Citation Nr: 21000330 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-16 599 DATE: January 5, 2021 REMANDED Entitlement to service connection for migraines is remanded. Entitlement to service connection for bilateral shin splints is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1996 until March 2002. In May 2019, the Court of Appeals for Veterans Claims (Court), granted a Joint Motion for Partial Remand (JMPR)that vacated and remanded the September 2018 Board decision insofar that it denied entitlement to service connection for migraines and bilateral shin splints. In October 2019, the Board remanded the matter to the agency of original jurisdiction (AOJ) to provide the Veteran with a VA examination to determine the nature and etiology of her claimed migraine and bilateral shin splints conditions. Unfortunately, for the reasons detailed below, there has not been substantial compliance with the Board’s previous remand instructions and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for migraines is remanded. The Veteran contends that she has migraines that are related to service. Subsequent to the Board’s October 2019 remand, the AOJ afforded the Veteran a medical examination and obtained an opinion regarding the nature and etiology of the Veteran’s migraine condition. Unfortunately, the obtained medical opinion is inadequate because the examiner failed to document and address the Veteran’s reports of continued headache and/or migraine symptoms since service although specifically instructed to do so. Additionally, the examiner impermissibly seemed to base the provided negative nexus opinion solely on a lack of record of diagnosis or treatment during service and the time between service and diagnosis. Additionally, the Veteran filed a VA Form 9 related to her migraine claim in August 2020. Although the filing of the VA Form 9 was not required, the Veteran asserted on the form that her migraines are secondary to military sexual trauma. The Veteran is service-connected for posttraumatic stress disorder (PTSD) related to the military sexual trauma she endured in service. Accordingly, the Board finds that a secondary service connection theory of entitlement has been raised by the Veteran. No medical professional has opined as to whether the Veteran’s PTSD caused or aggravated her migraines. Accordingly, on remand, a new medical opinion to determine the likely etiology of the Veteran’s migraine condition that addresses both direct and secondary service connection and considers the Veteran’s reported continuity of symptomatology since service must be obtained. 2. Entitlement to service connection for bilateral shin splints is remanded. The Veteran contends that she has bilateral shin splints that are related to her service. Subsequent to the Board’s October 2019 remand, the AOJ afforded the Veteran a medical examination and obtained an opinion regarding the nature and etiology of the Veteran’s bilateral shin splints. Unfortunately, the medical opinion obtained is inadequate, because the examiner stated, “There is no evidence to support that the condition has materially impacted the performance of the SM duty.” However, the Veteran has stated that her leg condition limits her ability to apply for and work at certain jobs. Additionally, the examiner failed to address the Veteran’s reported symptomatology, including pain, in finding there is no current medical diagnosis associated with the claimed condition. On remand, a new examination that considers the Veteran’s reports of leg pain and limitation in employment due to such pain must be obtained. Additionally, updated treatment records should be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private medical records relevant to her claim. After obtaining any necessary authorization from the Veteran, all outstanding records, including outstanding VA treatment records, should be obtained. 2. After completion of the above, schedule the Veteran for a VA examination (or telehealth interview, etc., if appropriate) with an appropriate clinician to determine the nature and etiology of the Veteran’s migraine disability. All pertinent records should be made available to the examiner, including this remand. After the completion of the examination and any additional testing that may be appropriate, the examiner must answer the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s migraine condition had an onset during service or is otherwise related to active service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s migraine condition is proximately due to her service-connected PTSD? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s migraine condition has been aggravated (any increase in disability) by her service-connected PTSD? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation In providing the requested opinions, the examiner must specifically document and address the Veteran’s reports of continued headache/migraine symptoms since service. The examiner should discuss how this evidence relates to the Veteran’s claim. All provided opinions must be supported by complete rationale. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding and must reflect consideration of the lay assertions of pertinent symptomatology. If the examiner determines an opinion cannot be made without resort to speculation, the examiner should state why. 3. After completion of the above, schedule the Veteran for an examination (or telehealth interview, etc., if appropriate) with an appropriate clinician to determine the nature and etiology of the Veteran’s leg pain. All pertinent documents must be provided to the examiner, including this remand. After the completion of the examination and any additional testing that may be appropriate, the examiner must answer the following: (a.) Identify any current diagnosis associated with the Veteran’s leg pain. (b.) If the examiner cannot identify a diagnosis associated with the Veteran’s leg pain, the examiner should determine whether the pain the Veteran experiences in her legs results in functional loss or impairment to the Veteran. Such impairment must be described in detail. If a diagnosis or functional impairment is not shown, the examiner should explain why. (c.) If the examiner determines the Veteran has a current leg disability or that the Veteran’s leg pain results in functional impairment, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any leg disability/pain was incurred in service, caused by service, or is otherwise related to service, to include in-service complaints of bilateral leg pain. (d.) If the examiner determines the Veteran has a current leg disability or that the Veteran’s leg pain results in functional impairment, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any leg disability/pain is proximately due to the Veteran’s service-connected right foot hallux valgus. (e.) If the examiner determines the Veteran has a current leg disability or that the Veteran’s leg pain results in functional impairment, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any leg disability/pain is aggravated (any increase in disability) her service-connected right foot hallux valgus. If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation The examiner should also consider the Veteran’s statement that her leg pain limits her ability to apply for and work at certain jobs. See June 2011 VA Form 9. All provided opinions must be supported by complete rationale. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding and must reflect consideration of the lay assertions of pertinent symptomatology. If the examiner determines and opinion cannot be made without resort to speculation, the examiner should state why. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED