Citation Nr: 21069155 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-37 748 DATE: November 17, 2021 ORDER Entitlement to service connection for osteoarthritis of the right knee is granted. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for a chronic disability manifested by shortness of breath is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, he has experienced right knee pain since his separation from service that is etiologically related to a current right knee disability. 2. Resolving all reasonable doubt in favor of the Veteran, he has experienced headaches since his separation from service that are etiologically related to a current migraine headache disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). 2. The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from November 1953 to November 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in June 2018. These issues were previously before the Board in August 2020, at which time, the issues were remanded to the AOJ for additional development. This case has now been returned to the Board for further appellate action. Service Connection The Veteran seeks service connection for a right knee disability and headaches, which he asserts are related to service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), including arthritis and organic diseases of the nervous system (such as migraines). See 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for a right knee disability The Board has carefully reviewed the evidence of record and finds that the Veteran's symptoms of right knee pain have been chronic and continuous since discharge and are not attributable to intercurrent causes. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a right knee disability characterized as osteoarthritis of the right knee are met. At the outset, the Board notes that a current diagnosis of osteoarthritis of the right knee has been established. See August 2017 private treatment record; December 2020 VA examination; July 2021 VA x-ray report. Service treatment records are silent as to any complaints, treatment or clinical diagnosis for a right knee condition. Military personnel records reflect that throughout the Veteran's 20 year military career, he was repeatedly commended for the performance of his duties. Notably in March 1963, a supervisor noted that the Veteran was able to repair major components on an aircraft, rather than removing the components for the field shop or depot maintenance. Post-service treatment records reflect treatment for a right knee condition from at least August 2015. In August 2017, a private treatment provider noted that the Veteran had been experiencing pain in his right knee for the past 2 to 3 years. The treatment provider noted that the Veteran would occasionally take OTC medication when it would flare up. The Board acknowledges the testimony and statements of the Veteran and his spouse in support of his claim, and notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. The Veteran is certainly capable of describing symptoms of headaches that he has experienced during and after service, and his reports in this regard are considered credible lay evidence of symptomatology. Further, the Board notes that arthritis claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In August 2018, the Veteran and his spouse, who have been married since July 1954, have stated that the Veteran injured his right knee in service due to crawling and bumping his knees while servicing aircraft. See also August 1954 Military Personnel Record; July 1964 Marriage Certificate. The Veteran stated that his right knee had been bothering him since service. The Veteran's spouse reported that the Veteran currently had arthritis in both knees, and his right knee was the worst. The Veteran asserts that he did not complain about his right knee injury because he did not know what resources were available to him at the time; and asserts that he sought treatment immediately after service. See December 2019 Form 9 Substantive Appeal. The Board finds that the statements of the Veteran and his spouse are competent and credible and support a finding that the Veteran's right knee pain had its onset in service, and that his symptoms continued when the Veteran separated from service. Layno, supra. See 38 C.F.R. § 3.159(a)(2). Notably, the Veteran's assertion that he crawled on his knees and repeatedly bumped his knees while servicing aircraft is supported by the military personnel records which indicate that the Veteran worked on aircraft in conditions that would typically require the removal of the aircraft component in order to effectuate repair. The Veteran essentially contends that he began experience right knee pain during his time in service; and his right knee pain has been "chronic and continuous since discharge." These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan, supra. Based on a preponderance of the evidence, the Board finds that there is a nexus between the Veteran's current right knee disability and service. Pursuant to the August 2020 Board remand, the Veteran was afforded a VA examination in December 2020. The examiner opined that the Veteran's right knee osteoarthritis was less likely as not incurred in or had its onset during the Veteran's service. The examiner noted that the Veteran reported bumping and banging his knee during his activities during service. The examiner noted that the Veteran retired from service in 1973 without any specific knee findings or symptoms on his retirement medical evaluations. The examiner noted that the Veteran was found to have x-ray evidence of arthritis in 2017 and was diagnosed with right knee osteoarthritis. The examiner opined that the medical records did not support an ongoing knee condition that started in service and continued from service. The examiner noted that osteoarthritis is a common condition that the Center for Disease Control (CDC) estimates affects 32.5 million adults, and the risk of this increases with advancing age, which is a significant risk factor for the Veteran. The examiner did not specifically discuss whether it was at least as likely as not that the Veteran's right knee disability was related to the Veteran's crawling and bumping his knees while servicing an aircraft. The Board notes that although the December 2020 VA examiner opined that the Veteran's medical records do not support an ongoing right knee condition that started in service and continued from service, the Board finds that the lay statements of the Veteran and his spouse are competent and credible and support an finding that the Veteran had an ongoing right knee condition during service, and following service. See Buchanan, supra. The Board essentially finds that the evidence is in equipoise as to whether the Veteran's osteoarthritis of the right knee is related to service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Id. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for a right knee disability characterized as osteoarthritis of the right knee is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for headaches The Board has carefully reviewed the evidence of record and finds that the Veteran's symptoms of headaches have been chronic and continuous since discharge and was not attributable to intercurrent causes. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for migraine headaches are met. At the outset, the Board notes that a current diagnosis of migraines has been established. See December 2020 VA examination. Service treatment records reflect treatment for headaches from at least February 1968. See also November 1968 service treatment record. In addition, In March 1972, the Veteran reported headaches, and feeling dizziness and weakness, especially in the morning. As noted, military personnel records reflect that throughout the Veteran's 20 year military career, he was repeatedly commended for the performance of his duties, including working extra hours. See November 1970, April 1971, August 1971, and February 1972 Military Personnel Records. In addition, in March 1963, a supervisor noted that the Veteran was able to repair major components on an aircraft, rather than removing the components for the field shop or depot maintenance. Private treatment records reflect that the Veteran underwent an MRI of the brain, which revealed subdural hematoma, which was evacuated by Burr hole in 2013. The treatment provider noted that the findings were consistent with mild microvascular disease; and noted that the Veteran had been having headaches for two months. The Board acknowledges the testimony and statements of the Veteran and his spouse in support of his claim. As noted, lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. The Veteran is certainly capable of describing symptoms of headaches that he has experienced during and after service, and his reports in this regard are considered credible lay evidence of symptomatology. Further, the Board notes that migraine claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. See Jandreau, supra; Buchanan, supra; Layno, supra. The Veteran has reported that he repeatedly bumped his head while maintaining and installing equipment on aircraft during service, which caused him to have headaches and dizziness during service. See August 2018 NOD. The Veteran and his spouse asserted that the Veteran would constantly take OTC medication to treat his headaches, and that when he came from work, his head would hurt so badly that he would have to lie on the floor for hours at a time to relieve the pain for a while. The Veteran's spouse stated that it went on for years, but he never complained or told a treatment provider about his problem. The Veteran and his spouse reported that the Veteran underwent an operation for a subdural hematoma after the result of an MRI showed water on his brain. The Veteran and his spouse stated that although his headaches were not as severe as before the operation, he continued to have dizzy spells, light-headedness and headaches. See August 2018 NOD; August 2018 Buddy Statement. The Board finds that the statements of the Veteran and spouse are competent and credible and support a finding that the Veteran had headaches in service, and that his symptoms continued when the Veteran returned home from service. Layno, supra. See 38 C.F.R. § 3.159(a)(2). Notably, the Veteran's assertion that he repeatedly hit his head while servicing aircraft is supported by the military personnel records which indicate that the Veteran worked on aircraft in conditions that would typically require the removal of the aircraft component in order to effectuate repair. In addition, the military personnel records also support the assertions of the Veteran's spouse, that he would take OTC medication to treat his headaches and never complained about his problem. See also August 2017 private treatment records. The Veteran essentially contends that he began experienced headaches during his time in service; and his headaches has been "chronic and continuous since discharge." These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. Pursuant to the August 2020 Board remand, the Veteran was afforded a VA examination in December 2020. The December 2020 VA examiner noted that the Veteran reported that he was unsure of the exact start date of his headaches, and he reported that he thought they began around the 1980s and reported that the headaches came on slowly over time. In addition, the examiner noted that the Veteran reported that in 2013, he was having acute neurologic symptoms and was found to have an abnormality on MRI, subdural hematoma, which required him to have neurosurgical intervention, with drainage. The examiner opined that it was considered a separate, acute neurologic diagnosis which had been treated and resolved. The examiner noted that the Veteran reported that his chronic headaches continued afterwards relatively unchanged. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a sufficient nexus between the Veteran's current migraine headaches and service. The Board notes that although the December 2020 VA examiner opined that the Veteran's medical records do not support an ongoing headache condition during service, the Board finds that the lay statements of the Veteran and his spouse are competent and credible and support a finding of an ongoing headache condition during service and following service. See Buchanan, supra. In addition, the Board finds that the December 2020 VA opinion coupled with the other medical evidence of record including service treatment records, post-service treatment records and lay evidence, also supports a conclusion that service connection for migraine headaches is warranted. The examiner noted that the Veteran was diagnosed with chronic migraines based on history and examination. The examiner noted that the Veteran was unclear when the headaches began but also reported that his headaches began in the 1980s and continued through the years, and the examiner opined that the Veteran's history meets the established criteria for diagnosis of migraine headaches. The Board essentially finds that the evidence is in equipoise as to whether the Veteran's migraine headaches are related to service. See Alemany, supra; Wise, supra. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for migraine headaches is warranted. See 38 U.S.C. § 5107; Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for a chronic disability manifested by shortness of breath is remanded. The Veteran seeks service connection for shortness of breath, which he asserts is related to service, including exposure to fumes and chemicals while servicing aircraft. See August 2018 NOD; August 2018 Buddy Statement. The Veteran was previously afforded a VA examination in May 2018. In August 2020, the Board found that the May 2018 VA medical opinion was inadequate for decision making purposes; and remanded the issue to the AOJ for an addendum opinion. Pursuant to the August 2020 Board remand, the Veteran was afforded a VA examination in December 2020, which reflected a diagnosis of dyspnea with an unknown etiology. The Board notes that in connection with the December 2020 VA examination, the Veteran underwent a pulmonary function test in July 2021. The evaluator opined that the plateau on expiratory flows suggested an obstruction; and opined that the Veteran had a diagnosis of minimal obstructive airways disease. In addition, the Veteran also underwent an x-ray examination. The evaluator opined that the chest x-ray revealed mild chronic lung changes, consistent with an element of COPD. The VA examiner did not specifically comment on these findings nor did the examiner specifically address whether the Veteran's chronic disability, including shortness of breath, was related to exposure to fumes and chemicals while servicing aircraft. The Board finds that a supplemental VA opinion is warranted to determine the nature and etiology of the Veteran's chronic disability manifested by shortness of breath. The matters are REMANDED for the following action: Obtain a VA addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran's chronic disability manifested by shortness of breath. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination. Based upon a review of the record, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran's chronic disability manifested by shortness of breath, including obstructive airway disease, had its onset in service or was otherwise caused by active service, including exposure to fumes and chemicals while servicing aircraft. In rendering the opinions, the examiner must consider and discuss the statements of the Veteran and his spouse regarding the onset and continuity of the symptoms of his chronic disability manifested by shortness of breath, including obstructive airway disease. The examiner must consider and discuss the July 2021 chest x-ray and the July 2021 pulmonary function tests. The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. The examiner should note that "in keeping" with the benefit of the doubt rule, which is the standard of proof for veterans benefits, "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Id. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.