Citation Nr: 21076225 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 14-32 205 DATE: December 22, 2021 ORDER Service connection for migraine headaches is granted. REMANDED Entitlement to service connection for shin splints, leg pain, and ankle swelling is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's current headache disorder had its onset in service or was otherwise proximately due to service-connected posttraumatic stress disorder (PTSD) to include traumatic brain injury (TBI). CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to September 2006. 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 November 2010. The Board previously remanded the issues for further development in April 2018 and March 2021. The case has now been returned to the Board for appellate review. 1. Entitlement to service connection for migraine headaches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The record reflects that the Veteran has a current diagnosis of headaches, as reflected in a September 2010 and May 2021 VA examination. A review of the service treatment records indicates that the Veteran had a motor vehicle accident (MVA) in November 2003 and was assessed with acute contusion to the left forearm. No complaints of headaches were noted then or elsewhere in the service records. A July 2007 post-service VA treatment record indicates that the Veteran underwent a traumatic brain injury (TBI screening), where he reported having headaches after the November 2003 MVA and he further indicated that he had or previously had these symptoms in the last week. He also reported having symptoms of confusion, balance issues, dizziness, and sensitivity to light. At a followup visit subsequent to the TBI screening, the Veteran reported that he did not have loss of consciousness after the MVA but had headaches. He stated that he would get headaches every other day sometimes and severity varied from mild to severe. The clinician recommended a followup for headaches with his primary care physician. In September 2010, the Veteran underwent a VA examination to evaluate his headache disorder. The VA examiner provided a diagnosis for headaches. The Veteran reported that he had headaches for the past 2 years with average 3 times per week, each episode lasing for one minute. The Veteran reported that he was able to go to work but required medication when he had episodes of headaches. He reported that he was not receiving any treatment for this condition. He also reported that he did not experience any overall functional impairment from headaches. In an April 2011 statement, the Veteran reported that he had headaches at least 5 times per week with severity from mild to severe until he took medications. In an August 2018 statement, both the Veteran and his spouse reported that the Veteran had 2 or 3 episodes of headaches per week, each lasting for several hours accompanied with nausea, vomiting, sensitivity to sound, and photophobia. The Veteran claimed that his headaches were due to hypertension and hearing impairment. A November 2018 VA examination reflects a diagnosis of headaches. The Veteran reported that he had had headaches for over 10 years and had 3 or 4 episodes of headache per week. The November 2018 examiner opined that the Veteran's headaches were at least as likely as not proximately due to or the result of his service-connected tinnitus. The rationale was that tinnitus could commonly cause anxiety and stress that would result in tension headaches in the case of the Veteran. The examiner, however, opined that his headaches were not due to hypertension because headaches usually occur with uncontrolled episodes of hypertension or malignant hypertension, which was not applicable to the Veteran's case. In a May 2021, the Veteran underwent another VA examination to assess the etiology of his headaches. The Veteran reported that he had acute, frequent, throbbing headaches with sensitivity to light, distorted vision or seeing flashes of light, dizziness, lightheadedness, malaise, aura, sensitivity to sound, nausea, irritability, nasal congestion, and scalp tenderness. The VA examiner opined that the Veteran's headaches were at least as likely as not proximately due to or the result of his service-connected posttraumatic stress disorder (PTSD) to include TBI. The rationale was that the Veteran's headaches were secondary headaches, as the result of another condition, in this case, the head injury. The examiner cited an excerpt from a journal article which explained chronic post-traumatic headache (CPTHA) and post-traumatic headache (PTHA). The PTHA is defined as a secondary headache that develops within 7 days after head trauma, and PTHA is regarded chronic (CPTHA) when it continues for more than 2 months (6 months) after incurrence of the injury. In August 2021, the AOJ obtained another VA medical opinion from a different examiner. The August 2021 examiner provided a negative opinion for a nexus between the headaches and TBI or PTSD. The rationale was that a thorough review of medical literature failed to demonstrate a causal relationship between TBI/PTSD and headaches. Further, the examiner stated that the Veteran's acute headaches at the time of injury was to be expected and a diagnosis of CPTHA was not met. The rationale was that the 2006 records showed no complaint of chronic headaches and at the 2010 VA examination, the Veteran indicated his headaches were due to kidney stones and the onset was two years prior or 2008. Based on the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has had episodes of headaches subsequent to the in-service MVA and continued since then to the present. Here, as reflected in the July 2007 TBI screening that was conducted within one year since separation, the Veteran reported he had headaches since his MVA and had them as recently as one week prior to the screening. It appears that his headaches lasted for one minute and did not cause any impairment as of 2010; he also reported that he had not sought treatment for his headaches at that time The Board notes that the Veteran is competent to report headaches in service and continuous headaches in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 and probative. The Board also acknowledges that the May 2021 and August 2021 examiners disagree on whether the Veteran's headaches were related to his TBI. Here, the Board affords more probative weight to the May 2021 opinion because the August 2021 opinion did not adequate address the Veteran's 2007 complaints of headaches. Accordingly, in resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for migraine headaches is warranted. REASONS FOR REMAND 1. Entitlement to service connection for shin splints, leg pain, and ankle swelling The Veteran contends that he has shin splints, leg pain, and ankle swelling as a result of the running, walking, and marching he did while in service. See April 2011 Veteran's Statement. A review of the service treatment records indicates that the Veteran has a history of fracture of left tibia and fibula in 1993, as noted under hospitalizations/surgeries in the Adult Preventive and Chronic Care Flowsheet. The Veteran's complaint of pain in the bilateral legs started in September 2005. In January 2006, the Veteran reported that he had been active in service and his legs were hurting. A January 2006 X-ray showed osteochondroma from the posteromedial aspect of the proximal fibula in the right leg, while it showed normal left leg. It appears that his doctor recommended holding off any activity such as running. Later, the Veteran reported that limiting running helped to alleviate the pain in July 2006. In September 2006, the Veteran was diagnosed with bilateral shin splints. At a September 2010 examination, the Veteran reported that he had shin splints and lower leg pain since August 2010. The Veteran further stated he worked in the postal service, where he was on his feet mostly, and had developed the problem of leg pain recently and was told by the podiatrist that it might be due to his flat feet. In light of this, the examiner did not find any support in favor of the Veteran's claim. Moreover, the September 2010 examiner did not find any pathology to render a diagnosis for ankle swelling. A February 2013 VA treatment record reflects that the Veteran was employed with the U.S. postal service as a mail carrier for the past 5 years. In April 2018, the Board denied the Veteran's claim for service connection for pes planus. A May 2021 examiner opined that shin splints, leg pain, and ankle swelling at least as likely as not had their onset during service because the leg pain was caused by increased activity, overuse, and prolonged standing, walking, and running. The AOJ obtained another opinion from a different examiner in August 2021. The August 2021 examiner provided a negative nexus opinion because this examiner found that the in-service episode of shin splints was acute only and that there was no evidence of chronicity of care or a diagnosis in the post-service evidence. In spite of the RO's attempts at obtaining an adequate VA medical opinion, the Board finds that both May 2021 and August 2021 opinions are not adequate for rating purposes. In that regard, the May 2021 examiner did not consider the impact of the Veteran's post-service work as a mail carrier, which more likely than not involved prolonged walking and standing as well as increased activity. Moreover, the August 2021 examiner did not provide a sufficient rationale in light of the in-service treatment records for leg pain as noted above. Accordingly, the Board finds that a new VA medical opinion must be procured. The VA examiner must consider several material factors such as whether the Veteran's shin splints became chronic in service, and the in-service diagnosis of osteochondroma of the right leg in relation to the leg pain, as well as the impact of the Veteran's post-service work as a mail carrier, must be obtained. The matter is REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner regarding whether the Veteran's shin splints, leg pain, or ankle swelling is at least as likely as not (i.e., 50 percent probability or greater) related to service, to include an in-service episode of shin splints or a finding of osteochondroma. The examiner must review the entire claims file, to include this Board remand before rendering any opinion. In rendering the above opinion, the examiner should consider and discuss whether the Veteran's shin splints became chronic in service. The examiner should also consider and discuss the in-service diagnosis of osteochondroma of the right leg in relation to the leg pain, as well as the impact of the Veteran's post-service work as a mail carrier. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. PAUL E. METZNER 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.