General showing that on July 12, 1953, the veteran had been admitted for treatment of a cheek abrasion caused by an explosive projectile. R. at 48. In the report of a March 1991 VA compensation examination, Dr. Sandra Lee noted the veteran’s complaint of headache and stated: “Etiology of headaches is unknown and the connection with the residual metalie [sic] fragment is also unknown. A neurological consultation is also recommended for further evaluation.” R. at 62. In April 1991, a VA medical examination for disability evaluation noted the presence of a 1- to 2-mm. metallic foreign body “in the r[igh]t zygoma, l[ef]t mandibular area” (R. at 53); x-rays of the paranasal sinuses confirmed the presence of a “minute metallic fragment ... opposite the right zygoma and left mandible” and showed [226]*226“[m]oderate thickening of the mucosa of the left antrum.” R. at 54. (“Mandible” is the lower jaw. “Mucosa” is the mucous membrane. An antrum is a cavity of a hollow organ or sinus. WebsteR’s at 408, 453, 42.) According to the VA examiner, Fred Wilms, M.D., x-rays revealed two metallic foreign bodies, one in the right zygoma and one within the soft tissue adjacent to the left mandible. R. at 63. Dr. Wilms stated that “[cjareful examination of the skin and the face ... reveals thickened, oily skin but no evidence of scar.” Ibid. According to Dr. Wilms, the veteran’s private dentist had “suggested that the headaches might possibly be aggravated by” the right-zygoma fragment. Ibid. Dr. Wilms then noted that a VA neurological examination had been scheduled and made the following recommendation: “No surgery be performed in that the foreign bodies are relatively small and in my opinion are not the source of headaches. This will, however, have to be verified or not verified by careful neurologic examination.” R. at 64.

According to the report of an April 29, 1991, VA neurological examination conducted by Kimberly Kelly, M.D., a VA neurologist, the veteran stated that while in service he had suffered shrapnel wounds to his face and that he had experienced headaches involving the right temporal area for about the last five or ten years. R. at 56. According to Dr. Kelly, he stated that he suffered major headaches, each of more than one month’s duration, three to four times a year, and experienced dull aching sensations at other times. Ibid. Additionally, Dr. Kelly reported that he had told her that the headache pain had recently moved into the right posterior gum. Ibid. Dr. Kelly’s examination report stated: “He has been told by his dentist that he does not have any identifiable dental problems causing his pain, but in our history we can relate that he believes he underwent extractions of maxillary molars bilaterally, approximately 7 years ago, which may have corresponded to the onset of his cephal[al]gia.” R. at 59. (“Cephalalgia” means headache. WebsteR’s at 108.) Dr. Kelly, who noted that she had examined the veteran “without benefit of the C-file”, stated the following clinical impressions:

1. Five to ten-year-history of right temporal cephal[al]gia radiating into the right parietal and right vertex [top of the head, Webster’s at 756] areas and more recently into the right posterior maxillary region, etiology not determined at the time of this evaluation.
Neurological examination today was unremarkable.
2. Retained shrapnel fragment, soft tissues, opposite the right zygoma and left mandible by radiographic report.

R. at 59. Dr. Kelly then wrote as follows under the heading “RECOMMENDATIONS”:

It was strongly recommended to Mr. Ma-gana that he seek further evaluation through the [VA] facility of his choice, [or] neurology clinic, including a e[omputer-ized] t[omography] [ (CT) ] scan of the brain with and without contrast as well as an electroencephalogram. He should as well have a myofascial [relating to muscle tissue, Webster’s at 460, 236] examination of the head and neck in order to further evaluate if he may indeed have a myofas-cial pain syndrome.

Ibid.

In an August 1991 rating decision, the RO awarded service connection for “[r]esidual shrapnel Wound, right zygoma area and left maxillary area”, rated 0% disabling, but denied service connection for headaches. R. at 71. That same month, the veteran filed a Notice of Disagreement as to the RO’s denial of his headache claim. R. at 75. In November 1991, the RO received a September 1991 statement from Gary Popyak, D.D.S., a private dentist, who stated that in December 1990 he had examined the veteran following complaints of pain in the upper-right sinus area and that radiographic examination had revealed shrapnel in that area. R. at 84. Dr. Popyak stated that he had referred the veteran to an oral maxillofacial surgeon (and stated that surgeon’s name, address, and phone number) but did not indicate whether, to his knowledge, the veteran had sought the surgeon’s opinion. Ibid.

In December 1991, the veteran testified under oath at an RO hearing on appeal to the

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Bluebook (online)
7 Vet. App. 224, 1994 U.S. Vet. App. LEXIS 1004, 1994 WL 703029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magana-v-brown-cavc-1994.