Citation Nr: 21076152 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-52 395 DATE: December 22, 2021 ORDER Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The evidence is at least relative equipoise as to whether the Veteran's current migraine headaches had their onset in service. CONCLUSION OF LAW The criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from April 2008 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s rating decisions issued in June 2016. The Board previously remanded the issues for further development in April 2019. The case has now been returned to the Board for appellate review. 1. Service connection for migraine headaches Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 U.S.C. § 1110; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A July 2010 VA examination report confirms a diagnosis of migraine headaches. Therefore, the first element of service connection, a current disability, has been met. There is also evidence of headaches in service and evidence of continuous symptoms in the years since service which indicates that the current tension headaches were incurred in service. For example, service treatment records from April 2008 document that the Veteran reported experiencing a headache. Service treatment records from June 2012 document that the Veteran hit his head against a door stopper, causing a laceration to his forehead. The Veteran contends that he developed headaches during service. Specifically, he described the headaches during service as extreme pressure at the sinus area of his face with sensitivity to light and sound. He denied receiving any treatment for the condition during service. See October 2017 VA Form 9. He further reported that his headaches have continued following separation from service. Most recently, a May 2016 VA treatment record reports that he has been getting headaches in the left, temporal/parietal area. He reported that headaches last for a couple of hours and started to notice them since 4 to 5 years ago. He further stated that within the past 6 months prior to the visit, headaches had increased in frequency with pain that felt like a constant sharp numbness. He was given sumatriptan. During the December 2019 VA examination, the Veteran reported having occasional left-sided occipital headaches with twitching in his left eye. He described his headaches as constant dull pain. He stated he had episodes of headaches once a week, lasting 45 minutes to a couple of hours. His headaches are aggravated by bright lights and loud noise. He reported that he works as an electrician and stated that he did not miss work due to headaches because he was able to "power through it." The Veteran is competent to report headaches in service and continuous headaches in the years since service. There is nothing to explicitly contradict these reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous headaches in the years since service are credible. The clinician who conducted the December 2019 VA examination opined that the Veteran's headaches were not likely related to service because there were no complaints noted in the service treatment records until 2016, which is three years after separation. The Board affords more probative weight to the Veteran's lay statement on in-service onset and continued occurrence of headaches since separation. As found above, the Veteran's statement concerning headaches are competent and credible. The Board finds his explanation as to why he did not seek medical treatment for headaches while in service plausible because it is consistent with his post-service behavior that he continues to work even during episodes of headaches presently, just as he reported doing so while in service. The December 2019 opinion is not adequate because it failed to consider the Veteran's lay statement concerning onset in service and report of continued symptoms after separation. In sum, the evidence reflects that the Veteran experienced headaches in service and that there have been continuous headaches in the years since service. He has also been diagnosed as having migraine headaches. There is no adequate and probative medical opinion contrary to a conclusion that the current migraine headaches had their onset in service. In light of the above, the Board finds entitlement to service connection for the currently diagnosed migraine headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a low back disability 2. Service connection for a right knee disability A December 2019 VA examination found that the Veteran has a current diagnosis of degenerative arthritis of the spine, radiculopathy of left sciatic nerve, and intervertebral disc syndrome (IVDS) as well as right knee strain and bone island in the right femoral condyle and proximal tibia. In his April 2017 notice of disagreement, the Veteran reported he hurt his back before his deployment in 2012. He further stated that he did not seek medical treatment at that time because he was told by his superior that he would be off the deployment if he went to the clinic. In an October 2017 VA Form 9, the Veteran stated during the deployment in 2012, he would feel sharp, and at times intolerable, pain radiating from his knee area of the right leg into his lower back. He stated that he did his best to ignore the pain and worked while in deployment. He reported that pain comes back at a more frequent rate. The Veteran is competent to report subjective pain he experienced while in service, and he is also competent to report that he had an incident that resulted in back pain. However, no medical opinion of record has considered the in-service incident concerning the back or onset of pain in the back and right knee while in service. The December 2019 examiner provided a nexus opinion for these disabilities, but he failed to consider the reported back injury and onset of pain in service. As such, the Board finds that the December 2019 opinion is inadequate for rating purpose. Upon remand, the agency of original jurisdiction (AOJ) must obtain an addendum opinion concerning etiology of a low back disability and right knee disability with consideration for the Veteran's lay statement. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's low back disability is at least as likely as not related to service, to include the reported in-service incident resulting in back pain prior to deployment in 2012 and the reported occurrence of pain during the deployment in 2012. All the diagnosed back disabilities must be considered when rendering the opinion. A complete rationale for any medical opinion rendered must be provided. The examiner may contact the Veteran via telephone if the examiner wishes to inquire further into the Veteran's claimed in-service injuries. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right knee disability is at least as likely as not related to service, to include the reported occurrence of pain during the deployment in 2012. All the diagnosed right knee disabilities must be considered when rendering the opinion. The examiner must provide rationales to all opinions expressed. A complete rationale for any medical opinion rendered must be provided. The examiner may contact the Veteran via telephone if the examiner wishes to inquire further into the Veteran's claimed in-service injuries. MARTHA L. TIERNEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.