Citation Nr: 1328776 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 08-33 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a respiratory disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from February 2006 to December 2006. She had an earlier period of National Guard service from February 1998 to September 2000, and continues to have ongoing service with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In January 2013, the Board remanded the entire matter for further development. Upon remand, the agency of original jurisdiction (AOJ) issued a rating decision in June 2013 granting service connection for PTSD, effective from December 2006. Thus, that matter is no longer in appellate status before the Board. See 38 C.F.R. §§ 20.200, 20.201, 20.302; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining issues have been returned to the Board for further appellate review. FINDINGS OF FACT 1. The weight of the competent evidence is in relative equipoise on the question of whether the Veteran's current migraine headache condition was incurred coincident with her active duty service in Afghanistan. 2. A respiratory disorder manifested by chronic rhinitis and sinusitis, which clearly and unmistakably preexisted service, is not shown by clear and unmistakable evidence to have not been aggravated during the Veteran's active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013). 2. The criteria for service connection for a respiratory disability manifested by chronic rhinitis and sinusitis have been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002) ; 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that migraine headaches and respiratory problems first started during her deployment to Afghanistan or were worsened therein. As a preliminary matter, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, the disposition is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. A. Applicable Law Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). However, in all cases, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). In other words, when no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). The presumption of sound condition does not apply where an entrance examination was not performed contemporaneous with entry to a period of service, because "[i]n the absence of such an [entrance] examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based." Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Gilbert, 26 Vet. App. at 52. If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Conversely, the burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. If a veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert, 26 Vet. App. 48, 53 (2012) (noting that such a finding establishes the second element of service connection). However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a veteran must nonetheless establish that a current disability is related to the in-service injury or disease. See id. (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.")). Notwithstanding the presumptions of soundness and aggravation, service connection may alternatively be granted for a disability that is proximately due to or the result of a service-connected disability, which includes the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Aggravation, for VA purposes, is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. 38 C.F.R. § 3.310(b) (2013). (The provisions of 38 C.F.R. § 3.310 were amended in October 2006, which was prior to the Veteran filed the instant claim.) Accordingly, to prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). B. Discussion - Migraine Headaches Here, the record on appeal confirms a current diagnosis of migraine headaches. This diagnosis was first made at VA in March 2007. Further, the record establishes that the Veteran experienced headaches during her service. Specifically, the Veteran competently and credibly maintains that she first had migraine headaches during service in Afghanistan. These facts are not materially in dispute, and, as such, they establish the existence of a present disability and an in-service incurrence of a disease. See Walker, 708 F.3d at 1333. Consequently, the remaining issue before the Board concerns whether a causal relationship ("nexus") is shown to exist between the present migraine headache disability and the in-service migraines. On this question, the Board finds that the evidence is in a state of relative equipoise in showing that it is at least as likely as not that the Veteran's current migraine condition was incurred coincident with her active duty service. First, the VA treatment records, consistent with her own lay testimony, confirm that she has experienced ongoing migraine headaches after service. Second, the Veteran underwent a VA examination in February 2007. The VA examiner opined that per the Veteran's history, the migraines "began after she was discharged from service in [October 2006]," and there is no evidence that these headaches were due to any service-related injury or exposure. The Board observes that, contrary to the examiner's statement, the Veteran was not actually separated from active duty service until December 2006. Therefore, the VA examiner's factual premise was incorrect. In light of this mistake, the VA examiner's opinion and justification actually tends to support an onset during service, as the VA examiner essentially reasoned from the factual premise that her migraines started in December 2006, while still on active duty service. The Board finally notes that an August 2008 VA psychiatric report notes an assessment of chronic headaches likely attributable to PTSD/stress component. Because the Veteran is currently service-connected for PTSD, this record supports a secondary theory of entitlement. See 38 C.F.R. § 3.310 (2013). In light of this evidentiary record, which supports both the direct and secondary theories of entitlements, the Board finds the evidence to be at least in a state of relative equipoise on all material elements of the claim. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.301 (2013). Accordingly, by extending the benefit of the doubt to the Veteran, service connection is warranted. As a corollary matter, the Board observes that some evidence of record reflects complaints of headaches as a symptom of the Veteran's allergic rhinitis and sinusitis. This evidence does not material alter the Board's analysis. Rather, such evidence concerns the severity and degree of which symptomatology may be attributed to each respective disorder, which is a matter that must be addressed when assigning an initial disability rating for the disability. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (explaining that "the appropriate time to consider the veteran's symptoms is when determining the amount of compensation to which the veteran is entitled."). C. Discussion - Respiratory Disorder With regard to the claimed respiratory disorder, the Board finds that service connection must be granted. Regarding the existence of a present disability, the evidence confirms a diagnosis of chronic allergic rhinitis and sinusitis. Specifically, a May 2013 VA examiner diagnosed this condition. Accordingly, the existence of a present disability, manifested by chronic rhinitis and sinusitis is established. Otherwise, a current respiratory condition other than chronic allergic rhinitis and sinusitis is not shown. A May 2013 VA examination establishes that the Veteran recently had pneumonia (resolved by the time of the examination), but that she does not have any other lower respiratory condition (such as asthma). A prior examination in February 2007 likewise establishes that the Veteran does not have a respiratory condition other than chronic rhinitis and sinusitis. Due to the absence of a diagnosed disability, service connection may not be established for a lower respiratory condition. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to having a current disability, the Veteran competently and credibly asserts that symptoms of her rhinitis and sinusitis were present while in Afghanistan. The foregoing facts are not materially in dispute. As such, they establish the existence of a present disability and in-service incurrence or aggravation of a disease. See Walker, 708 F.3d at 1333. In other words, these two predicate findings establish that the Veteran has a current respiratory condition that was manifested, at least to some degree, during service. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). However, the evidence of record next presents the question of whether chronic allergic rhinitis and sinusitis preexisted service. On this question, service treatment records (STRs) show that the Veteran was examined in January 2006. This examination was conducted immediately prior to her entrance into active duty service in February 2006. Because it is contemporaneous with her entrance into service, the Board finds that it constitutes an entrance examination. See Smith, 24 Vet. App. at 46. This entrance examination does not note a respiratory disorder. To the contrary, clinical evaluation of the nose and sinuses was "normal." Of note, she endorsed a history of sinusitis and hay fever at that time, which the examiner noted as history of sinus infection, hay fever, seasonal sinusitis, and seasonal allergies. However, such documentation of her history does not constitute a "noted" disease for purposes of 38 U.S.C.A. § 1111. Accordingly, the Veteran is entitled to the presumption of soundness for this period of service. The record on appeal is not sufficient to rebut the presumption of soundness. Regarding the preexisting prong of the presumption of soundness, the evidence includes medical records from June 2002 and September 2005 undebatably confirming the preexisting condition. Thus, the preexisting prong necessary to rebut the presumption of soundness is satisfied. See Horn, 25 Vet. App. at 235. However, the record does not include clear and unmistakable evidence sufficient to rebut the aggravation prong of the presumption of soundness. See Id. On this question, the Veteran underwent a VA examination in May 2013. The VA examiner concluded that the Veteran's chronic rhinitis and sinusitis condition had its onset prior to service in June 2002. The examiner then noted the Veteran's complaints of symptoms frequently during service, which, according to the examiner, "likely represented a worsening compared to baseline seasonal rhinitis and sinusitis complaints." Notably, the May 2013 VA examiner opined that it is less likely than not that the disorder was permanently aggravated by service beyond the natural progress of the diagnosis. The examiner commented that it "appears" the Veteran's seasonal allergy and sinus problem returned to a similar intermittent pattern after return from deployment. The examiner explained that, in the years after deployment, there has been a pattern of intermittent sinus congestion, generally about once per year lasting for a period of several weeks. The VA examiner further reasoned that the Veteran was already taking considerable medication in 2002, "suggesting" that she had significant allergy problems then. The examiner finally observed that she is taking a similar amount of medication in recent post-deployment years. The May 2013 VA examiner concluded, essentially, that the worsening during service represented no more than a temporary flare-up. However, the VA examiner's opinion is particularly equivocal on this latter point. The examiner only found evidence "suggesting" significant allergy problems prior to service which "appear[]" to have returned to her baseline after service. Although the VA examiner relied on an accurate factual premise in reaching this conclusion, such an equivocal opinion does not meet the degree of certainty necessary to rebut the aggravation prong of the presumption of soundness. In other words, the VA examiner's opinion does not provide clear and unmistakable evidence that the increase in disability was due to the natural progression of the condition. Apart from the May 2013 VA examiner's opinion, the record on appeal does not contain any probative evidence addressing this complex medical question. And, although the totality of the medical evidence bears on this question, the Board, in its lay capacity, is unable to draw any inferences from the medical evidence. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds that no further development is necessary in this regard, because doing so would only be for the sole purpose is to obtain evidence against the claim. See Mariano v. Principi, 17 Vet. App. 305 (2003); cf Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009) (the Board may seek further evidentiary development if the favorable evidence, along with the other evidence of record, is not sufficient to allow the Board to make a fully informed decision). In light of the foregoing, the Board is unable to rebut the presumption of soundness. Because the remaining evidence establishes that the Veteran's chronic allergic rhinitis and sinusitis is related to the in-service disease, the claim is granted. 38 U.S.C.A. § 1111 (West 2002); Gilbert, 26 Vet. App. 53. ORDER Service connection for migraine headaches is granted. Service connection for a respiratory disorder manifested by chronic rhinitis and sinusitis is granted. ____________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs