Citation Nr: 21074044 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-34 600 DATE: December 14, 2021 REMANDED Entitlement to service connection for a headache disability, to include migraines, to include as due to undiagnosed illness and/or as secondary to service-connected eyelid myokymia and/or posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to undiagnosed illness and/or as secondary to service-connected status post umbilical hernia repair and/or PTSD, is remanded. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine (low back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1995 to December 2011, to include service in Southwest Asia. His decorations include the Iraq Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for a headache disability, to include migraines, to include as due to undiagnosed illness and/or as secondary to service-connected eyelid myokymia and/or PTSD, is remanded. The Veteran contends that his headache disability was incurred in or caused by service. Specifically, he contended in his June 2017 substantive appeal that he had had headaches since 1996, when he was in service, and that they had continued since. He also asserted that he had had eye twitching associated with headaches since that time, and that he was hospitalized for headaches on one occasion in 1997. He also contends that his migraine headaches are secondary to his service-connected eyelid myokymia and/or PTSD. Specifically, he reported in a July 2017 VA treatment record that he noticed eye twitching two days before a bad headache as well as pressure behind the eyes prior to a headache. In a January 2020 submission, he contended that his migraine headaches were secondary to PTSD and cited to a prior Board decision from May 2015 in which the Board found that another claimant's headaches were secondary to his service-connected PTSD. In a December 2017 VA treatment record, the Veteran reported that he thought that stressful situations triggered his headaches. As an initial matter, the Board notes that the Veteran has current diagnoses of both migraine and tension headaches, as demonstrated by an April 2015 VA examination. The first element of service connection has therefore been established. The Veteran is also currently service connected for both eyelid myokymia and PTSD. The Board also notes that service treatment records (STRs) show that the Veteran was treated in service for headaches on two occasions. The first occasion was in August 1997, when he was treated for a severe headache. The only diagnosis given at that time, however, was a urinary tract infection, and he was prescribed Motrin. The second occasion was in September 1997, when the Veteran reported a three-day history of bi-frontal and bi-occipital headaches and posterior neck pain. He was diagnosed with acute muscular contraction headache and again prescribed Motrin. In an August 2006 post-deployment questionnaire, he specifically denied having headaches. The Veteran was afforded a VA general medical examination in November 2011, just prior to his separation from service. At that time, the examiner found that the Veteran did not have any neurological conditions, including headaches and/or migraine headaches. Turning to post-service treatment records, the Veteran was treated in August 2012 for recurrent, involuntary movements of both upper eyelids, but he specifically denied having headaches at that time. In a January 2015 VA treatment record, he reported that he had developed headaches approximately 6 to 10 months earlier, and he was diagnosed with tension headaches at that time. The Veteran was afforded a VA Gulf War examination in April 2015. The examiner found that the Veteran did not have any diagnosed illnesses for which no etiology was established. He noted the Veteran's report that his headaches started around 2011 or 2012 but stated that his headaches started after service in approximately 2014. He opined further that the condition was not due to Gulf War environmental exposure. The Veteran was afforded a VA examination specifically in connection with his claim for service connection for headaches in April 2017. The examiner offered a negative nexus opinion, stating that it was at least as likely as not that his headaches were caused by post-service processes. He reasoned that there was no objective medical record evidence to indicate that the Veteran's headaches during service did not resolve without residuals. The Veteran was afforded another VA examination in connection with his claim in October 2019. The Veteran reported that he started having a lot of headaches around 1998, that he was seen at sick call for headaches, and that he would get some twitching in his eyes prior to the onset of a migraine headache. The examiner offered a negative nexus opinion regarding whether the Veteran's headache disability was secondary to eyelid myokymia. He reasoned that myokymia affects only the eyelid, that that type of twitch or spasm was very common and happened to most people at one time or another, and that while it could range from barely noticeable to bothersome, it usually went away within a short time. The examiner also stated that one leading cause of migraines was cortical spreading depression, which he explained was brain activity that swept over the brain and could be seen on magnetic resonance imaging (MRI). He further stated that hyperactivity in the brain stem caused migraines as well, but that there was no supporting medical literature to support the notion that eyelid twitching was even a remote possible cause of migraine headaches. He added that it was possible that eyelid twitching could be an aura symptom of migraine headaches. The examiner then stated that the Veteran's issues with extreme stress, as detailed in the medical records, were the most likely cause of any chronic migraine headaches. The Board notes that, to date, none of the VA examiners have expressly considered the theory that the Veteran's headache disability is secondary to his service-connected PTSD. Given the Veteran's contentions and the October 2019 VA examiner's opinion that stress is the most likely cause of the Veteran's headaches, the Board finds that a remand for an addendum opinion is warranted. While the October 2019 VA examiner's opinion that stress is the most likely cause of headaches indicates that there may be a link between the Veteran's PTSD and his current headache disability, the Board finds that the opinion, without further explanation, is insufficient to support an award of service connection at present. The opinion is not supported by sufficient rationale, and in any event it does not identify the source of the Veteran's stress, whether it be from his service-connected PTSD or from some other source or sources. The Board also notes that, at present, there are no records in the claims file regarding a hospitalization for headaches in 1997. Historically, records of in-service hospital treatment were sometimes stored separately from other records. Because it is not clear that efforts have been exhausted to obtain the records to which the Veteran refers, additional development is required. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). Updated records of any VA treatment should also be procured. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). As to the May 2015 Board decision cited to by the Veteran in support of his claim, the Board notes that prior Board decisions pertaining to one veteran are not precedential with respect to another. 38 C.F.R. § 20.1303. However, such Board decisions may be considered to the extent that they reasonable relate to the case, keeping in mind that each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. Id. 2. Entitlement to service connection for GERD, to include as due to undiagnosed illness and/or as secondary to service-connected status post umbilical hernia repair and/or PTSD, is remanded. The Veteran contends that his GERD was incurred in or caused by service. Specifically, in a January 2020 submission he contended that he had GERD during his active service but only used over the counter medications to treat it at that time. He further noted that he reported the illness in June 2012 but did not claim it through VA because he was receiving treatment for it. At the July 2021 Board hearing, he contended that GERD was secondary to his service-connected status-post umbilical hernia repair and/or PTSD. As an initial matter, the Board notes that the Veteran has a current diagnosis of GERD, as demonstrated by the April 2015 VA examination. The first element of service-connection has therefore been established. He is also currently service connected for status post umbilical hernia repair and PTSD. At the November 2011 VA examination, the examiner indicated that the Veteran had abdominal, inguinal, and/or femoral hernias, but did not indicate that he had any esophageal conditions, including GERD. Turning to post-service treatment records, a June 2012 private treatment record shows that the Veteran sought treatment for acid reflux at that time. The examiner also noted that the Veteran had used over the counter medications to treat GERD for years and diagnosed chronic reflux esophagitis. At the April 2015 VA Gulf War examination, the examiner identified the date of diagnosis of GERD as 2009, noting that the Veteran reported that his symptoms started in 2009 during service. The examiner found that GERD had a clear and specific etiology, and that it was therefore not an undiagnosed illness. He opined that the condition was not due to Gulf War environmental exposures. An August 2015 VA treatment record shows that the Veteran complained of progressively worsening acid reflux at that time, and that his symptoms had been present for greater than five years. The provider noted that a review of the medical record indicated that the Veteran was diagnosed with helicobacter pylori infection while on active duty, but that he seemed to be unaware of that diagnosis and stated he never received treatment for it. The Veteran was afforded a VA examination in connection with his claim in April 2017. The examiner opined that it was at least as likely as not that the Veteran's GERD was caused by post-service processes. He further opined that there was no nexus between abdominal ventral/epigastric hernia during service and the Veteran's current GERD, and that there was no medical record evidence to indicate otherwise. He reasoned that there was no pathophysiologic relationship between the Veteran's abdominal ventral/epigastric hernia during service and his current GERD, that abdominal ventral/epigastric hernias do not cause GERD, and that GERD is caused by relaxation of the lower esophageal sphincter. The Board notes that neither the April 2015 nor the April 2017 examiner offered a clear opinion with respect to direct service connection. While the April 2015 examiner opined that GERD was not an undiagnosed illness and that it was not due to Gulf War environmental exposures, he did not offer an opinion as to whether the Veteran's GERD was incurred in or caused by service, even where he identified the date of diagnosis as 2009. The April 2017 examiner provided an opinion only with respect to whether the Veteran's GERD was secondary to his service-connected status post umbilical hernia repair, and did not address the theory of direct service connection. Additionally, neither of the VA examiners provided an opinion as to whether the Veteran's GERD is secondary to his service-connected PTSD. Under the circumstances, the Board finds that an addendum opinion is warranted. 3. Entitlement to a rating in excess of 10 percent for a low back disability is remanded. The Veteran contends that his low back disability warrants a rating in excess of 10 percent. In his June 2017 substantive appeal, he contended that a prior VA examination performed in connection with his claim was not done correctly. At the July 2021 Board hearing, he testified that his low back disability had gotten worse since his most recent VA examination. The Veteran was afforded VA examinations in connection with his claim in April 2015 and October 2019. In light of his allegation of worsening, the Board finds that a new VA examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). These matters are REMANDED for the following action: 1. Request through official sources any hospital records that might correspond to the care the Veteran reportedly received during service in 1997 for a headache disability. If additional information is required from the Veteran to request the records, he should be asked to provide it. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA examiner who offered an opinion regarding the etiology of the Veteran's headache disability in October 2019. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's headache disability was a) caused or b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected PTSD. In so doing, the examiner should consider the Veteran's contention as reflected in a December 2017 VA treatment record that stressful situations trigger his headaches; the examiner's own finding in the October 2019 VA examination report that stress is the most likely cause of the Veteran's chronic migraine headaches; and the analysis set out in the May 2015 Board decision of record, pertaining to another Veteran. If the October 2019 examiner is no longer employed by VA or is otherwise unable to provide the opinion(s) requested, arrange to obtain the requested information from another qualified examiner. The need for another in-person examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medial rationale for all opinions expressed must be provided. 4. Also arrange to provide the record on appeal to a qualified VA clinician for the purpose of assessing the etiology of the Veteran's GERD. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's GERD had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the Veteran's contention that he developed symptoms of GERD in service but treated it with only over the counter medications during service. The examiner should also consider the June 2012 private treatment record which shows a diagnosis of chronic reflux esophagitis and indicates that the Veteran had used over the counter medications to treat GERD for years by that time. He or she should also consider the April 2015 VA examination report identifying the date of diagnosis of GERD as 2009, which is during the Veteran's active service, and the August 2015 VA treatment record indicating that the Veteran had been treating his GERD for five years by that time. If the examiner finds that it is unlikely that the Veteran's GERD was incurred in or is otherwise attributable to service, the examiner should offer a further opinion as to whether it is at least as likely as not that the Veteran's GERD was a) caused or b) aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected PTSD. The need for another in-person examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medial rationale for all opinions expressed must be provided. 5. Also arrange to have the Veteran scheduled for a VA examination of his low back. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if feasible. Range of motion results should be recorded in degrees in each of the four aforementioned modes, if possible. If such testing is not feasible, the examiner should explain why that is so. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the time of examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.