Citation Nr: 20051740 Decision Date: 08/04/20 Archive Date: 08/04/20 DOCKET NO. 18-17 921 DATE: August 4, 2020 ORDER New and material evidence having been submitted, reopening of the claim of entitlement to service connection for trigeminal neuralgia is granted. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for a psychiatric disability is granted. Entitlement to an effective date earlier than June 30, 2016, for the grant of service connection for migraines is denied. Entitlement to an initial rating of 10 percent, but not higher, for migraines for the entire appeal period is granted. REMANDED Entitlement to service connection for trigeminal neuralgia, to include as secondary to migraines or a psychiatric disability, is remanded. FINDINGS OF FACT 1. In an unappealed December 2015 rating decision, the Veteran was denied entitlement to service connection for trigeminal neuralgia and a psychiatric disability, including PTSD. 2. The evidence received since the December 2015 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claims of entitlement to service connection for trigeminal neuralgia and a psychiatric disability. 3. The Veteran’s psychiatric disability is etiologically related to her active service. 4. The Veteran submitted a formal intent to file a claim on June 30, 2016, which preserved the effective date of her December 2016 service connection claim; there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for migraines received by VA prior to June 30, 2016. 5. For the entire period on appeal, the Veteran’s migraines were manifested by characteristic prostrating attacks occurring on an average of one in two months over the last several months. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of entitlement to service connection for trigeminal neuralgia is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 2. New and material evidence has been received and the claim of entitlement to service connection for a psychiatric disability, to include PTSD, is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for a psychiatric disability have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 4. The criteria for an effective date earlier than June 30, 2016, for the grant of service connection for migraines have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2019). 5. The criteria for an initial rating of 10 percent, but not higher, for migraines for the entire appeal period have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the Army National Guard from February to July 2008 and August to November 2009; and active military service from January 2010 to December 2010 and July 2011 to May 2013, to include service in Southwest Asia. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Claim to Reopen – Trigeminal Neuralgia In a December 2015 rating decision, the RO denied entitlement to service connection for trigeminal neuralgia based on findings that the disability was not related to service and was not manifest to a compensable degree within a year of the Veteran’s separation from service. The Veteran did not appeal that decision. The evidence that has been received since the December 2015 rating decision includes post-service medical records, a May 2020 appellate brief, and the Veteran’s lay statements. Specifically, the Veteran indicated that her trigeminal neuralgia is secondarily related to stress and a nervous disorder that began during her deployment to Iraq. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claim of entitlement to service connection for trigeminal neuralgia. Therefore, reopening of the claim is warranted. Claim to Reopen – Psychiatric Disability In a December 2015 rating decision, the RO denied entitlement to service connection for a psychiatric disability, to include PTSD, based on a finding that the disability was not related to active service. The Veteran did not appeal that decision. The evidence that has been received since the December 2015 rating decision includes a January 2017 VA examination, post-service medical records, a May 2020 appellate brief, and the Veteran’s lay statements. Specifically, the Veteran reported that her psychiatric disability began during her active service and has continued since that time. The Board finds that the additional evidence is new and material as it has not been previously considered by VA and raises a reasonable possibility of substantiating the claim of entitlement to service connection for psychiatric disability. Therefore, reopening of the claim is warranted. Service Connection – Psychiatric Disability The Veteran has contended that her psychiatric disability, to include PTSD, is related to her active service. Specifically, she reported that she was sexually harassed throughout her active service. Further, she described a constant fear of becoming an indirect target of gunshots while serving in Iraq. Service records confirm that the Veteran served in Southwest Asia. On her October 2010 and November 2010 post-deployment health assessments, the Veteran endorsed feeling down, depressed, or hopeless; lack of interest in doing things; problems sleeping or feeling tired; trouble concentrating or becoming easily distracted; forgetfulness or trouble remembering; problems making decisions; and increased irritability. Further, she indicated that her emotional problems made it somewhat difficult to do her work, take care of things at home, or get along with other people. Additionally, the Veteran was referred for depression and PTSD symptoms in March 2011. Nonetheless, the Veteran has reported that she first experienced symptoms associated with a psychiatric disability while she was in active service and that those symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds her credible in that respect. A review of post-service VA medical center records revealed that the Veteran was diagnosed with several psychiatric disabilities within a year following her separation from service, to include PTSD, adjustment disorder with mixed anxiety and depression, and mood disorder. In October 2019, the Veteran was afforded a VA psychiatric examination. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD and was unable to render any additional diagnoses for a psychiatric disability. He stated that there was no conclusive evidence to support the Veteran’s claim of PTSD secondary to military sexual trauma and/or combat exposure. The Board finds the October 2019 VA psychiatric examination inadequate for adjudication purposes. In this regard, the examiner did not address the STR notations of symptoms associated with a psychiatric disability. Further, there is no evidence that the examiner considered the remaining post-service psychiatric diagnoses of record. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. Moreover, the Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify symptoms related to a psychiatric disability, and report on the chronicity of symptomatology since active service. Moreover, her statements have been found credible. In sum, the Veteran has competently and credibly reported that that she first experienced symptoms associated with a psychiatric disability while in active service and that she has continued to experience symptoms since that time, and those statements have been found credible by the Board. Furthermore, she has a current diagnosis of a psychiatric disability. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a psychiatric disability is warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date – Service Connection for Migraines As a general rule, the effective date of service connection in an original claim is the date of claim or the date entitlement arose, whichever is later. If such claim is received within the first year following discharge, an effective date of the day following separation may be assigned. 38 C.F.R. § 3.400 (o)(2) (2019). The record shows that the filed a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension that was received by VA on June 30, 2016. The Veteran then filed a formal claim of entitlement to service connection for migraines that was received by VA on December 22, 2016. A review of the record does not show that the Veteran filed a formal claim or written intent to file a claim of entitlement to service connection for migraines prior to the receipt of the June 30, 2016, Intent to File. Accordingly, while there is an indication from the record that the Veteran had a diagnosis of migraine headaches prior to the June 30, 2016, Intent to File, the date of the Intent to File is the later of the date entitlement arose and the date of claim. Therefore, the June 30, 2016, date that the Veteran’s Intent to File a claim was received is the appropriate effective date for the grant of service connection for migraines. Therefore, the claim of entitlement to an effective date earlier than June 30, 2016, for the grant of service connection for migraines must be denied as it is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). Increased Rating – Migraines The Veteran has asserted that her migraines are worse than that accounted for by the currently assigned initial rating. Service treatment records documented that the Veteran complained of a history of headaches. In September 2010, she described frequent headaches up to two times per week with associated nausea, phonophobia, and photophobia that could last for days. Additionally, the Veteran was admitted to a private hospital for migraine headaches with associated photophobia, nausea, and vomiting in May 2013. A review of post-service VA treatment records showed that the Veteran has received additional treatment for her migraines. In August 2013, she complained that her migraines had worsened since she returned to work full-time and with stress. A few times she left work and/or reported to the emergency room due to her migraines. The Veteran was afforded a VA examination in January 2017. She described constant, pulsating or throbbing head pain on the right side of her head. Her head pain lasted less than one to two days. Non-headache symptoms associated with her head pain included nausea and sensitivity to light and sound. Her treatment plan included taking medication. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain with less frequent attacks. However, the examiner noted that the Veteran’s prostrating headaches were not productive of severe economic inadaptability. The examiner noted that the Veteran’s headaches did not impact her ability to work. The Board finds that an initial rating of 10 percent, but not higher, is warranted for the entire period on appeal. In this regard, the medical and lay evidence of record support that the Veteran had characteristic prostrating headaches. However, there is no indication from the record that the Veteran experiences characteristic prostrating attacks on average once a month. The Board acknowledges that the Veteran has had to leave work on occasion and seek treatment for her headaches at the emergency room. However, there is no indication from the record that such episodes happen regularly. Accordingly, the Board finds that an initial rating of 10 percent, but not higher, for migraines is warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS FOR REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. The Veteran has asserted her trigeminal neuralgia is related to her active service, or alternatively, secondary to a psychiatric disability, granted herein. Further, there is medical evidence of record that the Veteran’s symptoms may be associated with her migraine headaches. As such, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of any currently present trigeminal neuralgia. Finally, current treatment records should be identified and obtained before a decision is made with regard to the claim. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present trigeminal neuralgia. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present trigeminal neuralgia is etiologically related to the Veteran’s active service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present trigeminal neuralgia was caused or aggravated (chronically worsened) by the Veteran’s service-connected psychiatric disability and/or migraines. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report, and all medical opinions provided, comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.