Citation Nr: 20022083 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-15 881 DATE: March 30, 2020 ORDER Entitlement to service connection for an undiagnosed headache condition is granted. Entitlement to service connection for right knee patellofemoral syndrome is granted. REMANDED Entitlement to service connection for an upper/mid back condition is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his headaches manifested in service after his tour in the Southwest Asia theater of operations, cannot be attributed to any known clinical diagnosis after testing, and existed at least intermittently over a 6-month period. 2. Resolving reasonable doubt in the Veteran’s favor, his right knee patellofemoral syndrome was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for an undiagnosed headache condition have been met. 38 U.S.C. §§ 1110, 1131, 1117, 1118 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). 2. The criteria for service connection for right knee patellofemoral syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2009 to April 2013. He appeals an April 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for headaches, right knee patellofemoral syndrome, and an upper/mid back condition. After certification to the Board, relevant VA records pertinent to the Veteran’s claim were added to his file. Regularly, the Board must obtain a waiver from the Veteran to allow the Board to consider additional evidence received after the appeal has been certified. See 38 C.F.R. § 20.1304(c). However, the Board is granting the Veteran’s claims for service connection for headaches and right knee patellofemoral syndrome in full and remanding his claim for service connection for an upper/mid back condition to the AOJ for further development. As such, a waiver by the Veteran is unnecessary. A Veteran is entitled to VA disability compensation if there is a current disability resulting from personal injury or disease incurred in, or aggravated by, active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. See 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Signs or symptoms that may be a manifestation of an undiagnosed illness include headaches, joint pain, and muscle pain signs or symptoms. 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. 38 C.F.R. § 3.317(a)(4). Headaches The Veteran is a Persian Gulf veteran who served in the Southwest Asia theater of operations from April 2010 to April 2011. See DD Form 214. The record contains evidence of headaches without discernable origin or diagnosis. See April 2015 VA examination report. Therefore, if the record establishes that the Veteran’s headaches (1) manifested during active duty, (2) cannot be attributed to any known clinical diagnosis after testing, and (3) existed for 6 months or more, he is entitled to service connection for those symptoms. Here, the Veteran contends his current headaches started and have continued since service. See April 2015 VA examination report. Because headaches are a condition capable of lay observation, the Veteran is competent to testify to his symptoms, history, and the actual existence of the condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Service treatment records reflect the Veteran complained of and was treated for “bad headaches” in service after his 12-month tour in Iraq. See August 2011 post-deployment health re-assessment. He also stated that he believed his headaches were related to his deployment. Id. See August 2012 service treatment records. As such, the Board finds the Veteran’s headaches manifested during active duty and have existed for 6 months or more. In April 2015, the Veteran was provided an examination to assess the nature and etiology of his headaches. There, the Veteran stated his headaches cause discomfort and last anywhere from “30 minutes to 1 day.” See April 2015 VA examination report. The VA examiner concluded the Veteran’s symptoms did “not meet the diagnostic criteria for migraine, tension or cluster headaches as defined by the International Headache Society (ICHD-3) in 2013.” See April 2015 VA examination repot. Accordingly, the Board finds his current headaches cannot be attributed to any known clinical diagnosis after testing. As a result, the Board finds that the Veteran’s headaches became manifest during active duty in the Southwest Asia theater of operations and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Thus, the Veteran’s headaches constitute an undiagnosed illness and a qualifying chronic disability under 38 C.F.R. § 3.317. Accordingly, the Board grants entitlement to service connection for headaches. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Right knee patellofemoral syndrome The Veteran has a current diagnosis of right knee patellofemoral syndrome. See April 2015 VA examination report. The Veteran contends his right knee patellofemoral syndrome “bothered [him] once before service [and] never again until toting around gear and full kit doing ruck marches and bouncing around as a gunner in full kit.” See July 2015 Veteran notice of disagreement (NOD). Although the Veteran’s medical history prior to service included a right knee injury in April 1991 and the Veteran mentioned this injury at his enlistment examination, right knee x-rays prior to service reflected a “normal” right knee. See November 2003 service treatment records. Importantly, the physician at the Veteran’s entrance examination specifically indicated the Veteran’s right knee was normal upon entry into service. See December 2008 entrance examination report. As VA has not shown by clear and unmistakable evidence that any right knee condition existed prior to service and was not clearly and unmistakably aggravated during service, the presumption of soundness attaches to the Veteran. See Wagner v. Principi, 370 F.3d 1089, 1092 (2004); 38 C.F.R. § 3.304(b). In March 2009, during boot camp, the Veteran repeatedly received treatment for three weeks after “three soldiers” “stepped on his right knee.” See March 2009 service treatment records. Shortly thereafter, the Veteran sought treatment after his “right knee gave out again” and he fell. Id. Also, his service treatment records reflect the Veteran sought treatment for his right knee in July 2009 after he felt a “sharp pain…from running” and was subsequently diagnosed with “right knee strain.” See July 2009 service treatment records. Importantly, the Veteran’s service treatment records list right “knee joint pain” and “patellofemoral syndrome” as chronic in-service problems. See, e.g., August 2012 service treatment records. The Board finds the evidence clearly reflects the Veteran suffered in-service injuries to his right knee and was diagnosed with right knee patellofemoral syndrome in-service. As the Veteran was diagnosed in-service with chronic right knee patellofemoral syndrome and currently has a diagnosis of right knee patellofemoral syndrome, the Board finds that all the evidence of record establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Accordingly, the Board grants service connection for right knee patellofemoral syndrome. REASONS FOR REMAND The Veteran contends his current upper/mid back condition, to include “back pain, started in the military.” See July 2015 Veteran NOD. He stated his “unit sick call never sent [him] for x-rays” and he “can only sit [and] stand for so long before it is unbearable pain” and his “legs go numb if sitting a certain way.” Id. As stated above, the Veteran is competent to report the history and symptoms of his upper/mid back condition, to include pain in service that has continued throughout the appeal period. See Layno, 6 Vet. App. at 469. There are also recent VA treatment records suggesting the Veteran has cervical degenerative disc disease with muscle spasms and mild levoscoliosis of the thoracic spine. See February 2017 VA treatment records. However, the Veteran has not yet been afforded a VA examination. VA must provide a VA medical examination when there is evidence of (1) a current disability, (2) an event, injury, or disease occurred in service, and (3) an indication that the disability may be associated with the Veteran’s service or with another service-connected disability, and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran’s lay statements and VA treatment records fulfill the McLendon elements. While the Veteran is not competent to medically diagnose himself or opine on the etiology of his upper/mid back condition, satisfying the third McLendon element requires only that the evidence ‘indicates’ that there ‘may’ be a nexus between the two and is a low threshold. See McLendon, 20 Vet. App. at 83. Thus, as the Veteran has not yet received a VA examination, a remand is required. Alternatively, the Board notes the Veteran served in Iraq from April 2010 to April 2011. See Veteran enlisted record brief. The record reflects the Veteran reported “muscle aches” on his post-deployment health assessment after his tour in Iraq and he states his current back pain started in service. See April 2011 service treatment records. Muscle and joint pain are qualifying signs and symptoms of undiagnosed illness and MUCMI under 38 C.F.R. § 3.317(b). As the AOJ did not address this presumptive theory of entitlement, a remand is required to determine whether his upper/mid back condition constitutes a MUCMI or undiagnosed illness. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Thereafter, schedule the Veteran for an examination to determine the nature, etiology, and pathophysiology of any upper/mid back condition, to include degenerative disc disease and levoscoliosis. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this review took place. After a thorough review of the record and examination of the Veteran, the VA examiner should provide a diagnosis for any upper/mid back symptoms demonstrated by the Veteran over the course of the appeal period. Then, the examiner should answer the following: (a) If no diagnosis is made, the examiner must opine whether the Veteran’s upper/mid back symptoms represent manifestations of an undiagnosed illness. (b) If a clinical diagnosis for an upper/mid back condition is made, the examiner must opine: Whether is it at least as likely as not (a 50 percent probability or more) that the Veteran’s upper/mid back condition was incurred in or is otherwise related to his time in service? AND Is the etiology OR pathophysiology of the Veteran’s upper/mid back condition not understood AT ALL as to this particular Veteran? In rendering these opinions, the examiner should consider the Veteran competent to report his symptoms and history and the examiner is to discuss the Veteran’s assertions for his upper/mid back condition. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so should also be provided. The examiner should not mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner is also reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide a requested opinion without resorting to mere speculation, it must be stated, and the examiner must provide the reasons why an opinion would require speculation. As such, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   3. Thereafter, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.