Citation Nr: 20006546 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-21 682 DATE: January 27, 2020 ORDER New and material evidence having been received; the claim of entitlement to service connection for right knee disability is reopened. Entitlement to service connection for right knee disability is granted. Entitlement to service connection for right shoulder disability is granted. Entitlement to service connection for migraine headaches is granted. FINDINGS OF FACT 1. The claim for service connection for right knee disability was denied in an unappealed March 2013 rating decision. 2. Evidence submitted since the March 2013 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection for right knee disability, and therefore creates a reasonable possibility of substantiating the claim. 3. The diagnosed right knee disability has been shown to be etiologically related to the Veteran’s active service. 4. The diagnosed right shoulder disability has been shown to be etiologically related to the Veteran’s active service. 5. After resolving reasonable doubt in the Veteran’s favor, the diagnosed headache condition has been shown to be etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The March 2013 rating decision that denied entitlement to service connection for right knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. 2. New and material evidence has been received since the March 2013 rating decision and the requirements to reopen the claim of entitlement to service connection for right knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for right knee disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for service connection for right shoulder disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for service connection for headache condition have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April to September 1999 and January 2003 to January 2005, with additional periods of ACDUTRA in the South Dakota Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In August 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 90 days for the Veteran to submit additional relevant evidence. The Board notes that with regard to the service connection claim for right shoulder disability, the AOJ characterized this issue on appeal as a new and material claim. The Board finds this is in error. In October 2012, the Veteran filed a service connection claim for right shoulder disability. That claim was denied in a January 2013 rating decision. The Veteran did not file a notice of disagreement (NOD) with regard to the January 2013 rating decision. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The Veteran filed to reopen her claim in September 2013. In support of her claim, the Veteran submitted private medical records, which are new and material evidence. In addition, the AOJ obtained a VA examination in January 2014. In a January 2014 rating decision, the AOJ considered the claim reopened, but continued the denial of that claim. Thereafter, in November 2014, the Veteran submitted updated STRs and private treatment records which had not been previously considered, including Medical Board, Line of Duty (LOD) determinations and medical profile findings relevant to her claim on appeal. These records are new and material. However, a March 2015 rating decision continued the denial of this claim on the basis that new and material evidence had not been submitted. As the Veteran submitted new and material evidence within one year of the January 2013 rating decision, that decision remained pending until VA adjudicated the claim. See 38 C.F.R. § 3.156(b). Thereafter, the claim was readjudicated in January 2014 rating decision, and the Veteran again submitted new and material evidence in support of the claim. Therefore, the January 2014 rating decision did not become final. Accordingly, new and material evidence is not required as the claim remains on appeal from the initial claim in October 2012. New and Material VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited 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, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. 1. Right Knee Disability In October 2012, the Veteran filed a service connection claim for right knee disability. That claim was denied in a March 2013 rating decision. The Veteran did not file a NOD and the March 2013 rating decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. In November 2014, over a year after the March 2013 rating decision, the Veteran submitted updated STRs which included Medical Board, LOD and medical profile findings. These STRs do not fit the criteria of 38 C.F.R. § 3.156(c). A March 2015 rating decision continued the denial of this claim on the basis that new and material evidence had not been submitted. The Veteran filed a timely NOD in March 2016 and subsequently perfected her appeal to the Board in May 2016. At the time of the March 2013 rating decision, the record contained a January 2013 VA knee examination. The examiner noted a diagnosis for medial meniscus tear, status post partial medial meniscectomy. The Veteran reported that her right knee disability occurred at the same time she injured her right foot in 2009 while running during training. At that time, she reported pain that radiated from her foot to her knee. The examiner opined that it was “less likely as not (50 percent or greater probability)” that the right knee disability was proximately due to or the result of the Veteran’s service-connected right foot condition. In support of this opinion, the examiner noted that even though the Veteran had originally reported shooting pain from her foot into her knee cap, medical literature did not document metatarsalgia and or hallux valgus to be a direct cause for a meniscal tear. Additionally, the examiner relied on an April 2009 foot examination that did not document any concerns alerting the examiner to conduct a knee examination, and that STRs did not specifically document a knee concern indicating that a knee examination be performed. Additionally, the examiner noted that pain had always been reported on the lateral side of the foot and leg which was on the same side as the medial meniscus tear and that orthopedics had never associated or reported that the meniscal tear was caused by the service-connected foot condition. Evidence added to the claims file following the March 2013 rating decision includes a November 2016 VA medical record noting knee problems which were found to be significant “wear and tear type of problems.” A December 2016 VA medical record noted a diagnosis for internal derangement of the right knee. In October 2019, the Veteran submitted a September 2019 letter from a VA certified nurse practitioner, nurse Hermanson. It was noted that the Veteran’s STRs were reviewed from 1999 to the present. Based on that evidence, nurse Hermanson opined that the Veteran’s right knee disability began during service and should be considered service connected. No rationale was provided. The Board finds the evidence added to the claims file since the March 2013 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for right knee disability. Accordingly, the petition to reopen that claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The term “active service” includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C. §§ 101(24); 38 C.F.R. § 3.6(a). National Guard and Reserve service generally includes periods of ACDUTRA and/or INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(c). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Right Knee Disability The Veteran seeks entitlement to service connection for right knee disability. Specifically, the Veteran asserts she injured her right knee during a period of ACDUTRA in April 2009 while running. The Board notes that the Veteran had an initial period of service in the National Guard from April 1999 and that she separated in April 2008, but reenlisted in October 2008. Initially, the Board notes that prior to April 2008, there are no reports, complaints or treatment for a right knee disability. Additionally, an October 2008 Prescreen of Medical History Report shows the Veteran denied any dislocated joints including her knee, or swollen or painful joints. In an April 2009 sworn statement, the Veteran reported that two-weeks prior, she ran two-miles around her base. That evening she noticed her right foot was sore and the next morning it hurt to walk. She additionally reported developing sharp shooting pain from her foot into her knee cap when walking or sitting and that she was treated at a hospital and was diagnosed with a sprain/strain, put into a boot for a week and told to ice her foot. A February 2011 STR shows the Veteran was placed on a medical profile for chronic knee pain. An April 2011 private orthopedic medical record noted treatment related to a LOD injury and further noted that over the past two-years the Veteran had pain in her foot which radiated into her knee. The right knee was also noted to reportedly give out. The Veteran reported wearing a knee sleeve. She denied any locking or catching in her right knee but did report intermittent swelling. The Veteran was assessed with a possible right medial meniscus tear. In May 2011, a STR noted complaints of right ankle, foot and knee pain over the past two-years. The Veteran reported having gone through physical therapy and that she saw and orthopedist who noted a possible nerve condition and was unsure why it was affecting the knee cap. The Veteran was assessed with knee pain. The clinician noted that the Veteran was only approved for an MRI of her ankle and not her knee as she did not have a current LOD related to her knee. In August 2011, an MRI study revealed a right medial meniscus tear. A February 2012 orthopedic record shows the Veteran was diagnosed with a right medial meniscus tear with a Baker’s cyst. Surgical intervention was discussed. A July 2012 orthopedic medical record shows the Veteran was four-months post-partial right knee medial meniscectomy. In September 2012, a chiropractic consultation record noted a right knee meniscus condition occurring in April 2009 due to running two-miles. The Veteran underwent a VA knee examination in January 2013. The examiner noted a diagnosis for medial meniscus tear and status post partial medial meniscectomy. The Veteran reported injuring her right knee while running during service in 2009 at the same time she injured her right foot. At that time, she reported pain radiated from her foot to her knee. The examiner opined that it was “less likely as not (50 percent or greater probability)” that the right knee disability was proximately due to or the result of the Veteran’s service-connected right foot condition. In support of this opinion, the examiner noted that even though the Veteran had originally reported shooting pain from her foot into her knee cap, medical literature did not document metatarsalgia and or hallux valgus to be a direct cause of a meniscal tear. Additionally, the examiner relied on an April 2009 foot examination that did not document any concerns alerting the examiner to conduct a knee examination, and that STRs did not specifically document a knee concern indicating that a knee examination be performed. Additionally, the examiner noted that pain had always been reported on the lateral side of the foot and leg which was not on the same side as the medial meniscus tear and that orthopedics had never associated or reported that the meniscal tear was caused by the service-connected foot condition. Thereafter, in January 2014, a LOD was issued regarding the Veteran’s right knee. The LOD determination found that the Veteran’s peroneal right knee tendonitis, minimal tibialis posterior tenosynovitis, small lateral popliteal cyst and small cleavage tear of the medial meniscus were injured during a period of ACTUTRA in April 2009 while running in preparation for a fitness test. The report specifically found that the listed right knee disability occurred “in line of duty.” At a November 2014 VA examination, the Veteran was diagnosed with right knee patellofemoral pain syndrome status post right knee arthroscopic meniscectomy. No etiological opinion was provided. A December 2016 MRI study revealed mild degenerative changes in the medial compartment, a popliteal Baker’s cyst, and two tiny para meniscal/ganglion cysts adjacent to the posterior horn of the medial meniscus. Lastly, in October 2019, the Veteran submitted a September 2019 letter from a VA certified nurse practitioner. It was noted that the Veteran’s service treatment records (STRs) were reviewed from 1999 to the present. After a review and recitation of the medical evidence, the nurse opined that the Veteran’s right knee disability began during service and should be considered service connected. No rationale was provided. After a review of the evidence of record, the Board finds that entitlement to service connection for right knee disability is warranted. In this regard, the Board finds that the evidence sufficiently shows that the Veteran injured her right knee during a period of ACDUTRA, that she has a current right knee disability, that that her current right knee disability is related to her in-service injury. In coming to this conclusion, the Board finds the January 2014 LOD determination the most probative evidence of record. Pursuant to 38 C.F.R. § 3.1(m) in line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result ot the veteran’s own willful misconduct. Additionally, the regulation provides that a service department finding that injury, disease or death occurred in line of duty will be binding on VA. The Board further notes that although the January 2013 VA examiner concluded that the right knee disability was not etiologically related to a period of ACDUTRA, this opinion was proffered prior to the January 2014 LOD determination. Accordingly, the Board finds that all three Shedden requirements have been met and entitlement to service connection for right knee disability is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Right Shoulder Disability The Veteran further seeks entitlement to service connection for right shoulder disability. Specifically, the Veteran asserts she dislocated or otherwise injured her right shoulder during basic training while performing lanes training which required her to move across bars with her hands. A review of the evidence of record shows that in February 1999, the Veteran denied any trick joints or impaired use of her arms on a National Guard Medical Prescreening Form. A March 1999 enlistment examination noted normal upper extremities. The Veteran denied a painful or trick shoulder, swollen or painful joints, or arthritis. STRs also show that in July 1999, the Veteran reported her right shoulder would “give out” while completing lanes training. A physical therapy record of the same date shows the Veteran reported right shoulder pain and popping for the past 2-3 weeks. Another July 1999 STR shows the Veteran was referred for civilian medical care for right shoulder pain and popping for the past 2-3 weeks. The Veteran was diagnosed with chronic right shoulder pain and right shoulder impingement. The Veteran denied any trauma and stated her symptoms began gradually. An August 1999 STR shows the Veteran reported complaints of right shoulder pain the past eight-weeks. The Veteran also reported a history of right shoulder pain prior to her enlistment five-months prior due to physical abuse resulting in direct trauma to her scapula. Current symptoms included popping. Additionally, an August 1999 STR from an Army Community Hospital shows the Veteran reported right shoulder pain for the past eight-weeks. She denied any trauma or strain event. A right shoulder radiological study revealed a “probably normal right shoulder” with clinical correlation as to a history of prior shoulder dislocation. In September 2012, a private treatment record shows the Veteran reported dislocating her right shoulder during boot camp. She also reported being told her right shoulder had healed wrong and that it had bothered her since that time. She was diagnosed with right shoulder pain. In addition, a September 2012 chiropractic consultation record noted that in 1999, the Veteran dislocated her right shoulder and that it had healed wrong. The chiropractor noted a current bruised right shoulder and that the Veteran shot an M16 the day prior. Pain was noted into the right neck, ear and back of the right eye. In October 2012, the Veteran was seen by an orthopedist to evaluate her right shoulder. The Veteran reported that she injured her shoulder during boot camp in 1999. Symptoms included shoulder pain in the trapezial area and into the scapular area. Push-ups were reportedly painful. The Veteran also reported being told she dislocated her shoulder and it did not heal correctly. An MRI study revealed mild AC joint hypertrophy and the Veteran was assessed with right shoulder pain. The orthopedist noted that it was unclear as to the exact cause of the right shoulder disability. In November 2012, the Veteran underwent right shoulder arthroscopic subacromial decompression and arthroscopic labral debridement. A post-operative diagnosis of right shoulder impingement, right labral fraying and undersurface fraying of the rotator cuff, and bursal thickening with bursal leader from CA ligament of rotator cuff were provided. The Veteran reported dislocating her right shoulder during boot camp. A VA examination was obtained in December 2012. The examiner noted a diagnosis for right shoulder impingement, status post arthroscopic subacromial decompression. The Veteran reported right shoulder symptoms that began in 2006 with intermittent anterior right shoulder pain radiating up her neck causing headaches, and worsening symptoms in 2012. She denied any injury. The Veteran also reported that in November 2012, she underwent surgery to scrape the labrum. The examiner noted that after further questioning, the Veteran reported a painful right shoulder when grabbing bars in boot camp in 1999 with symptoms of her arm giving out. During AIT, the Veteran reported shoulder pain and that she was told it was dislocated in 1999 and had healed wrong. The examiner opined that the right shoulder disability was “less likely than not (less than 50 percent probability)” etiologically related to service. In support of this opinion, the examiner noted that although the Veteran’s enlistment examination noted normal upper extremities, an August 1999 STR shows the Veteran reported direct right shoulder trauma prior to service in March 1999, and that she had denied any in-service injury when she was first treated the previous July. Additionally, the examiner noted that subsequent STRs, periodic examinations and annual reviews were negative for chronic shoulder pain or a right shoulder condition for the following 13-years. Thereafter, the examiner noted the Veteran did not report right shoulder pain until 2006 which she had linked to office ergonomics. In a January 2013 sworn statement, the Veteran reported that during basic training she was unable to complete lanes training due to her right shoulder giving out causing her to fall. She also reported pain and popping in her shoulder throughout boot camp. During AIT, she stated she was unable to deal with the pain and sought medical treatment in July 1999. At that time, she reported telling medical staff that she was unsure if her right shoulder pain was caused by an abusive ex-boyfriend or if something had happened during basic training. In addition, she reported being told that she had dislocated her shoulder and it had healed wrong. She reported right shoulder pain since that time. Thereafter, a LOD determination was issued in February 2013 which specifically found that right shoulder anterior soft tissue impingement and posterior soft tissue impingement was incurred in the LOD while completing lanes training in July 1999. Additionally, a December 2014 Medical Evaluation Board Proceedings form further noted that the Veteran’s right shoulder disability did not exist prior to service and was incurred while entitled to base pay. In August 2013, a private medical record shows the Veteran was diagnosed with right suprascapular neuritis and myofascial pain, infraspinatus muscle. She underwent a suprascapular nerve block and trigger point injection of the infraspinatus muscle. The Veteran underwent another VA shoulder examination in January 2014. The examiner noted a diagnosis for right shoulder impingement with status post arthroscopic subacromial decompression. The examiner opined that the right shoulder disability was “less likely than not incurred in or caused by an in-service injury during her period of active service.” In support of this opinion, the examiner noted that in July 1999, the Veteran was sent to physical therapy for pain and popping of her shoulder where she denied any injury or aggravation of a right shoulder condition. The examiner also noted an August 1999 STR showing the Veteran complained of right shoulder pain the past 8-weeks and that she further reported pain “prior to ETA” 5-months prior to enlistment caused by direct trauma to her scapula. In addition, the examiner noted that subsequent STRs including examinations were silent for right shoulder problems and that during her December 2012 VA examination the Veteran reported that her current right shoulder pain did not begin until inactive duty in 2006 due to office ergonomics. Accordingly, the examiner stated there was no medical evidence that the right shoulder complaints in 1999 were related to current right shoulder problems. At a November 2014 VA examination, the Veteran was diagnosed with chronic right shoulder myofascial syndrome status post arthroscopic subacromial decompression and labral debridement. No etiological opinion was provided. Lastly, a December 2014 Medical Evaluation Board Proceedings found that the Veteran’s chronic right shoulder myofascial syndrome status post arthroscopic subacromial decompression and labral debridement did not exist prior to service and was incurred during a period of ACDUTRA. After a review of the evidence of record, the Board finds that entitlement to service connection for right shoulder disability is warranted. Initially, the Board notes that the Veteran’s right shoulder disability has been denied on the basis that the condition was not found to have occurred during a period of ACDUTRA. See January 2013 Rating Decision; January 2014 VA Examination Report; and January 2014 Rating Decision. Additionally, a review of the March 2015 rating decision shows that although a LOD was issued showing that a right shoulder injury did occur during service, which the AOJ incorrectly noted as April 2009, the December 2012 VA examiner opined that the Veteran’s current right shoulder disability was not related to the in-service injury. However, the December 2012 VA examination report only noted that the Veteran’s right shoulder surgery successfully repaired her labral cuff pathology, and that her current diagnosis was right shoulder myofascial syndrome status post arthroscopic subacromial decompression and labral debridement. There was no finding that the current right shoulder diagnosis was unrelated to the prior right shoulder diagnosis, and, therefore, unrelated to the in-service injury. In any event, private medical records clearly show that the 2012 right shoulder surgery was related to the reported injury sustained in July 1999. See October and November 2012 Orthopedic Private Medical Records. Additionally, following her 2012 right shoulder surgery, an August 2013 private medical records shows current treatment for painful right shoulder reportedly related to the July 1999 injury. Therefore, the evidence of record clearly shows that the current right shoulder diagnosis is equally related to the reported injury sustained in July 1999. Turning to whether the Veteran’s current right shoulder disability is related to service, the Board finds the February 2013 LOD determination the most probative evidence of record as that finding is binding on VA. See 38 C.F.R. § 3.1(m). The LOD specifically found that the diagnosed right shoulder disability resulted from an injury sustained during a period of active duty service. The January 2014 VA examiner did not address this evidence which is binding. Accordingly, the Board finds the January 2014 VA examination report of reduced probative value. Accordingly, the Board finds that all three Shedden requirements have been met and entitlement to service connection for right shoulder disability is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Headache Condition The Veteran seeks entitlement to service connection for a headache condition. The Veteran asserts that she developed a headache condition during a period of ACDUTRA. Alternatively, the Veteran asserts that her headache condition pre-existed service, but was aggravated as a result of stress caused by her active duty service. The evidence of record includes a March 1999 enlistment examination showing the Veteran denied having frequent or severe headaches. Additionally, during her first period of active duty service between April and September 1999, there are no records concerning a headache condition. However, during her period of service between January 2003 and January 2005, a November 2004 post-deployment health assessment shows the Veteran reported developing headache symptoms during her deployment. The evidence of record also includes a June 2008 private medical record showing the Veteran reported difficulties with daily headaches dating back to her teens. The Veteran was diagnosed with recurrent headaches secondary to her bilateral interspace closure and nasal abnormalities. A July 2008 private medical record noted a history of complaints of chronic nasal airway obstruction, recurrent sinusitis and recurrent headaches with relatively little relief from medication. The recurrent headaches were found probably secondary to the following abnormalities: chronic nasal airway obstruction secondary to a deviated septum, hypertrophy of the inferior turbinates, and hyperpneumatization within the ethmoid complex. The Veteran underwent an operative intervention with a Fess-septoplasty and submucosal resection of the inferior turbinates to relieve her symptoms. Thereafter, an October 2008 Army National Guard Medical Prescreen of Medical History Report shows the Veteran denied any frequent or severe headaches. An April 2010 retention examination shows the Veteran reported frequent headaches which began approximately one-year prior. A September 2012 private chiropractic consultation record noted a history of migraines since grade school which seemed to be related to stress. Other complaints included a sinus condition. In a December 2012 Memorandum for the Record, Lieutenant Colonel B. noted that in June 2010 she was informed that the Veteran had been taken to a clinic for treatment of a severe migraine headache, and that due to the severity of the condition the Veteran was taken home where she suffered from the condition for several days. In addition, Lieutenant Colonel B. stated that the Veteran had several instances where she suffered from the same types of headaches following the June 2010 incident. A LOD determination was issued in February 2013 which found that the Veteran developed migraine headaches with nausea and vomiting during a period of annual training in June 2010. Additionally, in a February 2013 letter, the Veteran’s superior noted there had been many instances where the Veteran suffered from the same types of recurring migraines which often required her to leave work and go home. In addition, it was noted that to the best of her knowledge, the Veteran had not had these types of migraine episodes prior to the June 2010 instance. The Veteran underwent a VA headache examination in November 2014. The examiner diagnosed the Veteran with migraine headaches. The Veteran reported getting a bad headache in 2010 and was seen at a medical facility at Camp Rapid during her annual training. She also reported symptoms including nausea and right sided pain greater than left across the temple with shooting right retroorbital pain and photosensitive. Headaches reportedly occurred once weekly. No etiological opinion was provided. In June 2016, the National Guard Bureau issued a memorandum noting that, per the National Guard Bureau Surgeon, the Veteran’s recurrent migraine headaches existed prior to service and did not appear to have been caused and/or aggravated by military service. Lastly, in October 2019, the Veteran submitted a September 2019 letter from a VA certified nurse practitioner. It was noted that the Veteran’s service treatment records were reviewed from 1999 to the present. After a review and recitation of the medical evidence, the nurse opined that the Veteran’s migraine headaches began during service and should be considered service connected. No rationale was provided. After a review of the evidence of record, the Board finds that, in providing the Veteran with the benefit of the doubt, entitlement to service connection for migraine headaches is warranted. In this regard, the Board finds the February 2013 LOD and the December 2012 memorandum from Lieutenant Colonel B. the most probative evidence of record. Lieutenant Colonel B., the Veteran’s superior, specifically noted that she was unaware of prior instances where the Veteran experienced the types of migraine headaches that occurred in June 2010. Additionally, as noted above, pursuant to 38 C.F.R. § 3.1(m), LOD determinations are binding on VA. While a January 2016 National Guard Bureau memorandum found that the Veteran’s headache condition pre-existed service, notably, the memorandum does not provide any information as to when the Veteran’s recurrent migraines began. The Board notes that the record shows the Veteran suffered from different types of headaches; migraine variants and daily headaches symptomatic of a sinus condition. With regard to the sinus headaches, while private medical records from 2008 noted that daily headaches secondary to the Veteran’s sinus condition dated back to her teens, the Veteran underwent a surgical procedure to relieve those symptoms. Following that surgery, there are no medical records noting a similar sinus headache condition. With regard to migraine variant headaches, a September 2012 private chiropractic record shows the Veteran reported stress related migraine headaches since grade school. However, prior to the June 2010 development of severe migraines productive of nausea and vomiting, the medical evidence of record is silent as to treatment for these types of headaches. In any event, the March 1999 enlistment examination did not note a pre-existing headaches condition and the Veteran specifically denied having frequent or severe headaches at that time. Further, an October 2008 Army National Guard Medical Prescreen of Medical History Report also shows the Veteran denied any frequent or severe headaches. In general, a veteran is considered to have been in sound condition when examined and accepted for service, except as to defects, infirmities, or disorders noted on her entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (2004). The Board finds that the presumption of soundness has not been rebutted in this case as there is no medical evidence documenting treatment for migraine variant headaches prior to March 1999. Nor has it been shown that the headache conditions reported by the Veteran to have occurred prior to service clearly and unmistakable were not aggravated by service. Accordingly, in providing the Veteran with the benefit of the doubt, the Board finds that entitlement to service connection for migraine headaches has been established. The claim is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.