Citation Nr: 20004372 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 14-41 368A DATE: January 17, 2020 ORDER Entitlement to service connection for a left upper extremity disability as secondary to service-connected migraine headaches is granted. FINDING OF FACT The preponderance of the evidence indicates that the Veteran’s current left upper extremity disability was as least as likely as not caused by his service-connected migraine headaches. CONCLUSION OF LAW The criteria for entitlement to service connection for a left upper extremity disability as secondary to service-connected migraine headaches have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the U.S. Air Force from December 1995 to December 1996. This matter comes to the Board of Veterans Appeals (Board) on appeal from a May 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Service Connection 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. § 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (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 or aggravated during service - the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Entitlement to service connection for a left hand and left arm disability as secondary to service-connected migraine headaches The Veteran asserts that his current left upper extremity disability is secondarily related to his active service. Specifically, he maintains that this disability was caused by or otherwise related to his already service-connected encephalopathy. Here, all three elements of secondary service connection have been met. A review of the case file reveals that the Veteran was diagnosed with neuralgia of the left upper extremity in January 2010. See January 2010 Dr. T.J.D. Progress Note. Thus, the first required element of secondary service connection, a current disability, is fulfilled. With respect to secondary service connection, as noted previously, the record must reflect 1) evidence of a current disability, 2) evidence of a service-connected disability, and 3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. In a March 2012 rating decision, Veteran was granted entitlement to service connection for encephalopathy with cognitive decline and migraines, effective June 30, 2010, which the Veteran asserts caused his current left upper extremity disability. Accordingly, the second required element for secondary service connection, evidence of a service-connected disability, has also been satisfied. Regarding the third element of secondary service connection, medical nexus, in conjunction with his claim, the Veteran underwent a VA peripheral nerves examination in January 2012, and the examiner subsequently issued a negative opinion regarding the Veteran’s left upper extremity disability and his service-connected encephalopathy. See, e.g., January 2012 VA Peripheral Nerves Disability Benefits Questionnaire (DBQ); March 2012 QTC Addendum Request. Specifically, the examiner opined that that the Veteran’s left upper extremity neurological condition was aggravated by his active service because they began fourteen years after his military service. The Board found this opinion inadequate for rating purposes. The examiner’s negative conclusion was solely based on the amount of time between the Veteran’s separation and the onset of his left upper extremity disability, nor did it address the issue of whether the disability was secondary to his already service-connected encephalopathy. An adequate medical opinion with regard to etiology should consist of a thorough review of the claims file and discussion of the relevant evidence (including the disability in question), a consideration of the lay contentions of the Veteran, and clear conclusions with a supporting rationale. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the Board assigns no probative value to the March 2012 VA opinion. Subsequently, in June 2019, the Board requested a VA advisory expert medical opinion pursuant to VHA Directive 1602 regarding the questions of whether or not the Veteran’s left upper extremity disability was related to or a manifestation of the Veteran’s service-connected encephalopathy, among other questions. See June 2019 BVA Letter. In October 2019, a VA specialist generated an opinion in response to the Board’s request. See October 2019 VA Neurology Medical Advisory Opinion. The specialist indicated that he had reviewed the evidence of record and opined that while the Veteran’s left upper extremity disability was not at least as likely as not related to his service-connected encephalopathy, it was at least as likely as not related to his service-connected migraines and associated syncope. In support of this conclusion, the specialist noted that while the Veteran’s recent neurological examinations did not reveal current evidence of persistent encephalopathy, his service treatment records reflected evidence of recurrent complicated migraine attacks and associated syncope during his active service. The specialist further elaborated that there was “ample supporting evidence in literature where fixed neurological deficits have occasionally occurred after suffering from recurrent complicated migraine/migraine with neurological symptoms and/or syncope.” The findings of the VA specialist were based on a thorough review of the evidence and cited to and addressed the medical as well as the relevant medical literature. The May 2019 opinion contains an internal logic consistent with the known facts, as well as with the other evidence of record. The Board finds this opinion to be highly probative. Accordingly, in light of the evidence of a current left upper extremity disability, evidence of service-connected migraines, and probative evidence of a medical nexus between the two, the Board finds that the weight of evidence reflects that the Veteran’s current left upper extremity disability was as least as likely as not caused by his service-connected migraines; thus, service connection for a left upper extremity disability is warranted on a secondary basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Raj, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.