Citation Nr: 20021932 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-04 625 DATE: March 27, 2020 ORDER Entitlement to service connection for a low back disability, to include degenerative disc disease status post laminectomies, is granted. Entitlement to service connection for radiculopathy of the right lower extremity is granted. Entitlement to service connection for migraine headaches is granted. FINDINGS OF FACT 1. The Veteran’s current low back disability, to include degenerative disc disease status post laminectomies with right lower extremity radiculopathy, is causally related to his active service. 2. The Veteran’s current headache disability, migraine headaches, had its inception during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability, to include degenerative disc disease, status post laminectomies, have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1988 to May 1992, including service in the Southwest Asia theater of operations. He is the recipient of multiple awards and decorations, including a Combat Action Ribbon. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran’s notice of disagreement (NOD) was received by VA in June 2016. Following the issuance of a Statement of the Case in December 2016, the Veteran perfected a timely appeal via his submission of a VA Form 9 in January 2017. In January 2020, the Veteran testified at a Board videoconference before the undersigned Veterans Law Judge. Factual Background The Veteran’s service treatment records are negative for notations of a chronic low back disability, right lower extremity radiculopathy, or migraine headaches. His April 1992 service separation medical examination contains no pertinent complaints or abnormalities. In January 2016, the Veteran submitted an original application for VA compensation benefits, seeking service connection for several disabilities, including headaches and a low back disability with secondary right lower extremity radiculopathy. In support of his claim, the Veteran submitted a January 2016 letter from a private chiropractor who indicated that he had been treating the Veteran for chronic low back pain since 1995. Also submitted was an October 2015 Disability Benefits Questionnaire completed by a private physician. The physician noted the Veteran’s history of chronic low back pain since 1993 with decreased mobility and intermittent radicular pain. The diagnoses included lumbar disc disease and radiculopathy. Private clinical records received in support of the claim are dated from 2003 to 2019. In pertinent part, these records note treatment for low back pain since 2003 and for headaches since 2007. In December 2015, the Veteran sought treatment for chronic migraines. He reported that his headaches had been present since his return from Desert Storm. The Veteran was evaluated by a private neurologist in February 2017. At that time, he reported a history of headaches since 1992 when he got out of the military. The assessments included intractable migraine without aura, status migrainosus. The neurologist noted that the Veteran had a longstanding history of headaches which appeared to be vascular headaches of the migrainous type and that the headaches were worsening. In November 2019, the Veteran underwent L4-S1 laminectomies due to longstanding back and right lower extremity pain. VA clinical records received in support of the claim show that the Veteran sought to establish care with VA in January 2016. At that time, he reported a history of headaches dating to 1993 which were gradually getting more frequent and more severe. He also reported a history of low back pain with right radiculopathy and indicated that he was scheduled to have a spinal injection from his private provider the following week. At his January 2020 Board hearing, the Veteran testified that he began having headaches in Desert Storm. He indicated that his headaches continued after separation from service and he was diagnosed as having migraines in 1994 by a private clinician. He indicated that since 2016, he had been receiving medical care for migraines from VA and that his physician had told him that his headaches could be related to exposure to environmental hazards during the Gulf War. With respect to his low back, the Veteran testified that he started having back problems while on active duty but he didn’t seek treatment as he did not want to lose his combat MOS and get reassigned as a cook. He indicated that he continued to have problems after service separation and sought treatment from a private chiropractor in 1994 or 1995. He indicated that he had been under medical care for low back pain since that time. Following the hearing, the Veteran submitted a February 2020 letter from his private doctor who indicated that he had been treating the Veteran for the past two years. The doctor indicated that in discussing the nature of the Veteran’s military duties, “it is likely” that he had back problems with secondary leg pain, weakness, numbness, and tingling as a result of service. The doctor explained that repetitive overexertion could lead to injuries to the body of the type the Veteran had described. In addition, the doctor indicated that the Veteran had reported a history of migraines since Desert Storm. He explained that the chemicals and burning oil could cause persistent headaches. The doctor indicated that it was his opinion that the Veteran’s diagnoses could be in connection to his military service. Also submitted following the hearing was a February 2020 letter from the Veteran’s private chiropractor who indicated that it was his strong belief that the Veteran’s back disability with leg pain, weakness, numbness and tingling was the result of his military duties. He explained that the Veteran had described activities such as running with an 80 pound backpack, carrying weapons, jumping out of planes, etc. and that these activities can lead to injuries to the body. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: “(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 so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain specifically enumerated chronic diseases, including an organic disease of the nervous system such as migraine headaches, may also be established on a presumptive basis. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a low back disability, to include degenerative disc disease status post laminectomies, is granted. 2. Entitlement to service connection for radiculopathy of the right lower extremity granted. After reviewing the record on appeal, the Board concludes that service connection for a low back disability with secondary right lower extremity radiculopathy is warranted. In addressing the first element of the instant service connection claim, the evidence shows a current diagnosis of a low back disability with secondary right lower extremity radiculopathy. As reflected above, the Veteran has submitted private clinical evidence, including the report of an orthopedic surgeon, that he currently has a low back disability, to include degenerative disc disease, status post laminectomies with right lower extremity radiculopathy. The Board further finds that the second element has been satisfied. In that regard, the Board notes that the Veteran had combat service, as reflected by his awards and decorations indicative of combat service, including the Combat Action Ribbon. See Veteran’s DD Form 214. Under 38 U.S.C. § 1154(b), in the case of any veteran who engaged in combat with the enemy in active service, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. In this case, the Board finds that the Veteran’s reports of developing back pain while participating in activities such as running with an 80 pound backpack, carrying weapons, and jumping out of planes, during his Desert Storm deployment are consistent with the circumstances of his combat service as a recipient of the Combat Action Ribbon. Absent clear and convincing evidence to the contrary, the Veteran’s statements are sufficient to establish the presence of in-service low back injuries. With respect to the third element necessary to substantiate a claim of service connection, the nexus requirement, the Veteran has presented opinions from his private clinicians who indicate that it is their opinion that the Veteran’s current low back disability with secondary right lower extremity radiculopathy is causally related to his in-service activities, namely the repetitive type injuries he sustained in the course of his military duties. There is no competent medical evidence to the contrary. Thus, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current low back disability with secondary lower extremity radiculopathy is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for low back disability, to include degenerative disc disease, status post laminectomies with right lower extremity radiculopathy, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for migraine headaches is granted. After a review of the evidence, the Board finds that service connection is warranted for migraine headaches. In addressing the first element of the instant service connection claim, the evidence shows a current diagnosis of migraine headaches. As reflected above, the Veteran has submitted private clinical evidence, including the report of a neurologist, that confirms that he currently has migraine headaches. The Board further finds that the second element has been satisfied. With consideration of 38 U.S.C. § 1154(b), the Board finds that the Veteran’s reports of developing headaches during his Desert Storm deployment are consistent with the circumstances of his combat service as a recipient of the Combat Action Ribbon. Absent clear and convincing evidence to the contrary, the Veteran’s statements are sufficient to establish the presence of headaches in service. With respect to the third element, the nexus requirement, the provisions of section 1154(b) do not provide a substitute for evidence of a causal nexus between a combat service injury or disease and a current disability, or the continuation of symptoms subsequent to service. See Wade v. West, 11 Vet. App. 302, 305 (1999). However, under 38 C.F.R. § 3.303(b), when a chronic disease such as migraine headaches is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. In other words, [b]y treating all subsequent manifestations as service connected, [a] veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no nexus requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). In this case, the Veteran has reported chronic headaches since service and the record contains no evidence attributing his headaches to an intercurrent cause. Indeed, the Veteran has presented evidence from his private clinicians indicating that it is their opinion that his headaches are causally related to his active service. There is no competent medical opinion to the contrary. Based on the foregoing, the Board finds that the record is sufficient to establish service connection for migraine headaches. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.