Citation Nr: 18141761 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 10-08 408A DATE: October 11, 2018 ORDER Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for bilateral neurological disability of the upper extremities (including peripheral neuropathy), to include as secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to service connection for bilateral neurological disability of the lower extremities (including peripheral neuropathy), to include as secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s migraine headaches began during active service. CONCLUSION OF LAW The criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1969, which includes service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) from a May 2008 rating decision. The Veteran testified before a Veterans Law Judge (VLJ) at a May 2013 videoconference hearing and a transcript of the hearing has been associated with his claims file. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In September 2013, the Board granted the Veteran’s application to reopen the claim of service connection for migraine headaches and remanded the underlying service connection issue, as well as the issues of entitlement to service connection for bilateral neurological disability of the upper and lower extremities and entitlement to a TDIU for further development. In October 2017, the Board sent the Veteran a letter which informed him that the VLJ who conducted the May 2013 hearing was no longer employed at the Board, asked him to indicate whether he wanted to attend a new hearing, and indicated that a failure to respond within 30 days would result in an assumption that another hearing was not desired. See 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. This letter was sent to the Veteran’s address of record and was not returned as undeliverable. A copy of the letter was also sent to his representative. The Veteran did not respond to the October 2017 letter. Therefore, it is assumed that he does not want another hearing with respect to the issues of entitlement to service connection for migraine headaches and bilateral neurological disability of the upper and lower extremities, and the Board shall proceed to consider his appeal as to these issues. As for characterization of the issues on appeal, in light of the Veteran’s reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claims of service connection for bilateral peripheral neuropathy of the upper and lower extremities as claims of service connection for bilateral neurological disability of the upper and lower extremities (including peripheral neuropathy). See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Lastly, the Board notes that, during the pendency of this appeal, in an April 2014 rating decision, the agency of original jurisdiction (AOJ) denied service connection for left leg ulcer below the knee. In May 2014, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2016, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veteran’s Appeals) in December 2016, and a “Certification of Appeal” form (VA Form 8), pertaining to the left leg ulcer issue was completed later in December 2016. Regardless, the left leg ulcer issue cannot yet be addressed by the Board because there is a pending request for a Board hearing. This matter may be the subject of a future Board decision, if necessary. Entitlement to service connection for migraine headaches Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Certain chronic diseases, including organic diseases of the nervous system (e.g., migraine headaches), will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period (one year for organic diseases of the nervous system) following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board concludes, for the following reasons, that the Veteran has a current diagnosis of migraine headaches and that this disability began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). As a preliminary matter, the Board notes that the Veteran has reported on various occasions that he experienced headaches prior to service. Regardless, 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 thereto and was not aggravated. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). Although the Veteran is certainly competent to report a history of headaches prior to service, a veteran’s report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). There is no other evidence of any pre-existing headache disability prior to service and the Veteran’s August 1966 entrance examination was normal other than for pes planus, a left wrist scar, and defective vision. Therefore, the Board finds that the evidence is not clear and unmistakable that any headache disability pre-existed service and was not aggravated in service and the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. The report of a November 2015 VA headache examination shows the Veteran has a current diagnosis of migraine headaches. There is also evidence of headaches in service and evidence of continuous headaches in the years since service which indicates that the current migraine headaches were incurred in service. In this regard, service treatment records document numerous instances of treatment for recurrent and worsening headaches, occasionally associated with aura, during the period from September 1966 to August 1969. Diagnoses of migraine headaches, tension headaches, and psychogenic headaches were provided. Moreover, the Veteran’s post-service medical records and lay statements indicate that his headaches have continued in the years since service. The Veteran is competent to report continuous headaches in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict his reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous headaches in the years since service are credible. In sum, the evidence reflects that the Veteran experienced headaches in service and that there have been continuous headaches in the years since service. He has also been diagnosed as having current migraine headaches. There is no medical opinion that is specifically contrary to a conclusion that the current migraine headaches had their onset in service. Rather, the medical opinions of record only address whether pre-existing headaches were aggravated in service. As explained above, the Veteran is presumed sound at service entrance. Hence, the relevant question in this instance is whether his current headache disability was incurred in service. In this regard, the Board finds that the preponderance of the evidence indicates that the current migraine headaches (i.e., an organic disease of the nervous system) had their onset in service. Thus, entitlement to service connection for the currently-diagnosed migraine headaches is warranted. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND 1. Entitlement to service connection for bilateral neurological disability of the upper and lower extremities, to include as secondary to service-connected type II diabetes mellitus, are remanded. The Veteran contends that he has bilateral neurological disability of the upper and lower extremities that is related to his service-connected type II diabetes mellitus. In the alternative, he contends that the disability is related to his presumed exposure to herbicide agents (including Agent Orange) in Vietnam. The Board also points out that the Veteran’s service treatment records include an October 1967 record of treatment for left hand weakness, which was identified as sensory dysfunction of the median nerve. Medical opinions have been obtained as to whether the Veteran’s claimed neurological disability is caused or aggravated by his service-connected diabetes mellitus. Nevertheless, the Board cannot make a fully-informed decision on the issues of entitlement to service connection for bilateral neurological disability of the upper and lower extremities because no VA examiner has opined whether the claimed neurological disability is directly related to disease or injury in service, to include the Veteran’s left upper extremity neurological problems and his exposure to herbicide agents. Hence, a remand is necessary to obtain such an opinion. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are contained in the St. Louis Vista electronic records system and are dated to May 2017. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issues on appeal. A remand is required to allow VA to obtain them. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. Unfortunately, there has not been substantial compliance with the Board’s September 2013 remand directive regarding the issue of entitlement to a TDIU. In the September 2013 remand, the Board instructed the AOJ to issue an SOC as to the issue of entitlement to a TDIU, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), now codified at 38 C.F.R. § 19.9. The AOJ has not issued an SOC as to the TDIU matter. Hence, another remand of the TDIU issue is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Send the Veteran and his representative an SOC that addresses the issue of entitlement to a TDIU. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for neurological disability of the upper and lower extremities, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for neurological disability of the upper and lower extremities from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records contained in the St. Louis Vista electronic records system for the period since May 2017; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s bilateral neurological disability of the upper and lower extremities. The clinician must opine whether any neurological disability of the upper and lower extremities experienced by the Veteran since approximately July 2007 at least as likely as not (1) began during active service; (2) had its onset in the year immediately following service; or (3) is related to an in-service injury, event, or disease, to include the left upper extremity neurological problems in October 1967 which are documented in the Veteran’s service treatment records and his presumed exposure to herbicide agents (including Agent Orange). The clinician must provide reasons for each opinion given. In this regard, the fact that a specific disability is not on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. David Gratz Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel