Citation Nr: 1753617 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-06 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen the previously denied claim of entitlement to service connection for migraine headaches. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for myalgia involving both lower extremities with cramping, to include neurogenic claudication. REPRESENTATION Appellant represented by: Jan Dils, Attorney ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION March 1 The Veteran served on active duty from August 1988 to March 1992. These matters come from the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue of entitlement to service connection for migraine headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in July 2010, the RO denied the Veteran's claim of entitlement to service connection for migraine headaches. 2. Evidence added to the record since the final July 2010 decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim of service connection for migraine headaches. 3. The competent credible evidence of record is against a finding that the Veteran's myalgia involving both lower extremities with cramping, to include neurogenic claudication, was caused or aggravated by his active service, or otherwise etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of a final July 2010 decision, the criteria for reopening the claim service connection for migraine headaches have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for myalgia involving both lower extremities with cramping, to include neurogenic claudication, have not been met. 38 U.S.C. §§ 1110, 1137, 5107 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence A. Legal Principles and Regulations In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). B. Analysis Here, in a September 2008 rating decision, the RO denied the Veteran's claim for service connection for migraine headaches for a lack of both a current disability and in-service occurrence. In a July 2009 rating decision, the RO confirmed and continued the previous denial of service connection for migraine headaches for the same reasons. In September 2009, the Veteran filed a notice of disagreement (NOD). In a July 30, 2010 Statement of the Case (SOC), the RO denied the Veteran's claim for service connection for migraine headaches for a lack of evidence that shows that this condition was incurred in service or that the Veteran's current migraine condition was caused by service. On December 14, 2010, VA received the Veteran's substantive appeal. However, because the Veteran's substantive appeal was untimely filed, the July 30, 2010 decision is final. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In March 2011, the Veteran submitted a claim to reopen his claim for entitlement to service connection for migraine headaches. The evidence of record at the time of the final prior decision in July 2010 included, inter alia, the Veteran's service treatment records and post-service treatment records (including VA treatment records, Raleigh Neurology Associates medical records, and Boylan Healthcare medical records), the Veteran's lay statements, and a buddy statement from the Veteran's niece, M.J.W. The evidence submitted and obtained since the July 2010 SOC includes a private medical opinion dated October 27, 2010 authored by Dr. J.A.E., medical records authored by Dr. C.L.F., and VA treatment records from December 2008 to November 2016. Upon review, the Board finds this evidence is both new and material sufficient to reopen the Veteran's claim. The evidence is "new" as it had not been previously considered by VA, and the evidence is "material" because it relates to unestablished facts necessary to substantiate the underlying secondary service connection claim. Specifically, the October 2010 medical opinion authored by Dr. J.A.E. supports a finding of competent evidence that the Veteran's migraines may have been related to his active service. Medical records from Dr. C.L.E. support a finding of competent evidence that the Veteran had a history of migraines. The VA treatment records support a finding of competent evidence that the Veteran had continued symptomology associated with and treatment for his migraines, to include the Veteran's report of onset in 1988 (during service). Thus, as the evidence is new and material, reopening of the claim is in order. Shade, 24 Vet. App. 110. I. Service Connection A. Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. B. Analysis The Veteran seeks service connection for myalgia involving both lower extremities with cramping, which he relates to his service. Specifically, the Veteran contends that in 1991, when training for the infantry during service, he experienced chronic achy leg pains (cramps at night) and the pain has continued since his separation from service. See December 30, 2008 VA Durham medical record. With respect to the first element of service connection, a current disability, the Veteran was diagnosed with neurogenic claudication secondary to lumbar spinal stenosis in December 2015. Thus, the first element of service connection is satisfied. The Board notes that the Veteran's service treatment records contain a March 1988 induction report of medical history, where the Veteran complained of cramps in his legs. The Veteran provided that he experiences "leg cramps after a run." However, the accompanying report of medical examination indicated the Veteran had normal lower extremities. Here, although the Veteran noted leg cramps during his enlistment examination, the Board finds that the presumption of aggravation does not apply. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (when no pre-existing condition is noted upon entry into service, the veteran is presumed sound). This is because, as stated by the January 2016 VA examiner in a medical addendum opinion, the Veteran's symptom of leg cramps was not a specific diagnosis of a leg condition upon entry to service. The VA examiner explained that experiencing leg cramps after a run was non-specific and not uncommon among young men. Furthermore, the VA examiner noted that the Veteran's extremities were clinically normal upon entrance to service. Thus, the VA examiner opined that based on these findings, one cannot state with reasonable degree of certainty that the Veteran entered service with a clear and unmistakable leg condition. Given such, the Board finds that there is not clear and unmistakable evidence that the Veteran's leg condition preexisted service; thus, the presumption of aggravation is not for application. Additionally, the Board notes that while the November 2008 VA examiner diagnosed the Veteran with myalgia involving the lower extremities, myalgia is pain in a muscle. See Dorland's Illustrated Medical Dictionary 1214 (32nd ed. 2012). Thus, myalgia of the lower extremities alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). With respect to the second element of service connection, in-service incurrence or aggravation of a disease or injury, in the Veteran's March 1988 induction examination report, the Veteran complained of cramps in his legs. Thus, the second element of service connection is satisfied. Therefore, the dispositive issue in this case is with respect to the third element, a causal relationship, i.e., nexus between the claimed in-service disease or injury and the current disability. Although the Veteran noted leg cramps upon entrance to service, the Veteran's service treatment records are silent for any complaints or treatment of a leg condition. Upon discharge from service, the Veteran elected not to undergo a separation medical examination. In a May 2003 medical record, Dr. D.K. noted that the Veteran reported that about a month prior, he began to experience some problems with cramps. These were described as being predominantly nocturnal and occurring in the backs of both legs, both in the hamstrings, and in the calf muscle region. Dr. D.K. assessed the Veteran with cramps without detectable weakness with elevated cretine kinase. Furthermore, Dr. D.K. recommended that it would be important to determine if there is an underlying inflammatory myopathy, whether this was secondary to an endocrine disturbance or primary disease of muscle or related to disease of motor neuron that would be discerned by some additional serologic workup and electromyography (EMG)/nerve conduction studies. Thus, the Board notes that at the point, Dr. D.K. was not able to make a discernable diagnosis of a leg disability. In a November 2008 VA examination report, the Veteran reported he is in constant pain in both lower extremities. The Veteran reported that he has had these problems for many years since he was on active duty. The VA examiner noted that the Veteran has a history of leg cramps, as was noted on the Veteran's pre-induction physical examination report. The VA examiner noted there was no documentation of any treatment for cramping in the legs when the Veteran was on active duty. The VA examiner diagnosed the Veteran with myalgia involving both lower extremities with cramping. The VA examiner opined that he cannot really connect the Veteran's present condition of pain in the legs with the condition noted prior to the Veteran's service, without resorting to unfounded speculation. This is because, the VA examiner explained, that he only found one citation for cramps following running on the pre-induction physical. Also, the VA examiner noted there was no evidence of treatment for cramping or leg problems during service. In a March 2009 buddy statement by the Veteran's niece, N.J.W., stated that before the Veteran entered the Army he was in very good health, and did not complain of any health problems as far as legs pains, migraines or hand pain. Upon his release, N.J.W. stated that she noticed things were not the same, and as time passed, the Veteran complained of leg pains and migraines. In a medical opinion dated September 21, 2009, Dr. C.W. stated in a single conclusory sentence that the Veteran has myalgia temporally related to his military service. However, as previously discussed above, myalgia is a symptom of pain and not a diagnosis of a leg disability. Furthermore, as no rationale for the opinion was provided, it is not afforded any probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). In December 2015, the Veteran was seen for his chronic muscle aches. Based upon the results the neurological examination, the VA examiner noted there was no evidence of myopathy or myositis. The VA examiner noted the Veteran's EMG shows no evidence of myopathy. Ultimately, in an associated addendum note, the VA examiner concluded that the Veteran's lower extremity complaints are more suggestive of neurogenic claudication likely due to his severe lumbar stenosis. In January 2016, the Veteran underwent VA examinations for peripheral nerves conditions, back conditions, and knee and lower leg conditions, in order to ascertain the etiology of the Veteran's myalgia of the lower extremities with cramping. In terms of his medical history, the Veteran reported that he has experienced chronic bilateral lower extremity leg pain for the past 15 years, which is constant. In the January 2016 (Disability Benefits Questionnaire) DBQ for a back condition, the VA examiner noted that the Veteran's leg pain, tingling, and numbness in his feet mimic the symptoms of lumbar radiculopathy. Also, the VA examiner noted that the MRI of the lumbar spine showed epidural lipomatosis with severe spinal canal narrowing from L3-L5, causing the Veteran's leg symptoms. Thus, the VA examiner noted the diagnosis of lumbar neurogenic claudication. In the January 2016 DBQ for peripheral nerve conditions, the VA examiner noted that the Veteran's constant (moderate) pain, numbness (mild), and paresthesias and/or dysesthesias (mild) of the bilateral lower extremities was attributed to a peripheral nerve condition of neurogenic claudication secondary to lumbar spinal stenosis. In the January 2016 DBQ for knee and lower leg conditions, the VA examiner noted the Veteran does not have a current diagnosis associated with his myalgia of the lower extremities. Based on the January 2016 DBQ results, the VA examiner ultimately opined that the Veteran's current condition of neurogenic claudication secondary to spinal stenosis is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale provided, the VA examiner goes through the Veteran's medical history explaining the basis of his opinion. First the VA examiner looked on the onset of treatment for the Veteran's leg cramps. On May 27, 2003, the Veteran reported to his neurologist that one month prior, he began to experience some problems with cramps. The January 2016 VA examiner noted that this indicated a new and recent onset of leg cramps. Next, the VA examiner referred to the Veteran's diagnostic testing results. The January 2016 VA examiner noted that the May 2003 and the August 2010 EMG of the Veteran's lower extremities were normal. In particular there was no evidence of myopathy or myositis. In addition, the VA examiner noted there was no evidence of focal mononeuropathy or diffuse polyneuropathy. Also, the VA examiner noted that based on the February 2011 MRI results, the Veteran was diagnosed with neurogenic claudication. A November 2015 MRI of the lumbar spine, showed epidural lipomatosis with severe spinal canal narrowing from L3-L5, slightly worse at L4-L5 as compared to prior February 2011 MRI. In December 2015, the Veteran was evaluated at the Durham VAMC neurology clinic. He had chronic bilateral lower extremity leg pain, which he described as cramping, located in calves and quads, which was constant. He had a diagnosis of neurogenic claudication. Thus, the Veteran's diagnostic and neurological testing revealed a diagnostic of neurogenic claudication. The January 2016 VA examiner further explained that neurogenic claudication is a common symptom of lumbar spinal stenosis. Neurogenic means that the problem originates with a problem at a nerve, and claudication, from the Latin word for limp, because the patient feels a painful cramping or weakness in the legs. The pathophysiology is thought to be ischemia of the lumbosacral nerve roots secondary to compression from surrounding structures, hypertrophied facets, ligamentum flavum, bone spurs, scar tissue, and bulging or herniated discs. The VA examiner noted that neurogenic claudication is due to compression of the lumbosacral nerve roots from epidural lipomatosis (fatty tissue). Lastly, the January 2016 VA examiner also noted that the September 2009 physician statement by Dr. C.W. only gave the symptom of myalgia without a specific diagnosis and without a supporting rationale. As previously discussed, myalgia of the lower extremities alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. Sanchez-Benitez, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Therefore, based on the forgoing, the Board notes that the etiology of the Veteran's myalgia of the lower extremities is not related to his active service. As thoroughly explained by the January 2016 VA examiner, the Veteran's myalgia of the lower extremities, what the Veteran describes as chronic leg cramps, is due to a peripheral nerve condition called neurogenic claudication, a common symptom of lumbar spinal stenosis. In other words, as explained by the January 2016 VA, the problem originates with a problem at the nerve which causes the patient to feel cramping and weakness in his legs. The VA examiner noted that neurogenic claudication is due to compression of the lumbosacral nerve roots from epidural lipomatosis (fatty tissue). Therefore, the Veteran's myalgia of the lower extremities is caused by neurogenic claudication secondary to his non-service connected lumbar spinal stenosis and not caused by his service. Additionally, the Board finds that the evidence does not establish service connection by continuity of symptomology. Although the Veteran complains of leg cramps since service, the competent medical evidence, specifically the January 2016 VA examiner's opinion, reveals that the Veteran's leg cramping condition is not related to his service, rather it is likely secondary to his severe lumbar stenosis. Thus, the evidence, including that pertinent to service, does not establish that the Veteran's leg condition was incurred in service. 38 C.F.R. § 3.303(d). Give such, as the competent medical evidence does not reflect that the Veteran's leg condition had its onset during service, or is otherwise related to his period of active service, the third element of service connection is not satisfied. To the extent that the Veteran and his niece have offered his opinion that the Veteran's chronic leg cramping is related to his active service, these statements appear to pertain to an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("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"). Given such, it cannot be stated that the Veteran or his niece are competent to provide a nexus statement. All in all, the Veteran and his niece's lay statements have been reviewed and considered. However, the Board finds that the competent medical evidence, particularly the January 2016 medical opinion that finds that the Veteran's myalgia of the lower extremities is not related to service, which set forth an accurate medical history, considered the Veteran's lay statements, and was formulated after a review the Veteran's claims file, is highly probative as the VA examiner applied medical analysis to the significant facts of the case to reach the conclusions expressed in the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Therefore, based on the foregoing, the claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. ORDER New and material evidence having been received; the claim of entitlement to service connection for migraine headaches is reopened. Entitlement to service connection for myalgia involving both lower extremities with cramping, to include neurogenic claudication, is denied. REMAND In regards to the Veteran's claim for service connection for migraines, having received new and material evidence in support of this claim, the Board finds a remand is warranted as further development is required. To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of his migraines. The duty to assist is triggered when it is necessary to obtain an examination to make a decision in the case. See 38 U.S.C. § 5103A (d) (West 2012). An examination or medical opinion is warranted when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran's medical treatment records reflect a current diagnosis of migraine headaches. Additionally, the Veteran contends that he developed migraines headaches during service, with an onset in 1988. See December 30, 2008 VA Durham medical records. Specifically, the Veteran contends that although he suffered from migraine headaches during service (after going through a gas chamber during service), he treated his migraines as a regular headache and took over the counter medication for relief. See December 16, 2009 Statement in Support of Claim. Additionally, in a September 2009 medical opinion Dr. C.W. stated in a single conclusory sentence that the Veteran's headaches are temporally related to his service. However, as no rationale for the opinion was provided, it is not afforded any probative value. See Nieves-Rodriguez, 22 Vet. App. at 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Therefore, the Board finds that the record indicates that the Veteran's migraine headaches may be associated with active service, and consequently, in order to make a decision on the claim a VA examination to determine the nature and etiology of the Veteran's migraine headaches is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and non-VA medical records and associate with the claims file. 2. Schedule the Veteran for a VA examination to determine the onset and etiology of his migraine headaches. The examiner is required to review the claims file. The examiner should provide an opinion to the following: Whether it is at least as likely as not (50 percent or greater probability) that any migraine headache disability began in active service; or is due to an injury or disease during such service. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's ongoing reports of migraine headaches. S/HE should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. A complete rationale should be provided for any opinion stated. If the requested opinion cannot be rendered without resorting to speculation, the examiner should state why an opinion cannot be provided. 3. When the development requested has been completed, the case should be readjudicated by the AOJ. If any benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). 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. §§ 5109B, 7112 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs