Citation Nr: 18153317 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-36 542 DATE: November 27, 2018 ORDER Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to an increased rating for bilateral shin splints is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s migraine headaches are related to her service. CONCLUSION OF LAW The criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served intermittently on active duty, active duty for training and inactive duty for training from March 2001 to June 2011. This matter is before the Board of Veteran’s Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville Tennessee. Service Connection 1. Entitlement to service connection for migraine headaches. I. Legal Criteria Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also 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. 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. § 5107(b); 38 C.F.R. § 3.102. II. Factual Background The Veteran has a current diagnosis for migraine headaches. She was first diagnosed with migraine headaches in December 2008 by a private treating physician during a neurological consultation. During active duty, the Veteran was seen in sick call for headaches on several occasions having gone to the emergency room for more severe occurrences. Currently, the Veteran states her migraine headaches are severe throbbing and constant aching pain to the frontal aspect of the head and around the eyes, lasting up to 1-3 days. The Veteran that during headaches she sees black spots in her eyes and has pain on movement of the eyes while also being sensitive to light and noise. The Veteran is prescribed Topamax and Maxalt to deal with her symptoms. III. Analysis The Veteran contends that her migraine headaches are related to her service. As noted above, the evidence of record confirms that the Veteran has a current disability. The Veteran was diagnosed with migraine headaches during a December 2008 neurological consultation. This diagnosis was continued in February 2009 during a follow-up consultation. See February 2009 Progress Note. March 2010 STRs confirm that the Veteran reported to sick call complaining of migraine headaches. Accordingly, the Veteran has a current disability and the first element permitting entitlement to service connection is satisfied. The evidence also reflects that the Veteran’s migraine headaches had their incurrence in service and that her symptoms have persisted since that time. In that regard, the Veteran is competent to provide evidence regarding the persistence of her migraine headache symptoms, when she first noticed them, and the circumstances of her in service treatment, because she has first-hand experience and these are observable by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that lay statements are competent evidence as to observable features or symptoms of an injury or illness but are not competent as to complex medical questions). In a May 2012 Statement in Support of Claim (VA 21-4138), the Veteran stated that she began to have headaches every 2 weeks in 2005 towards the end of her deployment. The Veteran has been repeatedly diagnosed with migraines since her diagnosis in December 2008. In February 2009, she received a follow-up neurological consultation and her migraine diagnosis was continued. She was treated for migraines in March 2010 at a VA clinic, the examiner continued her migraine diagnosis. In an August 2017 Correspondence, the Veteran stated that she continues to experience migraine headaches and that she must “continuously take maintenance med[ication]s for them.” There is no evidence that her symptoms have abated since her 2008 diagnosis and she has been consistently using medication to manage migraine headaches since that time. The evidence also includes an April 2015 medical opinion from a private treating physician which states that it is more likely than not that the headaches the Veteran reportedly experienced during service in 2005 were the onset of her migraines that were diagnosed in 2008. The examiner reasoned that the Veteran’s description of headaches and her concurrent sleep disorder are consistent with the Veteran’s migraine diagnosis. The examiner noted and discussed the Veteran’s entire medical history with respect to her migraines. The Board assigns this opinion significant probative weight. The physician demonstrated a familiarity with the Veteran’s medical background, used the correct standard of review and included an adequate rationale to support the conclusion. Further, the physician’s findings are consistent with the Veteran’s medical history and credible lay statements. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). In light of the above, the Board finds that direct service connection for migraine headaches is warranted. The competent and credible evidence supports a current disability and a relationship between the migraine headaches and service because the symptoms began in service and have persisted since then. Accordingly, the Board finds that the preponderance of the evidence supports the claim and entitlement to service connection for migraine headaches is granted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990 REASONS FOR REMAND 1. Entitlement to an increased rating for bilateral shin splints is remanded. The Veteran is seeking a higher disability rating for service-connected bilateral shin splints that are currently rated as 10 percent disabling. Although the Board sincerely regrets the additional delay, further development is necessary prior to the adjudication of the claim. The Board notes that the Veteran was provided with a VA examination in March 2014 to determine the current severity of her bilateral shin splints. However, in light of the U.S. Court of Appeal for Veteran’s Claims (Court) decision in Corriea v. McDonald, 28 Vet. App. 158 (2016), the examination does not provide the Board with the information needed to decide the claim. In Correia, the Court found that under 38 C.F.R. § 4.59, a VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (as appropriate), and, if possible, with rating of motion measurements of the opposite undamaged joint. To date, the Veteran has not been afforded a VA examination that includes such testing. As such, per Corriea, the examinations are inadequate and a remand is necessary to afford the Veteran an adequate examination. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). The matters are REMANDED for the following actions: 1. The Veteran should be afforded a VA examination with an appropriate examiner to ascertain the current severity and manifestations of her bilateral shin splints. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner is requested to review all pertinent records associated with the claims file. The examiner should provide the range of motion in degrees, and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. [CONTINUED ON NEXT PAGE] A detailed explanation (rationale) for all opinions and conclusions provided is required and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Law Clerk