Citation Nr: 20023068 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 19-27 669 DATE: April 2, 2020 ORDER Service connection for migraine headaches is granted. REMANDED The issue of service connection for obstructive sleep apnea is remanded. The issue of service connection for a lumbar spine disorder, to include low back pain, lumbosacral strain and intervertebral disc syndrome, to include as secondary to service-connected left knee disorder is remanded. The issue of service connection for hypothyroidism is remanded. FINDINGS OF FACT With resolution of the doubt in his favor, the Appellant’s migraine headaches were incurred in-service. CONCLUSION OF LAW The criteria to establish entitlement to service connection for migraine headaches have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant served on active duty in the U.S. Army National Guard from July 2009 to September 2010, to include service in Southwest Asia and is a “Veteran” under the law for this period. The Appellant also had active duty for training (ACDUTRA) for the U.S. Army National Guard from February 1992 to October 1992 and April 2018 to May 2018. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated January 2018, March 2018 and July 2018 of the Cleveland, Ohio Regional Office (RO). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Migraine headaches Migraine headaches, as an organic disease of the nervous system, is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, migraine headaches will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). The Appellant attributes his migraine headaches to having been exposed to burning trash and feces during his active service in Southwest Asia. The Appellant’s report of separation from the armed forces (DD Form 214) reflects that the Appellant served in Afghanistan and in a designated imminent danger pay area from August 2009 to July 2010. The Appellant’s duty specialty was Computer Detection Systems Repairer. In an August 2009 service treatment record (STR), during his service in Southwest Asia, the Appellant reported experiencing headaches. A review of systems revealed a frontal headache described as dull and aching. In an August 2010 post-deployment health assessment, the Appellant reported having been exposed to burning trash and feces during his deployment in Southwest Asia. The law provides that due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012). Based on the Appellant’s assertions and relevant evidence, the Appellant would have been exposed to burning trash and feces during his service in Southwest Asia. In a February 2012 VA treatment record, the Appellant denied experiencing migraine headaches; however, in an August 2017 VA treatment record, the Appellant reported experiencing migraine headaches. In December 2017, the Appellant was afforded a VA headaches examination. The Appellant was diagnosed with migraine headaches. The Appellant reported experiencing migraine headaches during his deployment in Southwest Asia and within one year after service separation. The Appellant is competent, as a lay person, to report experiencing headaches during his service in Southwest Asia and post-service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Pierce v. Principi, 18 Vet. App. 440 (2004). The Appellant is also credible in his reports of experiencing headaches. The VA examiner opined that the Appellant’s migraine headaches were not incurred in or caused by service due to an absence of medical records attributing the Appellant’s migraine headaches to an in-service injury and the Appellant having denied experiencing headaches on multiple occasions. The VA examiner’s medical opinion was inadequate, and therefore, of low probative value because the examiner did not consider the Appellant’s report of experiencing migraine headaches during his service in Southwest Asia. While the law does not require that an examiner review the claims file, for an opinion to be probative, the examiner must have an accurate and complete understanding of the Appellant’s medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board will grant the claim based on the benefit-of-the-doubt doctrine. Although the December 2017 VA examiner indicated that the Appellant has denied experiencing migraine headaches on multiple occasions, the evidence reflects otherwise, and the Appellant has reported experiencing migraine headaches during his service in Southwest Asia and within one year of service separation. The Board will resolve all reasonable doubt in favor of the Appellant. Therefore, service connection is warranted and the claim is granted. REASONS FOR REMAND The matters are remanded for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR Generally, to qualify for VA benefits, a claimant must be a veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (holding that status as a “veteran” is one of the five elements of a claim for service-connection benefits). One of the benefits administered by VA that is reserved specifically for veterans is disability compensation. Accordingly, to establish his entitlement to disability compensation benefits, the Appellant must first establish “veteran” status. Under 38 U.S.C. § 101(2) (2012) a “veteran” is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” The term “active military, naval, or air service” includes (1) active duty, (2) any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24) (2012); 38 C.F.R. § 3.6(a) (2019); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is defined, in part, as “full-time duty in the Armed Forces performed by reserves for training purposes.” 38 U.S.C. § 101(22) (2012); 38 C.F.R. § 3.6(c) (2019). Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA or INACDUTRA without more will not suffice. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a such a period, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. VA has not defined the term “injury” in regulations. However, the VA Office of General Counsel indicated that an injury is “harm resulting from some type of external trauma.” See VAOPGCPREC 1-2017; see also VAOPGC 6-86 (referring to injury as resulting from external trauma, i.e., application of external force or violence). A May 2018 statement of medical examination and duty status reflects that the Appellant underwent a low back injury that was incurred in the line of duty during a period of ACDUTRA, specifically, April 30, 2018 to May 4, 2018, for the U.S. Army National Guard. The section titled “Details of Accident” reflects that the Appellant twisted his low back after having picked up equipment off the floor. 2. The evidence reflects a current diagnosis of obstructive sleep apnea and the Veteran reported having been exposed to environmental hazards in Southwest Asia. However, no VA examination has been provided. The Veteran underwent a low back injury that was reported as incurred in the line of duty. The December 2017 VA medical opinion was inadequate because the examiner indicated that the Veteran’s lumbar spine disorder was not caused by service because service treatment records were silent for reports of low back pain; however, the evidence reflects otherwise. Alternatively, the Veteran has asserted that his lumbar spine disorder was caused by his service-connected left knee disorder. The February 2018 VA addendum opinion was inadequate because the VA examiner’s negative etiology opinion was supported by the rationale that it was mere speculation. The examiner did not consider any medical records or other relevant evidence. 2. Enter findings as to the Appellant’s duty status (active duty, active duty for training, inactive duty) at the time of the low back incident described above. 3. Schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of his obstructive sleep apnea. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Was the Veteran’s obstructive sleep apnea caused by his exposure to environmental hazards in Southwest Asia? Although the examiner must review the VBMS file, his or her attention is drawn to the following: • In an August 2010 service treatment record, the Veteran reported experiencing trouble sleeping due to his left knee pain. • In the August 2010 post-deployment health assessment, the Veteran answered in the negative to the question of whether he experienced trouble sleeping during deployment, and whether he currently experienced trouble sleeping. • In the August 2010 post-deployment health assessment, the Veteran indicated having been exposed to burning trash and feces during his deployment in Southwest Asia • In a January 2012 VA general medical examination, the Veteran reported experiencing no trouble sleeping. • In the September 2017 VA application for compensation, the Veteran attributed his obstructive sleep apnea to having been exposed to environmental hazards in Southwest Asia. • In VA treatment records dated August 2018 and March 2019, the Veteran underwent a sleep study resulting in a diagnosis of obstructive sleep apnea. 4. Return the file to the VA examiner who conducted the December 2017 VA thoracolumbar spine examination and the February 2018 VA addendum opinion concerning a thyroid condition. If the examiner is not available, have the file reviewed by a similarly qualified examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board’s questions without examination of the Veteran, another examination should be afforded to the Veteran. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Lumbar spine disorder: the VA examiner should provide the following opinions: Was the Veteran’s lumbar spine disorder caused by his service in Southwest Asia? Was the Veteran’s lumbar spine disorder caused by his service-connected left knee disorder? Although the examiner must review the VBMS file, his or her attention is drawn to the following: • A January 2017 VA treatment record reflects the Veteran’s diagnosis of low back pain. • In a May 2017 service treatment record, the Veteran was diagnosed with lumbar intervertebral disc degeneration. • A May 2017 VA treatment record reflects the Veteran’s report of experiencing low back pain. • In a September 2017 statement, the Veteran attributed low back pain to his service-connected left knee disorder. • In the December 2017 VA examination, the Veteran was diagnosed with a lumbosacral strain and intervertebral disc syndrome. • A May 2018 statement of medical examination and duty status reflects that the Veteran twisted his low back after having picked up equipment from the floor. • In an August 2018 physical evaluation board proceeding, the Veteran reported experiencing back pain during service in Southwest Asia and having twisted his back while on ACDUTRA. Hypothyroidism: the VA examiner should provide the following opinion: Was the Veteran’s hypothyroidism caused by his service in Southwest Asia? IF THE EXAMINER IS UNABLE TO PROVIDE AN OPINION WITHOUT RESORTING TO SPECULATION, THE EXAMINER IS ADVISED TO PROVIDE A WELL-REASONED EXPLANATION AS TO WHY AN ETIOLOGY OPINION COULD NOT BE PROVIDED WITHOUT RESORTING TO SPECULATION. Although the examiner must review the VBMS file, his or her attention is drawn to the following: • In the August 2010 post-deployment health assessment, the Veteran denied experiencing fatigue after sleeping and did not report experiencing thyroid trouble. • A January 2011 VA treatment record reflects the Veteran’s report of experiencing fatigue and weight gain. • In the September 2017 VA application for compensation, the Veteran attributed his hypothyroidism to having been exposed to environmental hazards in Southwest Asia. • In the December 2017 VA thyroid examination, the Veteran was diagnosed with hypothyroidism. • In the February 2018 VA Gulf War examination, the Veteran did not report experiencing exhaustion or any other symptoms pertaining to hypothyroidism. • In an October 2018 statement, the Veteran attributed his fatigue, weight gain and high cholesterol to hypothyroidism as a result of exposure to environmental hazards during service in Southwest Asia. (Continued on the next page)   5. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.