Citation Nr: 21009812 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-24 325 DATE: February 23, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for migraine headaches is denied. The application to reopen a claim for service connection for a bilateral knee disability as secondary to pes planus is granted. Entitlement to service connection for a right knee disability as secondary to pes planus is denied. REMANDED Entitlement to service connection for a left knee disability as secondary to pes planus is remanded. Entitlement to service connection for a stomach disability, to include bleeding ulcers, is remanded. Entitlement to service connection for a respiratory disorder, to include COPD, is remanded. FINDINGS OF FACT 1. The Veteran’s migraine headaches are manifested by characteristic prostrating attacks more frequently than once per month; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are not shown. 2. A December 2008 Board decision denied the Veteran’s claim for service connection for a bilateral knee disability; the Veteran did not file a notice of appeal within 120 days of notice of the decision. 3. Evidence received since the December 2008 Board decision is not cumulative or redundant with regard to the claimed bilateral knee disability as secondary to pes planus, and raises a reasonable possibility of substantiating the claim. 4. The Veteran’s right knee osteoarthritis is not shown to be proximately due to or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2019). 2. The December 2008 Board decision that denied service connection for a bilateral knee disability is final. 38 U.S.C. § 7266 (2012); 38 C.F.R. §§ 20.1100 (2019). 3. New and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for a bilateral knee disability as secondary to pes planus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 4. The criteria for entitlement to service connection for a right knee disability as secondary to pes planus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1997 to February 2000. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a May 2013 rating decision by the Regional Office (RO). An April 2019 Board decision remanded the claims for further development. These matters are now returned to the Board for further appellate review. 1. Entitlement to an evaluation in excess of 30 percent for migraine headaches The Veteran’s migraine headaches are currently assigned a 30 percent rating under Diagnostic Code 8100, effective March 29, 2008 (and 10 percent prior). The Veteran seeks an increased rating. See Form 21-4138, August 2011. The Veteran’s headaches are currently rated under Diagnostic Code 8100, which provides a noncompensable rating for characteristic prostrating attacks averaging less than one in two months over the last several months; a 10 percent rating for characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating for characteristic prostrating attacks occurring on an average of once a month; and 50 percent for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a (2019). The rating criteria do not define “prostrating.” “Prostration” is a medical term defined, for example, as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary (32d ed. 2012). The Veteran was afforded VA examinations in May 2012 and August 2019. The May 2012 VA examination report shows the Veteran reported migraine headache symptoms of constant head pain, nausea, and seeing spots of light. He reported typical head pain lasting more than two days. The examiner noted that characteristic prostrating attacks of migraine headache pain occur more frequently than once per month. The examiner noted the Veteran does not have very frequent and prolonged episodes of prostrating attacks of non-migraine headaches pain. The examiner opined that the Veteran’s migraine headaches affect his work functioning when he is outside in the sun on 12-hour shifts because his headaches can hurt so bad it is difficult to work. The August 2019 VA examination report shows the Veteran reported migraine headache symptoms of pulsating or throbbing head pain, pain on both sides of his head, nausea, vomiting, and sensitivity to light and sound. The duration of his head pain was typically more than two days. The examiner noted the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headaches pain, and no very prostrating and longed attacks characteristic of severe economic inadaptability. The examiner noted that the Veteran is unable to perform physical labor during severe migraine attacks. The Board has also carefully reviewed all of the other medical evidence of record, including the Veteran’s VA treatment records from the period on appeal, as well as his records from the Social Security Administration (SSA). A June 2012 VA treatment record shows he presented to the emergency department with chest pain, vomiting, and reporting moments of incoherence in the last 24 hours. He was diagnosed with chronic headaches/cluster headaches versus complex migraine. See Records, received June 2012 at p.7-8 of 55. Regarding his employment, VA treatment records and SSA records show he reported he was laid off from a security job in 2010 with eight others, and he indicated difficulty finding employment due to his back condition. See Records, received April 2013 at p.182. See SSA records at p.64-65 of 151. Another SSA record shows he reported he was starting a new security job in March 2012. See SSA at p.7 of 194. A June 2012 record shows he reported he worked a 16-hour shift. See Records, received June 2012 at p.1 of 55. A December 2013 VA treatment record shows the Veteran reported he was working 32 hours per week as a security guard. See CAPRI, received May 2015 at p.151 of 208. A February 2017 VA treatment record shows he reported working eight-hour shifts in evenings. See CAPRI, received May 2019 at p.217 of 393. An October 2017 VA treatment record shows he reported working fulltime night shifts at a detention center. See CAPRI, received May 2019 at p.100 of 393. A May 2018 record shows he reported working fulltime. See CAPRI, received May 2019 at p.74 of 393. A September 2018 VA treatment record shows the Veteran was working as a school janitor, and he reported he lost his last job due to a physical altercation. See CAPRI, received May 2019 at p.31 of 393. He reports that he possesses a criminal justice degree, and a master’s degree. See CAPRI, received May 2015 at p.190 of 208, and received May 2019 at p.228 of 393. Having considered all the evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran’s migraine headache symptoms do not meet or approximate the criteria for the next higher 50 percent schedular rating. The Board finds that the Veteran is not shown to experience very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The May 2012 VA examination report shows the Veteran was not experiencing symptoms of very frequent and prolonged episodes of characteristic prostrating attacks of migraine headache pain. The August 2019 VA examination report shows he was not experiencing any characteristic prostrating attacks of migraine or non-migraine headaches. While the Board acknowledges he had hospital treatment in June 2012 for his migraine headaches, the Board finds that this is not sufficient to “very frequent” completely prostrating attacks of migraine pain. Furthermore, severe economic inadaptability is not shown. While the Board acknowledges the Veteran appears to have had a few periods of unemployment, by his own self-report, these were due to being laid off with several others, and due to getting into a physical altercation. Severe economic inadaptability due to his migraine headaches is not shown at any time during the period on appeal. Therefore, in summary, the Board concludes that entitlement to a rating in excess of 30 percent for migraine headaches is not warranted; as the preponderance of the evidence if against the claim, the benefit of the doubt rule is not for application. In this case, the Veteran has not contended, and the evidence does not suggest, that he has experienced symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (Board is not obligated to analyze whether referral for extraschedular consideration is warranted if 38 C.F.R. § 3.321(b)(1) is neither specifically sought by the claimant nor reasonably raised by the facts found by the Board). 2. Whether new and material evidence has been received sufficient to reopen a claim for service connection for a bilateral knee disability as secondary to pes planus The Veteran requests reopening of a claim for service connection for a bilateral knee disability as secondary to pes planus. For the reasons explained below, the Board finds that new and material evidence has been received, and the claim is reopened. A December 2008 Board decision denied the Veteran’s claim for service connection for a bilateral knee disability on the basis that there was no evidence of knee problems in service, and citing to a March 2008 VA examiner’s opinion that the Veteran’s bilateral knee patellar tendonitis was less likely than not caused by his active service. The Veteran did not file a notice of appeal with the Court of Appeals for Veterans Claims within 120 days of the Board decision, and the Board decision became final. See 38 U.S.C. § 7266 (2012); 38 C.F.R. § 20.1100 (2019). In August 2011, the Veteran filed a request to reopen the claim and asserted that his bilateral knee condition was secondary to his service-connected pes planus. A May 2013 rating decision appears to have reopened the claim, but denied service connection on the merits. The Veteran appealed herein. The Board acknowledges that the May 2013 rating decision reopened the claim (and denied it on the merits). However, regardless of the decision of the RO as to whether to reopen the previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. At the time of the last final denial by the Board in December 2008, the evidence of record included the Veteran’s service treatment records, which show no treatment for knee problems. Also of record were his post-service VA treatment records, which show his first record of complaint was in September 2001. See Records, received February 2008 at p.109. Also of record was a March 2008 VA examination report in which the VA examiner opined it is less likely than not that the Veteran’s bilateral patellar tendonitis is related to his active service. The Board notes that the Veteran filed his original claim for service connection on a direct basis, whereas in his request to reopen the claim, he asserts that his bilateral knee condition is secondary to his service-connected pes planus. Since the time of the last final denial, new evidence associated with the claims file includes May 2012, February 2013, and August 2019 VA examination reports addressing the etiology of the Veteran’s bilateral knee condition. The Board finds that the most recent two VA examination reports in particular are material because they relate to an unestablished fact necessary to substantiate the claim, i.e., whether the Veteran’s bilateral knee condition was caused or aggravated by his service-connected pes planus. Therefore, as evidence has been received that is not only new but also material, the Board will grant the request to reopen the claim. 3. Entitlement to service connection for a right knee disability as secondary to pes planus The Veteran asserts that he has a right knee disability that was caused or aggravated by his service-connected pes planus. The Veteran’s service treatment records show treatment for bilateral pes planus, but not any treatment for knee complaints. See, e.g., STR at p.89 of 143. His October 1999 separation report of medical history shows the Veteran denied experiencing painful joints, any bone or joint deformity, or trick or locked knee. See STR at p.130 and 133 of 143. The first medical record of complaint of knee pain is a September 2001 VA treatment record. See Records, received June 2003 at p.21 of 25, and received February 2008 at p.109. A November 2001 record shows he reported chronic knee pain and pes planus pain. See id. at p.14. A February 2002 VA orthopedics record shows diagnosed probable Osgood-Schlatter’s disease. See Records, received February 2008 at p.101 of 157. An April 2008 VA examination report shows x-rays of the knees were normal, and bilateral patellar tendonitis was diagnosed. The examiner did not, however, provide an opinion as to whether the Veteran’s knee conditions are secondary to pes planus. A May 2012 VA examination report shows the examiner noted that examination of both knees revealed no patellar abnormality or bumps consistent with Osgood-Schlatter’s disease. Examination of the right knee revealed grinding. X-rays were normal bilaterally. The examiner diagnosed right patellofemoral syndrome, and opined that the Veteran’s left knee was essentially normal. The examiner noted he could not provide an etiological opinion without resorting to mere speculation. A February 2013 VA medical opinion shows the examiner reviewed the claims file, and noted that the May 2012 VA examination report shows diagnosed right patellofemoral syndrome, but that the left knee was found to be normal. The examiner opined it is less likely than not that the Veteran’s right knee condition was caused by his pes planus. The examiner reasoned that based on a review of the most current clinical examination and medical literature, there is no causal association between the claimed condition and the Veteran’s flat feet, that there is no physiological basis for a relationship, and that flat feet do not cause patellofemoral syndrome. The August 2019 examiner noted that x-rays revealed arthritis of the knees bilaterally, and diagnosed bilateral knee osteoarthritis. See Examination report, June 2019 (x-rays). The Veteran reported his knees ache with running and sometimes give out, and that he was told he had arthritis around 2017. The examiner opined (see separate opinion reports for each knee) it is less likely than not that the Veteran’s bilateral knee osteoarthritis was aggravated by his pes planus beyond the natural progress of the disease. The examiner reasoned that the service treatment records did not demonstrate worsening of the knee condition, there was not a chronological record of medical care since service, and medical literature does not show any causal relationship between pes planus and osteoarthritis of the knee. In light of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran’s right knee condition was caused or aggravated by his service-connected pes planus. There is no medical evidence of record tending to indicate any etiological relationship between the Veteran’s right knee condition and his pes planes. The February 2013 VA examiner opined the right knee condition was not caused by pes planus. The August 2019 VA examiner opined it was not aggravated beyond the natural progress of the disease due to his pes planus. The Board finds the February 2013 and August 2019 VA examiner opinions to be the most probative with regard to the etiology of the Veteran’s right knee condition. The opinions are uncontroverted by any of the medical evidence, and they gave adequate rationales for their opinions. To the extent the Veteran himself, as a lay person, opines that his right knee condition was caused by his service-connected pes planus, the Board finds that the Veteran’s opinion carries no probative weight because it is not supported by any rationale. In summary, the Board concludes that service connection for a right knee disability as secondary to service-connected pes planus is not warranted; as a preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability as secondary to pes planus The Veteran asserts he has a left knee disability that was caused or permanently aggravated by his service-connected pes planus. As noted above, a May 2012 VA examination report shows the Veteran’s left knee was found to be normal, including with normal x-rays. A February 2013 VA medical opinion addressed whether the Veteran’s right knee patellofemoral syndrome was caused by pes planus. An August 2019 VA examination report shows x-rays revealed bilateral knee osteoarthritis, and the examiner opined that the Veteran’s bilateral knee osteoarthritis was not aggravated by his pes planus. Thus, there is no medical opinion of record that addresses whether the Veteran’s left knee osteoarthritis was caused by his service-connected pes planus. Therefore, the claim should be remanded for a VA medical opinion to address whether the left knee osteoarthritis was caused by pes planus. In addition, because the left knee claim is being remanded for further development, clarification should be sought from the August 2019 VA examiner regarding a typographical error in the left knee aggravation opinion where it states “left” knee in Section II (question presented), but states “right knee” in Section VI. 2. Entitlement to service connection for a stomach disability, to include bleeding ulcers The Veteran claims he has a stomach disability, to include bleeding ulcers, due to his active service. The service treatment records include a January 1998 record of emergency care showing the Veteran reported abdominal pain, hematemesis, and melena. He tested positive for H. pylori infection, and was diagnosed with peptic ulcer disease. See STR at p.5 of 143; see also p.25 and 37. Two weeks later, a January 1998 record shows he followed up for peptic ulcer disease and reported he was feeling better, but was not taking his medications as directed. Two prescriptions were refilled (illegible), and he was prescribed a proton pump inhibitor Lansoprazole. See id. at p.125 of 143. Post-service, a November 2001 VA treatment record shows the Veteran was establishing primary care, and he reported experiencing chest pain and heartburn. He reported a history of peptic ulcer disease and that he was taking Zantac once or twice per week. Chest pain of unknown etiology was diagnosed. See Records, received June 2003 at p.14. Subsequent VA treatment records show he reported abdominal pain in August 2004, and vomiting and stomach pain in March 2007 after being prescribed doxycycline for a skin condition. An April 2007 VA gastroenterology record shows the Veteran was advised to stop NSAIDs and doxycycline. See Records, February 2008 at p.21 and 72. Most recently, the Veteran was afforded a July 2019 VA examination, and a separate July 2020 VA medical opinion was obtained. The July 2019 VA examiner opined that for the claimed bleeding ulcers, there was no diagnosis because there was no documentation on EGD of bleeding ulcers. No further opinion was provided. An upper GI series, however, revealed severe GERD. The July 2020 VA examiner opined that the Veteran does not have peptic ulcer disease because EGDs performed in 2011 and 2019 found gastritis, but no peptic ulcer disease. Regarding the Veteran’s diagnosed gastritis, the examiner opined it is not due to the Veteran’s active service because after the Veteran’s H. pylori infection was treated in service, his symptoms resolved, and no complaints were shown since service until 2011. The examiner also reasoned that no endoscopic examination was performed in service (to diagnose peptic ulcer disease). As shown above, however, the Veteran is shown to have complained of chest pain and heartburn in 2001, abdominal pain in 2004, and stomach pain and bleeding in 2007, and he was advised to discontinue NSAIDs at that time. It is inaccurate that the first post-service record of complaint was not until 2011. Also, the evidence indicates the Veteran has been taking NSAIDs, in service and post-service, for his service-connected back disability and migraine headaches. The examiner also failed to address the Veteran’s diagnosis as per the July 2019 upper GI series of severe GERD. Therefore, the Board finds this matter should be remanded for a new VA medical opinion to address whether the Veteran’s gastritis or GERD had its onset in service or is otherwise related to his active service, or whether it is caused or aggravated by NSAID use for his service-connected back disability and service-connected migraine headaches. 3. Entitlement to service connection for a respiratory disorder, to include COPD The Veteran also asserts he has a respiratory disorder that was caused by his active service. June 1998 and July 1998 service treatment records show the Veteran reported becoming dizzy or blacking out when running or marching, which was diagnosed as heat exhaustion and dehydration. See STRs at p.13 and 19 of 143. A September 1998 record shows he reported about seven instances of difficulty breathing when running, with numb lips, which was diagnosed as possible exertional dyspnea. See STR at p.15 of 143. November 1998 records show continued complaint of shortness of breath, a treadmill PFT was negative, and exertional dyspnea was diagnosed. See id. at p.29-30, 121-122, and 136. A March 1999 evaluation record shows the Veteran reported dizziness during PT and shortness of breath when running, which was believed to be deconditioning status post a 1996 motor vehicle accident (pre-service). See id. at p.92. The Board acknowledges that, prior to service, the Veteran suffered stab wounds in 1993 and incurred a left pneumothorax (25 percent) as a result. See, e.g., STR at p.142. This was noted on entry into service, and was noted as fully resolved. See STR at p.79 of 143. Therefore, with no respiratory condition having been noted on entry into service, the presumption of soundness applies. See 38 U.S.C. § 1111 (2012). Post-service, a November 2001 VA treatment record shows the Veteran reported chest pain and shortness of breath, and chest pain of unknown etiology was diagnosed. See Records, received February 2008 at p.103. He reported shortness of breath in a March 2002 statement in support of a then-pending claim. The Board is cognizant that an April 2002 VA chest x-ray showed no significant abnormality. See Record, received June 2003 at p.1 of 4. An August 2019 VA examination report shows the Veteran reported experiencing episodes of shortness of breath and coughing since service. His PFT results were considered normal, but no exercise capacity testing was performed. Curiously, the VA examiner noted that there was no record of any respiratory complaints in service, and no post-service complaints. The examiner opined the Veteran had no respiratory disease. As shown above, however, the Veteran clearly had several in-service complaints of shortness of breath and was diagnosed in service with exertional dyspnea, and he has documented post-service complaints in 2001 and 2002. He reported experiencing periods of shortness of the breath to the VA examiner, but no exercise testing was performed. Therefore, the Board finds that this claim should be remanded for a new VA examination, to include both a review of the service treatment records in 1998 and 1999 showing shortness of breath and exertional dyspnea, and to include exercise pulmonary function testing. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion based on a review of the entire claims file, to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee osteoarthritis was permanently aggravated by his service-connected pes planus. An examination is necessary if required by the examiner to form an opinion. Any opinion must be accompanied by a complete rationale. 2. Ask the same VA examiner who provided the August 2019 VA examination report and two medical opinions involving the Veteran’s claimed knee disabilities to clarify whether one of the two medical opinion documents intended to convey his opinion that the claimed left knee condition is less likely than not aggravated by pes planus. The opinion purporting to address whether the left knee condition was aggravated by pes planus includes opinion language states that the “right” knee was not aggravated by pes planus, which appears to be a typographical error. Please ask the VA examiner to provide clarification. See Compare Examination Report, Section II (question presented) to Section VI (opinion). Note that there are two separate opinion documents, in addition to the VA examination report (three documents total). 3. Obtain a VA medical opinion based on a review of the entire claims file, to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s gastritis or GERD a) had its onset in service or was otherwise caused by his active service, or b) was caused or permanently aggravated by NSAID use for his service-connected degenerative arthritis of the spine or migraine headaches. An examination is necessary if required by the examiner to form an opinion. Please direct the VA examiner’s attention to records of treatment in service and post-service for stomach complaints and H. pylori infection: STRs at p.5, 25, 37, and 125 of 143; Records, received June 2003 at p.14, received February 2008 at p.21 and 72; CAPRI, received September 2020 at p.87-89, received July 2020 at p.2 of 4 (two sets of July 2020 CAPRI records, same page). Also direct the examiner’s attention to the July 2019 upper GI series performed in connection with a VA examination, as well as August 2011, November 2019, and March 2020 VA medical EGD reports. Any opinion must be accompanied by a complete rationale. 4. Afford the Veteran a new VA examination to address the nature and etiology of his claimed respiratory disorder, to include but not limited to COPD. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. All necessary tests and studies should be performed – exercise pulmonary function testing must be performed. The examiner should opine as to whether it is “at least as likely as not” that any respiratory disorder identified on examination had its onset in service or was otherwise caused by the Veteran’s active service. Please ask the VA examiner to address the notation in a November 2019 VA medical center anesthesia record of COPD. See CAPRI, received July 2020 at p.264 of 383. Please direct the VA examiner’s attention to the Veteran’s records of treatment in service, including for exertional dyspnea, and record of complaint at the VA medical center in September 2001: See STRs at p.13, 15, 19, 29-30, 92, 121-122, and 136 of 143; see also Records, received June 2003 at p.21 of 25; Statement, March 2002. Any opinion must be accompanied by a complete rationale. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Juliano, 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.