Citation Nr: 21075058 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-17 620 DATE: December 17, 2021 ORDER Entitlement to service connection for degenerative changes of the left hip is granted. Entitlement to service connection for migraine headaches is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his chronic left hip disability had its onset in service. 2. Resolving reasonable doubt in favor of the Veteran, his chronic migraine headache disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for degenerative changes of the left hip have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for establishing service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from February 1966 to November 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In December 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In March 2020, May 2021, July 2021, and September 2021, the Board remanded these claims for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. In these latter circumstances, a showing of continuity of symptomatology since service is required to support the claim. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical examination is inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for degenerative changes of the left hip The Veteran and his representative assert that he is entitled to service connection for a left hip disability which had its onset in service. Specifically, the Veteran claimed that he suffered from an injury when he learned to water ski in 1967 which has resulted in chronic left hip pain. The Board notes that a treatment records from December 2019 diagnosed the Veteran with mild degenerative changes of the bilateral hips, additionally VA examinations from March 2020 and May 2021 also diagnosed the Veteran with arthritis in his left hip. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for complaints or a diagnosis relating to a left hip injury. The Veteran provided testimony in a Board hearing in December 2019 and explained that the in-service waterskiing incident resulted that resulted in injuries to his bilateral hip; after the injury, the Veteran admitted that he did not report the incident due to fear of getting in trouble. The information that was provided by the Veteran is not contradicted by any evidence of record; in fact, the September 2020 and October 2020 medical opinions provided by the March 2020 VA examiner, while providing a negative opinion, noted that the Veteran was considered a creditable source for his service history. The Board agrees with this portion of the opinion and finds that the Veteran is deemed to be credible in his assertions with regards to the in-service injury history. Therefore, the second element for establishing service connection has been met. As to the final element of a service connection claim, the nexus between the Veteran's left hip disability and the in-service injury, the evidence is mixed. At the December 2019 Board hearing, the Veteran explained that he had issues with his left hip since his injury during service, and that his hip pain persists to this day. The Veteran believes that his left hip disability had its origin due to his in-service injury. The Veteran is considered competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran is not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had pain in his left hip for years since he was in active service are both competent and credible, his statements alone are not sufficient to medically attribute his current disability to the injury he experienced in service. Two VA examinations were conducted, in March 2020 and May 2021, after which the March 2020 VA examiner provided additional nexus opinions in September 2020 and October 2020, and the May 2021 VA examiner provided an additional addendum opinion in October 2021 respectively. In March 2020, the Board remanded this claim to afford the Veteran a VA examination. During the March 2020 VA examination, the Veteran reported his in-service waterskiing injury to his hip, which he claimed resulted in years of pain, which increased in the last 20 years. The examiner noted that the Veteran's separation examination in October 1969 was silent of complaints of hip pain, and while there was a letter from the Veteran regarding injuring his hip while skiing during service, there were no objective records supporting the claim. The examiner added that, while there is a diagnosis of a current left hip disability, the Veteran left service more than 50 years ago, therefore a nexus had not been established. In September 2020 and October 2020, the March 2020 VA examiner provided additional addendum opinions, noting that, while the Veteran is considered a creditable source for his service history, there was still a lack of evidence supporting that the injury occurred during his active-duty service, as the Veteran is not considered to be competent to diagnose a left hip disability dating back to his service. In May 2021, the Board remanded the claim to obtain a new addendum opinion, as the examiner relied on the lack of treatment post service and disregarded the Veteran's reported, though not documented, history of hip pain. During the May 2021 VA examination, the Veteran reported his in-service waterskiing injury to his hip in 1967 that had worsened since its onset. The examiner opined that the Veteran's left hip disability was less likely than not incurred or caused during his active-duty service, as the Veteran's service treatment records did not contain complaints of treatment for a left hip disability. The examiner added that the cause of osteoarthritis of the hip are not known, adding that factors that may contribute include joint injury, increasing age, and being overweight. In addition, the examiner noted that osteoarthritis can sometimes be caused by other factors, noting that the joints may not have formed properly and there may be genetic (inherited) defects in the cartilage, or the Veteran may be putting extra stress on their joints, either by being overweight or through activities that involve the hip. In October 2021, the May 2021 VA examiner provided an additional addendum opinion, noting that there was still a lack of evidence supporting that the injury occurred during his active-duty service. The examiners seem to use the fact that there are no contemporaneous treatment records to deny the Veteran's claim, however the Board notes that the Veteran has been found to be a credible witness on his own behalf. The Board notes that the examiners did not adequately consider the Veteran's lay statements of the in-service injury and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence, and can alternatively establish a relationship between the current disability and injury in service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the competent evidence of record both for and against the claim is at least in equipoise. Furthermore, arthritis is considered a chronic disease under 38 C.F.R. §§ 3.307, 3.309, and as such service connection for such disability may be presumed based on the continuity of symptoms and the Veteran's credible reports of the continuity of those symptoms. Accordingly, under these circumstances, and granting the Veteran the benefit of the doubt in this matter, the Board finds that service connection for arthritis in the left hip is warranted. 2. Entitlement to service connection for migraine headaches The Veteran and his representative claim that he is entitled to service connection for a chronic migraine headache disability which had its onset in service. Specifically, the Veteran claimed that his in-service diagnosis of sinusitis was when he began experiencing headaches. The Board notes that a treatment records from 1983 diagnosed the Veteran with migraine headaches; additionally VA examinations from March 2020 and May 2021 also diagnosed the Veteran with migraine headaches. Accordingly, the first element for establishing service connection has been met. With respect to the second element, the Board notes that the Veteran's service-treatment records are silent for complaints or a diagnosis relating to migraine headaches; however, there were noted sinus issues during the Veteran's service in October 1965 and August 1967. The Veteran provided testimony in a Board hearing in December 2019 and explained that his in-service symptoms were misdiagnosed as sinus issues, and that in the 1970s the disability was recharacterized as a migraine headaches disability and persists to this day. The information that was provided by the Veteran is not contradicted by any evidence of record; in fact, the September 2020 and October 2020 medical opinions provided by the March 2020 VA examiner, while providing a negative opinion, noted that the Veteran was considered a creditable source for his service history. The Board agrees with this portion of the opinion and finds that the Veteran is deemed to be credible in his assertions with regards to the in-service history. Therefore, the second element for establishing service connection has been met. As to the final element of a service connection claim, the nexus between the Veteran's migraine disability and the in-service sinus issues, the evidence is mixed. At the December 2019 Board hearing, the Veteran explained that he had issues with headaches since his service, which were misdiagnosed as sinus issues, and that his headaches persist to this day. The Veteran is considered competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran is not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had headaches for years since he was in active service are both competent and credible, his statements alone are not sufficient to medically attribute his current disability to his time in-service. Two VA examinations were conducted, in March 2020 and May 2021, after which the March 2020 VA examiner provided additional nexus opinions in September 2020 and October 2020, and the May 2021 VA examiner provided an additional addendum opinion in October 2021, respectively. In March 2020, the Board remanded this claim to afford the Veteran a VA examination. During the March 2020 VA examination, the Veteran reported his in-service noted sinus complaints were recharacterized in the early-1970s as a vascular migraine disability. The examiner noted that the Veteran's separation examination in October 1969 was silent of complaints of migraine headaches, and while there was a letter from the Veteran stating the headaches disability originated during service, there were no objective records supporting the claim. The examiner added that, while there is a diagnosis of a current migraine headache disability, the Veteran left service more than 50 years ago and there that was no migraine headache diagnosis of record until June 2018, therefore a nexus had not been established. In September 2020 and October 2020, the March 2020 VA examiner provided additional addendum opinions, noting that, while the Veteran is considered a creditable source for his service history, there was still a lack of evidence supporting that the disability originated during his active-duty service, as the Veteran is not considered competent to diagnose a migraine headache disability dating back to his service. In May 2021, the Board remanded the claim to obtain a new addendum opinion, as the examiner's opinion relied on an inadequate rationale, as there are treatment records for his long-standing migraine headaches dating back to 1983, therefore the disability did not originate in June 2018. During the May 2021 VA examination, the Veteran reported his original migraine headaches diagnosis in 1974, which has worsened since its onset. The examiner opined that the Veteran's migraine headache disability was less likely than not incurred or caused during his active-duty service, as the Veteran's service treatment records did not contain complaints of treatment for a migraine headaches disability. The examiner added that the cause for the Veteran's headache disability is unknown. The examiner also noted that, although the Veteran's testimony from December 2019 indicates that the migraine headaches were misdiagnosed as sinusitis, there is no evidence to suggest a misdiagnosis during service. In October 2021, the May 2021 VA examiner provided an additional addendum opinion, noting that there was still a lack of evidence supporting that the migraine headaches originated during the Veteran's service. The examiners seem to use the fact that there are no contemporaneous treatment records to deny the Veteran's claim, however the Board notes that the Veteran has been found to be a credible witness on his own behalf. The Board notes that the examiners did not adequately consider the Veteran's lay statements of the in-service injury and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence, and can alternatively establish a relationship between the current disability and injury in service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the competent evidence of record for and against this claim is also at least in equipoise. Furthermore, migraine headaches are considered a chronic disease of the nervous system under 38 C.F.R. §§ 3.307, 3.309, and as such service connection for such disability may be presumed based on the continuity of symptoms and the Veteran's credible reports of the continuity of those symptoms. Accordingly, under these circumstances, and granting the Veteran the benefit of the doubt in this matter, the Board finds that service connection for migraine headaches is also warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.