Citation Nr: 18110484 Decision Date: 06/12/18 Archive Date: 06/12/18 DOCKET NO. 12-20 889 DATE: June 12, 2018 ORDER Entitlement to service connection for right foot pes planus is denied. Entitlement to service connection for migraines to include as due to a broken nose or as secondary to service connected sinus condition is denied. FINDINGS OF FACT 1. A right foot pes planus disability preexisted the Veteran's entrance into service, and was not incurred in or aggravated by active service. 2. The Veteran’s migraine disorder is neither proximately due to nor aggravated beyond its natural progression by his service-connected sinus condition, and is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right foot pes planus have not been satisfied. 38 U.S.C. §§ 1111, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307 (2017). 2. The criteria for service connection for migraine disorder are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1982. The issue of service connection for a sinus condition is no longer in appellate status, having been granted in a March 2017 rating decision, which assigned a noncompensable rating effective June 18, 2008. Because this decision represents a full grant of the benefit sought on appeal, this issue is no longer before the Board. See Grantham v Brown 114 F 3d 1156 (Fed Cir 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning ‘downstream issues such as the compensation level assigned for the disability and the effective date). Service Connection Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). Service connection for a disability may also be established based on aggravation of disease or injury which preexisted service when there is an increase in disability during service unless the increase is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (a) (2016). Establishing service connection for a disability based on aggravation requires (1) evidence sufficient to show that a disease or injury preexisted service; (2) evidence showing an increase in disability during service sufficient to raise a presumption of aggravation of the disability; and (3) an absence of clear and unmistakable evidence to rebut the presumption of aggravation which may include evidence showing that the increase in severity was due to the natural progress of the disability. 38 C.F.R. § 3.306 (b) (2016). Concerning item (1), a disorder may be shown to have preexisted service if it is noted at entrance into service or where clear and unmistakable evidence rebuts a legal presumption of sound condition at entrance for disorders not noted at entrance. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (stating that the clear and unmistakable evidentiary standard is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable"). History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995) Service connection will be established on a secondary basis for current disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2016); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish secondary service connection based on causation, the evidence must show that the claimant has a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). To establish secondary service connection based on aggravation, the evidence must show an increase in severity of a disease or injury which 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 condition. 38 C.F.R. § 3.310 (b). Service connection for a nonservice-connected disease or injury based on aggravation will not be established absent medical evidence of the baseline level of severity of such disease or injury created before the onset of aggravation, or the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. Id. 1. Entitlement to service connection for right foot pes planus The Veteran asserts that his current right foot pes planus was aggravated by various incidents in service, including running on rocky terrain and boxing, and that he has continued to have pain since his separation from duty. See July 2012 Form 9; December 2016 VA C&P Examination Report; February 2018 Veteran Correspondence. The Veteran’s pes planus was specifically noted on the Veteran's December 1978 enlistment examination and on his May 1982 separation examination. See December 1978 Enlistment Examination; May 1982 Separation Examination. Because this right foot disorder was noted at the time of entry into service, the only means by which service connection may be established for this condition is by showing his service aggravated it, meaning chronically (i.e., permanently) worsened it beyond its natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. That is, the Veteran cannot bring a claim for service connection for that disability, but instead a claim for service-connected aggravation of that disability. And in this circumstance 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Only if a Veteran shows a chronic or permanent worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Here, however, there are no additional findings or complaints pertaining to the Veteran's right foot condition during service. The Veteran received treatment for his left foot on various occasions while in service however the Veteran’s service treatment records (STRs) do not contain any complaints or treatment for the Veteran’s right foot. The Veteran was afforded a VA examination in February 2012. The examiner found that the Veteran’s right foot was mild in nature and based on a December 2011 x-ray, unchanged from service. See February 2012 VA C&P Examination Report. A May 2016 VA C&P examination reflected that the Veteran experiences pain with prolonged standing, walking, climbing, and sitting. However, the examiner did not find any objective evidence to support a claim of in service aggravation. The examiner concluded that while the Veteran’s right foot pes planus clearly and unmistakably preexisted service it was not aggravated beyond its natural progression by any incident of service. The Veteran was provided an addendum medical opinion in February 2018. The examiner noted that the Veteran sought treatment for pain in his left foot on January 12, 1980; January 16, 1980; February 6, 1980; August 11, 1980; August 22, 1980 and February 20, 1981. There is no objective evidence to show that the Veteran complained of his right foot at any of these consultations or any other time during service. The examiner concluded that there was no objective or subjective evidence of aggravation of his right foot due to service. The examiner also determined that the Veteran’s right foot was less likely than not aggravated by his left foot. As a rationale the examiner stated that orthopaedic literature lacks sufficient orthopaedically-based, clinical evidence related to opposite side aggravation due to the same side relative area of the body. As discussed above, the Veteran bears the burden in this instance to demonstrate that his right foot pes planus condition, which existed prior to service, was aggravated by service. The medical evidence of record does not show any such aggravation or worsening, and the Veteran himself has not demonstrated the necessary knowledge or expertise to indicate he is capable of making a competent medical assessment of aggravation himself. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For these reasons, service connection for a right foot disability is not warranted. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for right foot pes planus is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for migraines to include as due to a broken nose or as secondary to service connected sinus condition The Veteran contends that his migraine disorder was caused either due to being hit in the head multiple times while a part of the boxing league in service or caused secondary to his service connected sinus condition. See February 2012 VA C&P Examination Report; November 2012 Board Hearing. The question for the Board is whether the Veteran’s migraine condition is proximately due to or the result of service, or was aggravated beyond its natural progress by his service-connected sinus condition. The Board concludes that, while the Veteran has a current diagnosis of migraines, the preponderance of the evidence is against finding that the Veteran’s migraine disorder is proximately due to or the result of service, or aggravated beyond its natural progression by his service-connected sinus condition. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The Veteran’s service treatment records (STRs) contain complaints of sinus related headaches on August 1979 and July 1981. The Veteran’s entrance exam in December 1978 and his separation examination in May 1982 are negative for complaints of headaches. The February 2012 VA examiner found that the Veteran’s migraines caused throbbing pain and he had symptoms of nausea, sensitivity to light and sound. The Veteran’s headaches typically started on the left side of his head and occasionally migrated to the right side. The examiner also found that the Veteran had headaches related to his sinus condition. The examiner concluded that the Veteran’s headaches were less likely than not caused by injuries during his boxing matches. As a rationale, the examiner mentions that the Veteran’s STRs do not mention any complaints or treatments for headaches outside of a relation to his sinus condition. See February 2012 VA C&P Examination Report. The Veteran was afforded another VA C&P examination in December 2016. The Veteran reported experiencing symptoms of diffuse headaches in 1979 while boxing in the military. The Veteran also stated that his headaches occur daily and last an hour at a time with medication. The examiner opined that the Veteran’s migraines were not caused by his experience boxing. The examiner noted that there was no objective evidence in the case file to support the idea that a specific inservice illness caused the headaches. See December 2016 VA C&P Examination Report. An addendum medical opinion was provided in February 2018. The examiner reaffirmed that the Veteran had an independent diagnosis of migraines. The examiner found that while the Veteran had a sinus condition with accompanying headaches on August 27, 1979 and July 29, 1981 headaches did not always occur in conjunction his sinus symptoms. See August 1979 STR (reporting headaches with nasal sinus congestion); July 1981 STR (reporting sinus trouble for a week with headaches); August 1981 STR (reporting that the complaint of an upper respiratory infection for a month but no mention of headaches); June 2017 Nursing Urgent Care Note (reporting the Veteran has a sinus infection without headaches). In addition, the examiner noted that while the Veteran reported chronic sinusitis on his separation examination in May 1982, he did not complain of headaches. The examiner opined that the incidents of headaches accompanying the Veteran’s sinus condition in 1979 and 1981 were acute self-limiting incidents of secondary symptomatology of the Veteran’s allergic rhinitis/sinusitis condition and not a primary condition. Accordingly, the examiner found that it was not at least as likely as not that the Veteran’s migraine disorder was caused or aggravated by his sinus condition. See February 2018 Medical Opinion. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s migraine disorder is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While the Veteran continues to allege that his headaches were caused by injuries sustained while boxing, the Board finds that the Veteran is not competent to provide a nexus opinion in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions). The issue as to the etiology of the Veteran’s migraines is a medically complex determination that is not within the province of lay observation but rather requires an understanding of the nature of the conditions involved. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). Thus, given the medically complex nature of this determination, the Veteran’s statements alone are not competent evidence, as he is a lay person in the field of medicine and thus does not have the expertise to render an informed opinion on this issue. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Thus, the probative value of his statements must be discounted on this basis. See id. at 470-71 (in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). Further, while the Veteran submitted treaties extrapolating on the damage caused to the brain as a result of boxing and traumatic brain injuries (TBI), the Board affords these treaties low probative value as they do not directly relate to the Veteran’s medical situation. Moreover, there is no evidence of record establishing that the Veteran was diagnosed with a TBI. Consequently, these treaties lack probative value on this ground as well. See id.; Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). By contrast, the VA opinions of record represent the informed, objective conclusion of medical professionals with a high level of medical expertise, and are supported by a specific explanation based on the Veteran's medical history and application of medical principles. Accordingly, the VA medical opinions carry more weight than the Veteran’s statements. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); Madden, 125 F.3d at 1481. Accordingly, the preponderance of the evidence weighs against a relationship to service. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a migraine disorder is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel