Citation Nr: 1608453 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 09-19 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for migraine headaches, to include as due to a qualifying chronic disability. 2. Entitlement to service connection for bursitis and degenerative joint disease of the left shoulder (a left shoulder disability). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and M.E. ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had a period of active duty for training from March 1989 to September 1989, served on active duty from November 1990 to May 1991, and had subsequent service in the United States Army Reserve until June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2011, the Veteran testified in a Videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In March 2012 and August 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has also reviewed the Virtual VA system to ensure a complete assessment of the evidence. The issue of entitlement to service connection for a left shoulder disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's current migraine headaches are manifested by a continuity of symptomatology, which has persisted since his period of active service. CONCLUSION OF LAW The Veteran's current migraine headaches are presumed to have been incurred during his active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset of its discussion, the Board observes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) need not be addressed in light of the favorable disposition, below. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Additionally, as is relevant here, service connection may be rebuttably presumed for chronic diseases, enumerated under 38 C.F.R. § 3.309(a), which manifest in service or within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). Such diseases, which include migraine headaches and other organic diseases of the nervous system, may also be presumptively linked to service based upon continuity of symptomatology. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran contends that he started having headaches when he was in the Persian Gulf. He also noted that he began self-medicating for his headaches in 1991 and did not seek treatment prior to 1994 because he did not have medical insurance until that time. See November 2012 statement. During the December 2011 Board hearing, the Veteran stated that he began having headaches daily since he came back from active duty. Although the March 1989 service treatment record has raised a question of whether the Veteran's headaches preexisted his active service, the report of the Veteran's February 1989 Navy Reserve service entrance examination is silent for any complaints or clinical findings of migraines or related symptoms. As such, he is presumed to have been sound upon entry with respect to his current headache disorder. See 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015) (directing that 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service). Moreover, the record does not clearly and unmistakably show that such a disorder preexisted service so as to rebut the presumption of soundness. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (stating that clear and unmistakable evidence is evidence that 'cannot be misinterpreted and misunderstood, i.e., it is undebatable' (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999))). It follows that the Veteran's migraine headaches claim is one for service connection, without consideration of the tenets governing preexisting conditions. See Quirin, 22 Vet. App. at 396. To prevail under any of the applicable theories of service connection outlined above, there must first be a showing of current disability. In this case, that threshold requirement has been met through the Veteran's VA and private medical records, which document his extensive treatment for migraine headaches. See e.g. January 1996 private treatment record (indicating an assessment of headache, probably migraine); April 2010 VA examination report (indicating current diagnosis of migraine without aura). Accordingly, the Veteran's claim turns on whether the remaining service-connection elements (in-service incurrence or aggravation and nexus) have been substantiated. With respect to the first of these two remaining elements, the Veteran's service treatment records reflect a complaint and diagnosis of headaches in March 1989, subsequent to the February 1989 entrance examination, but prior to the initial dates of active duty for training or active duty. Additional service treatment records are negative for any complaints, diagnoses, or treatment of headaches. Nevertheless, the lack of such contemporaneous clinical evidence does not render the Veteran's reports of in-service headaches inherently incredible, nor does it undermine the credibility of his account of continuous post-service headaches. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (noting that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). Moreover, while a layperson, the Veteran is presumed competent to attest to such in-service and post-service symptoms, which he has personally experienced. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313 at 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. A lay person is competent to identify a headache, and the Veteran's lay testimony describing headache symptoms in service supports the later diagnosis of migraines by VA medical professionals. The Veteran also submitted lay statements from his brother and sister noting that the Veteran experienced headaches upon return from active duty. The Board thus finds that the Veteran's lay evidence is sufficient to establish that he experienced chronic headaches during and since service. There is no contrary evidence indicating that the headaches did not begin in and continue after service. Accordingly, having established that the Veteran's assertions of in-service and post-service headaches are both credible and competent, the Board finds his statements in this regard supports his claim for service connection on a presumptive basis. The Veteran effectively contends that his chronic migraine headaches have been manifested by a continuity of symptomatology since he left active duty. See 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1338-40. A theory of direct entitlement has been discounted by the VA clinician who examined the Veteran in April 2010 and October 2011. According to the April 2010 VA examination report, the examiner opined that the Veteran's migraine headaches are less likely than not secondary to a specific exposure event because there is no information in the medical literature to suggest that exposure to smoke, pesticides from oil well fires, pesticides and insecticides, indigenous infectious diseases, solvent and fuel fumes, smoke or particles from burn pit fires, or ingestion of pyridostigmine bromide tablets, inhalation of ultra-fine grain sand particles, or the combined effect of multiple vaccines administered, have been etiologically linked to migraine headaches. In the October 2011 VA examination report, the examiner noted that the Veteran's migraine headaches were less likely than not incurred in or caused bu the claimed in-service injury, even, or illness because there is no other evidence of complaint of headache between 1989 and the release from active service date of 1991. She further explained that the slight headaches in 1989 are not consistent with the symptomatology of migraine headaches which the Veteran first described in 1995 and there is no link between the 1995 migraine headaches development and the 1989 incident while on active duty. In addition, she noted that his first documentation of headache was in 1995 and this headache remained consistent over the years including with the headache described in April 2010. Although the examiner acknowledged the Veteran's complaint that he began to experience headaches shortly after returning from the Gulf; it appears she did not consider the Veteran's assertions regarding continuity of symptomatology. Here, there is no competent medical opinion evidence that negates the theory of continuity of symptomatology as it pertains to the Veteran's migraine headaches claim. Accordingly, resolving all reasonable doubt in the Veteran's favor, the Board finds that the lay and clinical evidence, summarized above, collectively demonstrates that that the Veteran's headaches had their onset in service and service connection for his migraine headaches is warranted under the provisions of 38 C.F.R. § 3.303(b) and Walker, 708 F.3d at 1338-40. The Veteran's appeal is therefore allowed as to that issue. ORDER Entitlement to service connection for migraine headaches is granted. REMAND Regarding the Veteran's claim for a left shoulder disability, records reflect a diagnosis of bursitis in 2005 and degenerative joint disease beginning in 2010. The Veteran underwent a VA examination is April 2012 wherein the examiner incorrectly stated that the Veteran was first diagnosed with a left shoulder disability in 2006. In October 2015, the Veteran underwent another VA orthopedic examination pursuant to the August 2015 Board remand. As to the diagnosed left shoulder disorders, to include bursitis and degenerative joint disease, the examiner opined that the current shoulder disabilities are less likely than not related to military service. She indicated that there was no evidence of any symptoms of any shoulder disability in service and that there is no evidence to indicate that the Veteran developed his first shoulder symptoms within three years of discharge. The Board finds this opinion inadequate as it contradicts the evidence of record. Indeed, the Veteran has repeatedly contended that he had left shoulder pain in service and since service separation. See June 2008 statement. The Veteran also submitted a buddy statement reflecting that the Veteran hurt his shoulder at least twice while in Saudi Arabia and has been complaining about his shoulder pain since. See January 2008 statement. While the examiner assumed as fact that the Veteran was first diagnosed with bursitis in May 1995 (as directed in the August 2015 Remand), she did not address the lay contentions from the Veteran and his friend. As such, an addendum medical opinion is necessary to assist the Board in determining the etiology of the Veteran's left shoulder disability. Accordingly, the case is REMANDED for the following actions: 1. If possible, request that the medical professional who conducted the October 2015 VA examination review the entire record and provide an addendum medical opinion. The entire record must be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report. If the October 2015 examiner is not available, obtain the requested opinion from another appropriate medical professional. If the examiner determines that an additional examination of the Veteran is necessary to provide reliable opinions as to causation, such examination should be scheduled. As to each disability diagnosed, to include bursitis and degenerative joint disease, the examiner is requested to provide an opinion on the following: Is it at least as likely as not (a 50 percent probability or greater) that any current left shoulder disability, began during service or is otherwise etiologically related to some incident of active duty? The examiner should address whether any current arthritis of the left shoulder consistent with the with the lay evidence of Veteran as to complaints of shoulder pain in service. In the event that the examiner finds that any current left shoulder disability is unrelated to service, the examiner must explain why the Veteran's assertions of symptomatology since service, specifically shoulder pain, are unrelated to any current diagnosis. 2. After completing any additional notification and/or development action deemed warranted by the record, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs