Citation Nr: 21077128 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-17 937 DATE: December 28, 2021 ORDER Service connection for migraine headaches is granted. REMANDED Service connection for right hand arthritis. Service connection for allergies. FINDING OF FACT The Veteran's migraine headaches are proximately due to his service-connected tinnitus, service-connected obstructive sleep apnea, and service-connected anxiety disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from August 1984 to August 1992. This appeal comes before the Board of Veterans' Appeals (Board) from March 2017 and July 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, in pertinent part, the Board remanded claims of service connection for a psychiatric disorder, right hand disorder, and allergies for additional development. Thereafter, in an April 2021 rating decision, the RO granted service connection for unspecified anxiety disorder effective July 22, 2016. As service connection for a psychiatric disorder has been granted in full, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In July 2021, the RO obtained new medical opinions in regard to the claims on appeal subsequent to the most recent supplemental statement of the case (SSOC) issued in April 2021. The Veteran's representative waived initial RO consideration of the additional evidence in a September 2021 correspondence. See 38 C.F.R. § 20.1305(c). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. Service connection for migraine headaches. The Veteran contends that his migraine headaches are related to service, to include as secondary to his service-connected tinnitus, service-connected obstructive sleep apnea (OSA) and/or service-connected anxiety disorder. As discussed below, the Board finds that secondary service connected is warranted. Thus, the discussion below will focus solely on a discussion of entitlement to secondary service connection. The Veteran has competently reported experiencing headaches and his reported symptoms have been characterized as migraine headaches. See, e.g. July 2021 VA medical opinion. Additionally, service connection has been granted for tinnitus, OSA and an anxiety disorder. Thus, the first two elements for establishing secondary service connection have been satisfied. The remaining question before the Board is whether the Veteran's migraine headaches are caused or aggravated by his service-connected tinnitus, OSA, and/or anxiety disorder. The Veteran submitted a January 2019 medical opinion completed by a private physician, Dr. M.B. Based on a review of the record, an interview with the Veteran, and supportive medical literature, the private examiner concluded that it is as likely as not that the Veteran's service-connected tinnitus, anxiety disorder and obstructive sleep apnea cause and permanently aggravate his headaches. Dr. M.B. noted that the Veteran reported that he experiences headaches after tinnitus and after poor sleep. Dr. M.B. noted that VA examinations and treatment records reflect that the Veteran's poor sleep is due to his anxiety disorder and OSA. Dr. M.B. explained that patients with mental health conditions are more likely to develop headaches because pain and mood are regulated by the same part of the brain. She stated that it is well established that mental disorders cause and aggravate headaches and cited a medical journal article on the relationship between mood and anxiety disorders and chronic headaches. Dr. M.B. noted the Veteran's diagnosis of OSA and explained that OSA is a major cause of headaches because headaches occur in direct relationship to the number of REM sleep periods that one has during the night. Dr. M.B. cited a medical journal article pertaining to sleep apnea headaches. A VA medical opinion was obtained in March 2021. However, the opinion only states that the Veteran's migraine headaches did not clearly and unmistakably pre-exist service and does not provide an opinion as to etiology. In this case the record reflects a negative July 2021 VA opinion. The examiner explained the physiology of migraine headaches and noted that the most common forms of migraines are complex genetic disorders, with multiple genes at different genomic sites act in tandem with environmental factors to confer both the susceptibility to and the characteristics of the disease in affected individuals. The examiner also noted the most common triggers of migraines which included emotional stress and sleep disturbances. The examiner stated that these factors can trigger a headache but do not permanently change the pathophysiology or cause migraine. The examiner stated that no medical journal or literature include tinnitus as related to or causing permanent change in migraine pathology i.e. aggravation. The VA examiner concluded that it is less likely as not that the Veteran's migraine headaches are proximately due to or aggravated by service-connected tinnitus. Notably, the July 2021 VA medical opinion only addresses whether the Veteran's migraine headaches have been caused or permanently aggravated by his service-connected tinnitus. The opinion did not address whether the Veteran's migraine headaches were proximately due to or aggravated by his service-connected OSA or service-connected anxiety disorder. The Veteran provided an adequate positive January 2019 etiology opinion finding the Veteran's migraine headaches were proximately due to his service-connected tinnitus, service-connected OSA and service-connected anxiety disorder. The January 2019 etiology opinion presents an adequate rationale that is at least as persuasive as the VA medical opinion to the contrary. Accordingly, after resolving all doubt in favor of the Veteran, service connection for a migraine headache disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for right hand arthritis. The Veteran contends that his right-hand arthritis is caused by or related to active duty service. Specifically, he asserts that his current right-hand arthritis is due to an in-service injury in 1986 where he fell on his right hand. See December 2019 VA examination. The Veteran has also asserted that he had his right middle finger stepped on during service. See March 2019 VA treatment note. The Veteran service treatment records (STRs) show that the Veteran was treated for hand cramping and questionable flexor tendonitis of the bilateral hands during active service in September 1984. However, the Veteran was not diagnosed with right hand arthritis during active service and did not report symptoms of right hand arthritis during his May 1988 reenlistment examination or in the July 1992 Report of Medical History as part of his separation examination. The July 1992 separation examination reveals that the Veteran's upper extremities were evaluated as clinically normal. The first medical evidence of the Veteran seeking treatment for symptoms of right-hand arthritis and a diagnosis of right hand arthritis was in November 2016, approximately 24 years after discharge from active service. The Veteran was afforded a VA in December 2019. The Veteran reported injuring falling on his right hand during physical fitness activity around 1986. He also reported being treated with a splint and placed on temporary light duty. He further reported experiencing intermittent swelling of the right hand with some activities and some decreased range of motion since the injury. The examiner reported a diagnosis of right hand osteoarthritis in June 2017. The examiner found that it is less likely than not that the Veteran's right hand arthritis is related to an in-service injury, event, or disease. The examiner explained that current medical literature supports no causation of osteoarthritis due to muscle cramping or tendinitis. Pursuant to the June 2021 Board remand, an addendum VA opinion was obtained in July 2021. The VA examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran has a current diagnosis of right-hand arthritis. The examiner explained that arthritis that has progressed to the point that there are x-ray findings is due to chronic inflammation over several years. The examiner stated that a history of persistent pain since 2013 is consistent with that diagnosis. The examiner explained that long periods of time with silence of symptoms is not expected. The examiner noted that, prior to 2013, there is no documented ongoing complaints of right-hand pain, swelling or loss of range of motion. The examiner also noted that right hand arthritis symptoms are not shown by the Veteran's STRs or during the first year after separation from service. The Board finds that a remand is necessary to obtain another medical opinion in regard to this claim. 2. Entitlement to service connection for allergies is remanded. The Veteran was afforded an examination in regard to this claim in December 2019. He reported experiencing allergy symptoms beginning around 1990 while stationed in North Carolina. He denied experiencing sinus symptoms, but reported he has been prescribed antibiotics as well. The examiner noted that the Veteran was evaluated by ear, nose, and throat specialists in 2016 and in 2017. The Veteran's VA treatment records indicate that he reported receiving treatment from a private allergist at Lewis Gale for his allergic rhinitis. See VA treatment records dated in June 2017, October 2017, November 2017, September 2019. The record does not show that any correspondence was sent to the Veteran requesting authorization to obtain the identified private treatment records. Therefore, further development is necessary to attempt to associate additional relevant private medical treatment records with the file. Thereafter, another medical opinion should be obtained in regard to this claim. These claims are REMANDED for the following actions: 1. Afford the Veteran an opportunity to submit or identify any outstanding relevant treatment records to specifically include from private allergist Lewis Gale. Obtain any identified records with the use of the Veteran's authorization as necessary. If such records are unavailable, the file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. After completing the records development indicated above, obtain an opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's right hand osteoarthritis. The entire claims file should be reviewed by the examiner. The examiner should then state whether it is as at least as likely as not that the right hand osteoarthritis had its onset during service, within one year of discharge, or is otherwise related to service, to include falling on the right hand and hand cramping and questionable flexor tendonitis. 3. Also, obtain an opinion from an appropriate VA examiner to determine the nature and etiology of the Veteran's allergies. The entire claims file should be reviewed by the examiner. The examiner should then state whether it is as at least as likely as not that the allergies had their onset during service, or are otherwise related to service, to include the Veteran's report of experiencing allergy symptoms around 1990 while stationed in North Carolina. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.