Citation Nr: 21073818 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 14-20 653 DATE: December 10, 2021 ORDER Entitlement to service connection for a headache disability, to include migraines, is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for depression, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a penis disability, to include erectile dysfunction (ED) and as secondary to a service-connected disability, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his headaches were incurred in or caused by military service. CONCLUSION OF LAW The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 and December 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2018, November 2019, and most recently in July 2020. The matter has returned to the Board for appellate review. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). 1. Entitlement to service connection for headaches The Veteran contends that his headache disability is related to service, or in the alternative, due to a service-connected disability. The Board will limit its discussion to service connection on a direct basis as it finds that service connection is warranted based on this theory of entitlement. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as headaches, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Headaches are considered an organic disease of the nervous system. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The July 2020 Board decision found that the prior remand directives as outlined in the November 2019 Board decision were not substantially complied with. See Stegall v. West, 11 Vet. App 268 (1998). In this regard, the November 2019 Board decision instructed the RO to obtain the Veteran's service induction examination which was absent from the Veteran's service treatment records (STRs) but whose existence was suggested by the presence of a report of medical history upon an enlistment report, later characterized on the document as an induction report, dated July 1965. The July 2020 Board decision found that the RO did not substantially comply with this directive and remanded the issue so that the RO could obtain the missing service induction examination. In July 2020, the RO requested the Veteran's STRs. The RO received the Veteran's military personnel records, which contained the August 1965 report of medical examination. Upon review of the records, the August 1965 examination report did not note a current condition manifested by headaches nor did it include a finding of headaches as a current disability. The Veteran's STRs show that he complained of headaches in October 1966 for about once a month lasting for four days, more often in hot weather, associated with some dizziness, but no photophobia or vomiting, no lateralization, no diplopia for about four years since being struck in the head while playing football and he was not unconscious or hospitalized then. He was prescribed Darvon as needed for headaches in November 1966. He complained of headaches again in August 1967. He was seen again in December 1967 for occipital headaches. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable (obvious or manifest) evidence demonstrates that the disability existed prior to service and was not aggravated by service. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that lay statements by an appellant concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service). As such, the Board determines that the Veteran did not have preexisting headaches upon entrance into service and he was presumed to be in sound condition. The Veteran was afforded VA examination in March 2012 and he was diagnosed with sinusitis headaches. The Veteran reported that he had headaches beginning from 2004 and attributed these headaches to his chronic sinusitis. The examiner opined that the headaches is more likely as not related to his chronic sinusitis but did not provide any rationale as to why the condition was not related to his military service. At the August 2019 VA examination for headaches, the Veteran reported that the condition began in 1967 when he was thrown from a truck and he hit his head and lost unconsciousness. His headaches occur randomly and last about an hour. He was diagnosed with tension headaches. The examiner opined that his headaches were not related to service as there is a documented report from the Veteran as to the onset of his headaches which would mean that his headaches existed prior to service and is therefore less likely than not the result of a disease or injury in service. However, as previously stated, the Board has found that the Veteran did not have preexisting headaches upon entrance into service. The Veteran was examined again in February 2020 and was diagnosed with migraines including migraine variants. The Veteran stated he has been having migraine headaches since 1966. The VA examiner opined that the migraine headaches which existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. She stated that in October 1966 the Veteran already had headaches and it was not possible to know if the accident during military service aggravated headaches as there are no headache diaries from 1966 to 1967. Nevertheless, this is based on an inaccurate factual premise as the Veteran's STRs document that he was seen several times for headaches during service. Most recently, the Veteran was examined for his headaches in September 2021 and a diagnosis of migraine headaches was given by the examiner. The Veteran stated he started to have frequent headaches a few years ago and have gotten worse. The VA examiner stated that the Veteran was given three different headache diagnoses over the years, but due to the symptoms described by the Veteran she agrees with the migraine headache diagnosis. The examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She stated that the Veteran unmistakably experienced headaches prior to military service after being hit in the head while playing football four years prior to 1966. He was seen in the clinic a couple of times during service, but the instances were acute, and no chronicity was noted. Here, the Board notes that the Veteran has stated that his headache condition began at various times at the VA examinations. However, the Veteran indicated at two VA examinations that his headaches began during service and the Veteran's STRs notes that he was seen off and on throughout service for headaches. While there is mention of possible headaches prior to enlistment, there is no medical evidence that headaches were preexisting, and the Veteran is therefore presumed to be sound upon entrance. The Veteran is competent to report about his headaches and headache history since it consists of readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the March 2012, August 2019, February 2020, and September 2021 VA medical opinions weigh against the claim. The Board does not find the rationales convincing since it conflicts with the Veteran's probative report about a continuity of symptomatology beginning in service. The Board attaches limited probative value to the VA medical opinions of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). As such, the Board finds that the Veteran's reports about a continuity of symptomatology beginning in service are probative to show a relationship to service for the current migraine headaches. For the reasons set forth above, the Board finds that the evidence is evenly balanced as to whether the Veteran's headaches are related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence may be sufficient in and of itself to substantiate a service connection claim). Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for headaches. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to service connection for a cervical spine disability 2. Entitlement to service connection for a lumbosacral spine disability The Veteran asserts that his cervical spine and lumbosacral spine disability are a result of a motor vehicle accident that occurred during service in 1967. The July 2020 Board decision remanded the issues as it found that the prior remand directives as outlined in the November 2019 Board decision were not substantially complied with. See Stegall v. West, 11 Vet. App 268 (1998). In this regard, the November 2019 Board decision found that the August 2019 VA examiner did not consider the Veterans lay statements regarding his onset of symptoms following the 1967 motor vehicle accident in service. The Board noted that the lay evidence including statements by the Veteran and his family members appear to have been discounted and not adequately considered by the examiner as evidence of a disability originating in service. Similarly, the July 2020 Board decision found that the March 2020 VA examiner provided negative neck and back opinions as to an etiology related to service and instead attributed the current disabilities to the Veteran's post-service accident in 1974 and failed to provide a rationale which considered and addressed the Veteran's and his family's statements regarding the history of his disabilities. As such, the Board remanded for another VA examination as the March 2020 examination was inadequate. The Veteran was afforded VA examinations for his spine disabilities in September 2021. The VA examiner once again provided a negative nexus opinion for Veteran's neck condition, opining that the condition is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale she provided was that the Veteran was in a motor vehicle collision in 1967 while in service. There are no notes mentioning neck pain from the accident in 1967. There are notes and treatment/diagnoses from the accident that occurred in 1974. She also attributed the Veteran's condition to his profession as a hairdresser and due to his "wear and tear" on the body. Additionally, the September 2021 VA examiner found that the Veteran's lumbosacral spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She stated that the Veteran's back condition continues to be an issue due to the Veteran's job preference in which he stands for prolonged periods of time and is not associated with the 1967 accident as there is no documentation of a clinic(s) visit(s) or treatment for this condition. However, the examiner goes on to state that the Veteran sought care one time and there is no further documentation of care or chronicity while in service. She stated that the Veteran was in another motor vehicle collision in May 1974, and he was seen at a private hospital and with a private physician where he sustained back injuries. Here, the September 2021 VA examiner essentially provided a negative opinion based on the lack of documentation of treatment for a neck and low back disability during and after service. The Board notes that the Veteran is competent to attest to the in-service injury, and the onset of symptoms since. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner did not take the Veteran's lay statements into consideration regarding his symptoms since service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("Once [VA] undertakes the effort to provide an examination when developing a service-connection claim [VA] must provide an adequate one"). An examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in treatment records and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, the September 2021 VA examiner did not appear to consider the lay statements from the Veteran's family members regarding his symptoms since the 1967 in-service accident. Consequently, a remand is necessary as the Board cannot make a fully informed decision on the issues because an adequate medical opinion is not of record, and in accordance with Stegall, the Board must remand for full compliance with the Board's prior remand directives. 3. Entitlement to service connection for depression, to include as secondary to a service-connected disability The Veteran contends that his depression is related to service or is secondary to a service-connected disability. In the July 2020 decision, the Board found that the March 2020 VA examiner relied on the supposition that the Veteran's low back disability with radiculopathy was due to the motor vehicle accident in 1967 and not due to the subsequent accident in 1974 or other causes. In relying on this undetermined validity of this factual premise, the examiner opined that the Veteran's depression was due to pain resulting from the disabilities of his back and leg pain from the accident in service in 1967. The July 2020 Board decision determined that remand was necessary as the psychologist who provided the March 2020 examination failed to consider the Veteran's history of a motor vehicle accident in 1974 and therefore, resulted in unresolved underlying factual considerations regarding the Veteran's back disability. The Veteran was examined for his depression in September 2021. The VA examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness and that is it caused by day-to-day stressors and the aging process typical for people in his age bracket. For secondary service connection, the examiner opined that the condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition because the Veteran does not have a service-connected disability. He further stated that even if he did, the diagnosis if not related because his condition is caused by day-to-day stressors and the aging process typical of most people in his age bracket. This was the same rationale as the negative nexus opinion for direct service connection. The Board finds that based on the limited rationale provided by the VA examiner, an addendum opinion is required. Furthermore, as the other issues for service connection are being remanded herein, remand for the issue of service connection for depression is also necessary to determine if the depression is related to any service-connected disability, to now include migraine headaches and any potential service-connected disability, including the low back disability. 4. Entitlement to service connection for a penis disability, to include erectile dysfunction (ED) and as secondary to a service-connected disability The Veteran maintains that his penis disability is related to his military service, or in the alternative, related to a service-connected disability. The July 2020 Board decision remanded the issue because the March 2020 examiner provided a negative nexus opinion for the Veteran's erectile dysfunction based on the rationale that the condition was unrelated to the Veteran's service-connected disabilities. The Board found that the examiner failed to address why the erectile dysfunction would not be related to the claimed low back disability with radiculopathy and, the examiner failed to consider or address the Veteran's self-report at the examination that he had the condition since 1966 and had been treated for it since that time. The Veteran was afforded another VA examination in September 2021. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. She stated that the erectile dysfunction was not treated while in service. The Veteran was treated for urethritis and cystitis and had hydrocele repair performed. None of these three conditions when acute cause erectile dysfunction and none of these conditions cause erectile dysfunction in an acute episode and these were not documented as chronic, and no chronicity was established. Regarding secondary service connection, the examiner opined that the condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. She indicated that during service, urethritis and cystitis were the only acute diagnoses for which he was treated, both resolved completely and there is no record of chronicity. She also stated that since the Veteran is not service connected for any disability, his erectile dysfunction is not related to any of these conditions. However, the Board finds that the July 2021 medical opinions for erectile dysfunction are inadequate as the examiner did not consider the Veteran's lay statement that he had the condition since 1966 and had been treated for it since that time. In short, the VA examiner failed to take into consideration the credible lay statements from the Veteran when forming her opinion and did not comply with the prior remand instructions as stated in the July 2020 Board remand directives. The matters are REMANDED for the following action: 1. Obtain VA treatment records from March 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion from the VA provider who issued the September 2021 medical opinion to address the claim for service connection for a neck condition and low back condition (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran for a neck and low back condition is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: 1) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a neck condition that: a) had an onset in service, or is otherwise related to military service, including due to the in-service motor vehicle accident in 1967; or b) manifested to at least a compensable degree within one year of his discharge of active-duty service period. If so, the examiner should comment on the nature of those manifestations. 2) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a low back condition that: a) had an onset in service, or is otherwise related to military service, including due to the in-service motor vehicle accident in 1967; or b) manifested to at least a compensable degree within one year of his discharge of active-duty service period. If so, the examiner should comment on the nature of those manifestations. The examiner is to be advised that this examination is required because the prior VA examiner in September 2021 failed to provide an adequate rationale considering lay statements of symptoms and history. The examiner must also consider the Veteran's past statements of symptoms and history of symptoms and treatment, including statements in February 2011, at examinations in September 2003, March 2012, and March 2020, and statements by family members in February and March of 2011. The examiner is to also consider the May 2003 statement from Dr. R.M. that opined that it is more probable than not the Veteran's illness and continuing back pain is due to his original injury in 1967. Additionally, the examiner must consider the post-service medical records that show the Veteran incurred neck and low back injuries and/or pain after his service. The examiner should also consider contrary evidence, including the Veteran's statement at a March 2012 VA examination that he began experiencing intermittent, chronic mechanical neck pain approximately five or six years ago, and medical records as noted by the August 2019 examiner documenting treatment for back disability following a post-service motor vehicle accident in 1974. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 3. Obtain an addendum opinion from the VA provider who issued the September 2021 medical opinion to address the claim for service connection for depression (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran for depression is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has depression that: a) had an onset in service, or is otherwise related to military service; or b) was caused or aggravated (worsened) by one of more service-connected disabilities (including migraine headaches) or claimed disabilities (low back condition, neck condition, or erectile dysfunction). If any positive opinion is given, the examiner should specify which disability or disabilities substantially caused or aggravated (worsened) the Veteran's depression. For such questions of aggravation, the examiner must consider whether there was worsening, even if only temporary, over the course of the claim. A recent Court case clarified that secondary service connection does not require permanent worsening to qualify for service connection based on aggravation by a service-connected disability. See Ward v. Wilke, 31 Vet. App. 233 (2019). The examiner is reminded that he or she must address both causation and aggravation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Obtain an addendum opinion from the VA provider who issued the September 2021 medical opinion to address the claim for service connection for a penis disability/erectile dysfunction (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran for a penis disability/erectile dysfunction is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a penis disability/erectile dysfunction that: a) had an onset in service, or is otherwise related to military service; or b) was caused or aggravated (worsened) by one of more service-connected disabilities (including migraine headaches) or claimed disabilities (low back condition, neck condition, or erectile dysfunction). If any positive opinion is given, the examiner should specify which disability or disabilities substantially caused or aggravated (worsened) the Veteran's penis disability/erectile dysfunction. The examiner is to be advised that the prior VA examination September 2021 was deficient because the examiner failed to consider or address the Veteran's self-report at the March 2020 examination that he had the erectile dysfunction condition since 1966 and had been treated for it since that time. In providing the requested opinion, the examiner should consider the August 2019 VA examiner's observation that erectile dysfunction is multifactorial and may be due to multiple physiological and psychological factors. The examiner should also consider whether erectile dysfunction is caused or aggravated by a disability directly or caused or aggravated by medication or other treatment for a disability. For such questions of aggravation, the examiner must consider whether there was worsening, even if only temporary, over the course of the claim. A recent Court case clarified that secondary service connection does not require permanent worsening to qualify for service connection based on aggravation bey a service-connected disability. See Ward v. Wilke, 31 Vet. App. 233 (2019). The examiner is reminded that he or she must address both causation and aggravation. The examiner is reminded that rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.