Citation Nr: 21061253 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-36 104 DATE: October 1, 2021 ORDER Service connection for chronic headaches and migraines to include as due to an undiagnosed illness is denied. REMANDED Entitlement to service connection for floaters (myodesopsia) to include as due to an undiagnosed illness is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a back disability is remanded. FINDING OF FACT The Veteran's current chronic headaches and migraines are not related to active service, are not found to be an undiagnosed or multi-symptom illness manifested by headaches. CONCLUSION OF LAW The criteria for service connection for chronic headaches and migraines are not met. 38 U.S.C. §§ 1110, 1111, 1117, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1985 to August 1985, from July 1987 to December 1989, and from November 1990 to July 1991. She served in Southwest Asia during her final period of service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a October 2013 and November 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2019, at which time it was remanded for additional VA medical opinions. It has now returned to the Board for further appellate review. In May 2019, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2020). In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Here, the Veteran had active service in the Southwest Asia theater of operation from February 1990 to June 1991. Therefore, she is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki,581 F.3d 1313, 1316 (Fed Cir. 2009). 1. Entitlement to service connection for chronic headaches and migraines to include as due to an undiagnosed illness The Veteran contends that her headaches are due to her service in the Southwest Asia theater. Specifically, she asserts that she first began having headaches when she returned from the Persian Gulf. Additionally, the Veteran contends that her increased headaches over time are because certain chemicals were suspended and held in homeostasis until she reached menopause. The September 2015 VA examiner diagnosed the Veteran with a migraine disorder. The Veteran reported that her headaches began in 1991 when she returned from the Persian Gulf. After examination and file review, the examiner provided an opinion that it was less likely than not that the Veteran's headaches were due to an undiagnosed illness or part of a medically unexplained multi-symptom illness. It was explained that the migraine disability pattern is a disease with a clear and specific etiology and diagnosis. Migraines were a disorder of recurrent attacks that often had a throbbing or pulsatile quality. Accompanying features may include nausea, vomiting, photophobia, or phonophobia during attacks. Further, an evidence-based review concluded that stress, menstruation, visual stimuli, weather changes, nitrated, fasting, and wine were probable migraine trigger factors, while sleep disturbances and aspartame were possible migraine triggers. The September 2015 VA examination shows the Veteran has a diagnosis of migraines with a clear and specific etiology. As such, the Veteran's migraines cannot be considered an undiagnosed illness or a MUCMI. 38 C.F.R. § 3.317. Accordingly, presumptive service connection as a MUCMI is not warranted. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records do not document complaints, treatment, or diagnosis related to migraines or headaches. Medical treatment records show that in August 1999, the Veteran complained of headaches with visual disturbances that she indicated began after her time in the Persian Gulf. When she sought treatment in August 2009, she reported headaches mainly for the past three weeks with blurred vision. Treatment records show an increase in migraines in about 2013 to 2014. Another VA medical opinion was obtained from the previous examiner in August 2020. The examiner opined that it was less likely than not the Veteran's chronic headaches and/or migraines were incurred in or caused by military service, to include as but not exclusive to environmental exposures in the Persian Gulf region. It was noted that service treatment records were silent for complaints, diagnosis, or treatment for headaches and/or migraines. Additionally, when the Veteran established care with the VA in 1997, there were no complaints of any headache nor any chronic headache condition. The first documented headache was in August 1999. After that, there was no further documentation for complaints of headaches or migraines. As noted in the 2015 opinion, migraines can occur from a multitude of factors. Medical literature further states that migraines can occur during the menopausal years for various reasons. A review of reputable medical research finds no evidence to support the Veteran's current headaches and/or migraines resulting from her service in the Gulf War approximately thirty years ago. The objective evidence does not support her subjective assertions years later. Additionally, the Veteran's assertion of Gulf War syndrome emerging once homeostasis is disrupted by menopause has no basis in reputable medical literature. It was noted that the author of the Veteran's article was a journalist and not a one with medical training, skill, or knowledge. As such, the Board finds this relevant evidence to be of low to no weight. The examiner's opinion is probative, because it provides an explanation that contains clear conclusions and supporting data and considered relevant facts as described by the Veteran at the examination and as contained in the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the foregoing, the Board finds that a chronic headache disorder and/or migraines did not manifest during or within one year of the Veteran's active service. The relevant, competent evidence does not tend to support such a finding. For example, service treatment records are negative in that regard and the first evidence documenting any such disabilities is not shown until about eight years after service discharge. The preponderance of the competent and probative evidence also fails to establish that a present disability is etiologically related to service. The overall evidence of record is persuasive as to these matters. There is again no competent evidence demonstrating a diagnosis of chronic headache or migraine disorder during service or for many years after service nor competent evidence attributing any disorder to environmental exposures in Southwest Asia. Consideration has also been given to the Veteran's personal assertions that her headaches and/or migraines developed as a result of her service in the Persian Gulf and headaches soon after active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue as being due to environmental exposures is not conditions that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the preponderance of the evidence is against a finding that the Veteran's headaches and/or migraine disorder is related to service. The available competent and probative evidence weighs against a nexus to service. As such, reasonable doubt does not arise, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for floaters (myodesopsia) to include as due to an undiagnosed illness is remanded. As noted above, this issue was remanded to obtain a medical opinion. The Board's directives included addressing whether the Veteran's floaters were a congenital disease or defect. If not, then whether they were due to service. Unfortunately, an additional remand is necessary in this matter as the opinion does not comply with all the remand directives. In January 2021, the Veteran underwent a VA examination. It documented that she had diagnoses of vitreous floaters and dry eye syndrome. However, when giving an opinion, the examiner indicated that the Veteran did not have a current disability. In the same document, the examiner opined that the floaters were not aggravated beyond natural progression due to service. Rather the disability was not congenital but a natural formation with age. In another document it was also noted to be a congenital disease. In light of the foregoing, the January 2021 VA examination and opinion inadequate to decide the claim as the examination was internally inconsistent. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, obtaining an addendum opinion is warranted. 2. Entitlement to service connection for a bilateral knee disability is remanded. The Board remanded this issue to determine if the Veteran had a current disability. The October 2013 examination found that her knees were normal with imaging studies. The Veteran testified that the examination did not include a magnetic resonance imaging (MRI) study. This medical record from October 2013 was obtained and it showed that the Veteran was found to have mild medial and patellofemoral joint osteoarthritis. An addendum opinion was obtained in August 2020. The clinician provided a negative nexus opinion. The rationale was heavily based on the finding by the October 2013 VA examiner that her in-service knee sprain resolved without sequala. However, the 2013 VA examiner's findings were based on incorrect facts. As noted above, the examiner also found no abnormalities or a current disability. However, in the same month, an MRI showed the Veteran to have osteoarthritis. A medical opinion based on incorrect facts is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 40 (2007). As such, the August 2020 opinion is inadequate as the examiner did not make an independent finding. An addendum opinion regarding the etiology of the Veteran's bilateral knee disability is warranted. 3. Entitlement to service connection for a back disability is remanded. The Veteran underwent a VA examination in March 2021. She reported having back pain since 1991. The examiner provided a negative nexus opinion. The rationale was that the Veteran did not complain of back pain at separation examination in 1991, and therefore, the back injury mentioned had resolved. In consideration of the above, the Board finds that the March 2021 VA examination inadequate. The rationale provided was brief and conclusory, and relied almost exclusively on the lack of in-service report of back pain at separation. It is noted that service connection can be established for a disability that did not initially manifest in service if it develops due to an injury or disease that was incurred during service. 38 C.F.R. § 3.303. Therefore, a medical opinion based solely on the absence of in-service treatment or findings is deemed to be inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (finding an examination inadequate where the examiner relied solely on the lack of evidence in service treatment records and ignored the Veteran's lay statements to provide negative opinion). There is also no indication that the examiner considered the statements of the Veteran indicating continued back pain since service. Based on the foregoing, an addendum opinion regarding the etiology of the Veteran's back disability is warranted. These matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed floaters/myodesopsia. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a) State and support whether floaters/myodesopsia is considered a congenital disease (capable of getting better or worse) or disability (a static condition). (b) If a disease, is it as likely as not that floaters/myodesopsia was aggravated (increased in severity beyond natural progression) by active service? If so, please estimate the baseline level of disability prior to aggravation. (c) If considered a defect, does the Veteran now have any superimposed disabilities due to floaters/myodesopsia? If so, is it as likely as not that any superimposed disability was due to an event or illness during or due to active service? (d) If it is determined that floaters/myodesopsia is not a congenital disease or defect, explain why and then provide an opinion whether it is at least as likely as not related to an in-service injury, event, or disease, or was otherwise incurred during or due to active service. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's bilateral knee disability. The clinician is to address the following: Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's bilateral knee disability was caused by a disease or injury in service? Note: An October 2013 MRI study shows that the Veteran was found to have mild medial and patellofemoral joint osteoarthritis. Therefore, the Veteran has a current, chronic disability of the right knee. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's back disability. The clinician is to address the following: Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's back disability was caused by a disease or injury in service? In formulating the requested opinion, consider the Veteran's testimony of injuring her back during basic training and experiencing a low level of steady back pain ever since her service. See 5/21/19 Hearing Transcript, at 2-3, 7. (Continued on the next page) A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cruz, K. 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.