Citation Nr: 0811082 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-28 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for arthritis of the bilateral hands and fingers. 3. Entitlement to service connection for arthritis of the bilateral wrists. 4. Entitlement to service connection for arthritis of the bilateral knees. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from September 1977 to June 1992 including in the Persian Gulf from October 1990 to March 1991. This case was brought to the Board of Veterans Appeals (the Board) from actions taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, TX, in March 2004. Service connection is in effect for right shoulder bursitis, rated a 10 percent disabling; bilateral defective hearing, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; residuals of left ankle sprain, rated as 10 percent disabling; and allergic rhinitis, vertiligo of the back, and sebaceous cyst of the left ear, each evaluated as noncompensably disabling. The veteran and his spouse provided testimony before the undersigned Acting Veterans Law Judge via videoconferencing in December 2006; a transcript is of record. In March 2007, the case was remanded for development as specified therein. Issues ## 2, 3 and 4 on the front page are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The competent and probative evidence preponderates in favor of a finding that the veteran developed chronic migraine headaches in and as a result of service. CONCLUSION OF LAW Migraine headaches were incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 1153(West 2002 and Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Migraine Headaches I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159, 3.326(a) (2007). In view of the grant herein on issue #1, there is no need for further discussion of notice or development except as handled in the remand segment of this decision. II. Pertinent Law and Regulations In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In addition, service connection for certain neurological disorders, including migraine headaches, may be established based upon a legal presumption by showing that the disability was manifested to a compensable degree within one year after the date of separation from service. 38 U.S.C.A. §§ 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). The Board notes that the language of the aforementioned regulation at 38 C.F.R. § 3.304(b) (2004) was amended during the pendency of this appeal, effective May 4, 2005. The amended regulation requires that VA, rather than the claimant, bear the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. As noted, under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). In general, congenital or developmental defects (as opposed to those disabilities for which there may or may not be "predisposition", ill-defined genetical and/or so-called heredical tendencies, e.g., diabetes mellitus, etc.), as such are not diseases or injuries within the meaning of the applicable legislation and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. See also VAOPGCPREC 82- 90. However, the VA General Counsel has further noted that if, during service, superimposed disease or injury occurs, service connection may be warranted for the resultant disability. See also Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).. However, even assuming that the veteran may manifest some sort of hereditary disease [as suggested by a recent VA physician with regard to migraines], an hereditary disease need not always rebut the presumption of soundness. Rather, diseases of hereditary origin may be considered to have been incurred in service if their symptomatology did not manifest itself until after entry on duty. The mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease. Only when the symptomatology and/or the pathology exist can he or she be said to have developed the disease. At what point the individual starts to manifest the symptoms of, or have pathological changes associated with the disease is a factual, not a legal issue. And even when an hereditary disease has manifested some symptoms prior to entry on duty [and in this instance, there is no suggestion by the VA physician that this was the case], it may be found to have been aggravated during service if it progresses during service at a greater rate than normally expected according to accepted medical authority. VA VAOPGCPREC 67-90 (July 18, 1990), published at 55 Fed. Reg. 43,253 (1990); see also VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). To clarify further, in the case of diseases that are congenital, developmental, or familial in origin, VA may find that the disease, by its very nature, preexisted the veteran's military service. VAOPGCPREC 82-90 (1990). Then the question becomes whether the manifestations of the disease in service constitute "aggravation" of the condition. Id. However, a disease of hereditary origin can be incurred in service. "They can be considered to be incurred in service if their symptomatology did not manifest itself until after entry on duty." VAOPGCPREC 67-90 (1990). "The mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease." Id. "Only when symptomatology and/or pathology, in the sense of an active disease process, not just a mere predisposition to develop a disease, which process may or may not precede symptomatology exist can he or she be said to have developed the disease." Id. The Board has an obligation to provide adequate reasons and bases supporting this decision, but there is no requirement that every item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. In each of the following instances, pertinent evidence will be delineated and all of the entire evidence of record has been reviewed. However, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Factual Background and Analysis The veteran's service records show no sign of headaches prior to service. On his separation examination, he reported having had frequent/severe headaches. Post-service medical records show that immediately after separation from service, including on a VA examination and then on VA outpatient reports, the veteran complained of serious headaches, primarily right-sided in nature. Since then, he has been repeatedly diagnosed as having migraine headaches. A recent VA examiner noted that the veteran reported that he started having serious headaches in service about 6 months after he returned from the Persian Gulf in 1991. Symptoms included disorientation and shivering with nausea and pressure on the back of the neck. Some headaches seemed to be triggered by some smells. He said he had reported it to the military physician but it was felt, at the time, to be probably due to the food they were eating. He reported the ongoing problem to the VA physician who examined him in 1992, after service, and the diagnosis was made of migraine headaches. The headaches had become progressively worse. There was some improvement with the use of migraine medications. Symptoms included nausea, head pressure, photophobia, and phonophobia. Sometimes the symptoms were instigated by smells or other environmental triggers. The headaches might awaken him at night but once they had started, going into a darkened room helped. He and his spouse also controlled the home environment as best they could. The VA examiner at the time of the 2007 evaluation went into considerable general treatise-oriented discussion of the familial or heretical nature of migraines and various genetic possibilities. However, it was also noted that the veteran had them in and right after service. The examiner felt that he "would have had them anyway" due to the genetic component. Statements, both in writing and via testimony, have been submitted by the veteran and his family and friends to the effect that he did not have migraines prior to service, developed them during or shortly after his stint in the Persian Gulf, and has had them increasingly since service. The Board finds these to be entirely credible. In assessing the veteran's claim with regard to migraine headaches, the Board notes that there is no evidence of any kind, either subjective or objective, of any pre-service migraines or during the initial many years of service. Neither did the veteran have complaints of migraines until the final several months of his multiple-year military service. Sometime during his Persian Gulf service, and since, he has had headaches which often had seeming environmental stimuli. These have continued and progressed since then and have been diagnosed as migraines. Regardless of whatever vague propensity the veteran may or may not have had for developing migraines, under prevailing VA regulations, this is entirely irrelevant. Moreover, it is rendered moot by the fact that they were not demonstrated until close to the end of his service, clearly increased in severity since their inception, and have continued since then on a chronic basis. Although the evidence is not unequivocal, a reasonable doubt is raised which must be resolved in his favor. Service connection is warranted for migraine headaches as being the result of military service. ORDER Service connection for migraine headaches is granted. REMAND Multiple Joint Arthritis Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2007)), and secondary service connection may be found where a service- connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). A recent amendment essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. In this case, the veteran already has service connection for a right shoulder and left ankle disability which may or may not have had impact on other orthopedic complaints. As clearly delineated in the earlier Board remand, the veteran had a long period of service during which time his limited service records show recurrent episodes of joint injury including of various fingers, his hand, left wrist, etc.; and findings suggestive of residual damage including arthritis. Since service, available clinical findings have shown repeated diagnoses of arthritis in various joints. The veteran complains of pain and stiffness in numerous joints. Pursuant to the Board's remand, a VA examination was undertaken in 2007 for the purpose of obtaining an opinion as to the nature of the veteran's current disability in various joints. The VA examiner opined in a variety of ways. First, he opined that the veteran had "no" (or "not found") arthritis in the fingers, hands, bilateral wrists but found mild osteoarthritis in both knees which he felt was less likely than not due to his service. X-rays showed a possible avulsion fracture at the end of the styloid process of the left ulna, which was consistent with an in-service injury; but no conclusions were reached in that regard. A private physician has recently submitted a statement to the effect that the veteran was being treated for inflammatory arthritis possible related to his Gulf War service. The veteran had complaints in both knees, his hands and various finger joints, and wrists. VA clinical findings in 2007 showed arthritis and residuals of an old wrist fracture. The veteran had annotated the findings of the recent VA examiner's report. There seems to be some merit to some of his comments. And certainly there remain a number of questions as to the source of the veteran's joint symptoms. Both VA and private examiners have recommended various laboratory tests which would seem to reflect the possibility of a serological component to the arthritic symptoms. However, it has not been shown that these are positive and rheumatoid arthritis had not been confirmed or diagnosed. In any event, there remains the issue of whether the veteran does or does not manifest arthritis and to what it is attributable. And in deference to his long service, which included some joint trauma, and the off and on history of diagnoses of arthritis, the Board finds that additional evaluation might be helpful. Accordingly, the case is REMANDED for the following action: 1. 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). Up to date private and VA clinical records for his joint symptoms should be acquired and added to the file. And if the veteran had additional evidence which might be available with regard to his various joint disabilities and arthritis from the time of his active service until present, he should submit it, and VA should assist as feasible. 2. The veteran should be scheduled for a VA orthopedic evaluation by an examiner who has not previously evaluated him, to determine the nature and etiology of all current joint problems. Specifically, after review of the evidence of record, the examiner should opine as to the following (in the context of what is at least as likely as not): (a) What is the correct diagnosis(es) of all current joint disabilities and when were they first demonstrated and by what; (b) To what are each of these disabilities attributable; (c) Are they in any way attributable to anything of service origin, including in- service trauma; (d) is it at least as likely as not that any other joint problems were attributable to the right shoulder or left ankle problems already service connected, and by what is that determinable? (e) The Board notes that "at least as likely as not" does not mean merely with the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 3. The case should then be reviewed, and if the decision remains unsatisfactory, a supplemental statement of the case should be issued and the veteran and his representative should be given a reasonable opportunity to respond. The case should then be returned to the Board for final appellate consideration. The veteran need do nothing further until so notified. 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 Supp. 2007). ______________________________________________ ROBERT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs