Citation Nr: 21012437 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 04-25 076 DATE: March 4, 2021 ORDER Entitlement to service connection for migraine variant is denied. REMANDED Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for a back disability, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected disability, is remanded. Entitlement to a rating in excess of 10 percent for left foot bipartite sesamoid bone injury is remanded. FINDING OF FACT The Veteran’s migraine variant did not manifest in service; and is not shown to be causally or etiologically related to an in-service event, injury, or disease, including in-service seizures. CONCLUSION OF LAW The criteria to establish entitlement to service connection for migraine variant have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to June 1970. He appeals a June 2018 rating decision by the Agency of Original jurisdiction (AOJ) that denied the claim for service connection for migraine variants. In October 2019, the Board remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Veteran also appeals an April 2002 rating decision by the AOJ continuing a non-compensable disability rating for left foot bipartite sesamoid bone injury and denying service connection for damage to back, bilateral knees, and bilateral hips. In a March 2016 rating decision, the AOJ increased the Veteran’s left foot disability rating to 10 percent effective December 6, 2001. In March 2012, December 2015, August 2016, January 2017, August 2017, and January 2020, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. Unfortunately, another remand is necessary and will be discussed in the Remand section below. Entitlement to service connection for migraine variant is denied. The Veteran and his attorney contend that the Veteran’s migraines may be related to an in-service seizure. See Attorney Statement, dated August 14, 2019. At the same time, the Veteran’s attorney also submitted information regarding the relationship between migraines and epilepsy. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, 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 generally show: (1) the existence of a present disability; (2) the 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (A veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail.) A review of the record shows an August 1969 service treatment record reflecting a tentative diagnosis of hysterical seizure. A May 1968 pre-induction report and a June 1970 separation report of medical examination were negative for any complaints, treatment, or diagnosis of any type of headache or seizure condition. Post service treatment records include an October 1994 MRI of the spine which noted that the Veteran fell three days prior. A February 1998 VA compensation and pension examination noted the Veteran’s reported history of falling from 22 feet in October 1994 with a loss of consciousness for 12 hours. He was told that he developed a blood clot and right sided paresis and ataxia. Since then he had problems with short-term memory and headaches. April 1998 VA treatment records indicate that the Veteran had a cerebral hemorrhage status post fall with loss of consciousness for several hours in 1994 and migraines with aura. He was diagnosed with posttraumatic headaches. A June 1998 record noted that the Veteran had a cardiovascular accident that was caused by his wife pushing him off the balcony and striking his head. A February 2002 record notes a history of migraine headaches and that he sustained a closed head injury ater a fall. A May 2011 medical report documents that the Veteran was beaten up in jail four days prior and being unconscious for an hour and a half from a head injury. In August 2011, the Veteran reported that he was involved in a motor vehicle accident a few days prior and claimed that he was diagnosed with cerebral hemorrhage. A September 2011 record revealed that the Veteran’s car was hit from behind in August. He also claimed that he was attacked by a kid and hit in the head. A May 2016 VA treatment record noted a history of chronic neck pain, history of head trauma with loss of consciousness in Vietnam in 1970 and in 1995 from a car accident with intracerebral hemorrhage, and blackouts since 1969. The Veteran reported that he had black outs since 1969 after an explosion. In a May 2016 addendum, the VA neurologist noted that black-out spells may be related to prolonged headaches but may also be related to seizure. During a May 2018 VA headache examination, the Veteran was diagnosed with migraine including migraine variants. The examiner noted the Veteran’s history of headaches beginning in November 1969 when he fell backwards and landed on his neck and back. He claimed that he had had headaches and episodes of blackouts since that time. The examiner did not provide an opinion regarding the etiology of the Veteran’s headaches. In a December 2020 VA headache examination, the examiner summarized the Veteran’s medical history and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged that there was a service treatment record dated August 31, 1969 that noted that the Veteran “collapsed while on duty.” All diagnostic testing and physical testing were normal. He was diagnosed with “hysterical seizure.” He “could give no history of drug ingestion and no clue as to the cause of his problem." He denied an ongoing seizure disorder or treatment thereof since separation from military service. The examiner also noted that no headache was noted in the service treatment records since August 31, 1969. There was a discharge examination in June 1970 and no seizure or headache condition was noted on examination. There were no medical records that pertained to an ongoing seizure or headache condition in the years immediately following separation from military service. He was assessed approximately 30 years later for a VA examination in February 1998 and Dr. G. noted the Veteran’s reports of falling from 22 feet in October 1994. He was unconscious for 12 hours and went in and out of consciousness for two days. The examiner noted that the Veteran was subsequently diagnosed with post traumatic headache by Dr. G. There was no history of seizures and no correlation to the headaches noted on this examination. The VA examiner also reviewed the 2016 VA neurology note indicting that black out spells may be related to prolonged headaches but may also be related to seizure. The examiner noted, however, there was no history of seizure disorder in the prior 46 years (since separation from military service in 1970). Furthermore, he underwent a sleep deprived EEG in December 2016, which was interpreted as normal by Dr. S. therefore, there was no diagnosis of a seizure disorder. In addition, there was no nexus established between the Veteran's current headaches and military service. The VA examiner opined that the current headaches were less likely than not related or attributable to the Veteran’s military service, to include his hysterical seizure in August 1969, and most likely related to the 22 foot fall in 1994, resulting in a loss of consciousness for 12 hours. The examiner also acknowledged that there was a motor vehicle accident in 2011, in which the Veteran reportedly became unconscious. The examiner opined that this would have certainly exacerbated the Veteran’s underlying headache disorder that stemmed from the 22-foot fall that resulted in trauma and loss of consciousness in 1994. Therefore, the examiner opined that the current headaches were less likely than not related or attributable the Veteran’s military service, to include his hysterical seizure in August 1969. The Board finds that the December 2020 examiner's opinion constitutes competent, probative, and persuasive evidence that is based on review of the Veteran's documented medical history and assertions, research and examination. The examiner provided a rationale based on an accurate discussion of the evidence of record with support of medical literature. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Thus, the Board affords the opinion significant probative weight. The Veteran has not submitted any contrary adequate medical opinion that supports his claim, or calls into question the rationale of the December 2020 examiner. The Board has considered the Veteran’s own lay assertions and, insofar as the Veteran has asserted his headaches began during service in November 1969 when he fell backwards and landed on his neck and back; when he had an in-service seizure; or his history of head trauma with loss of consciousness in Vietnam in 1970. The Board finds such assertions to be not credible, given his denial of having experienced any headaches or seizures upon discharge from service, and his normal clinical evaluation of the neurological system at separation. While the Veteran may otherwise believe his history of headaches are due to his in-service fall or seizure, he has not demonstrated he has the medical expertise to competently relate this condition to his injury. Consequently, the Board finds the most probative evidence of record is against a finding that the Veteran’s migraine variant had onset during service, or is otherwise related to service. Because the preponderance of the evidence is against the claim for service connection for migraine variant the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for bilateral hip disability is remanded. 4. Entitlement to a rating in excess of 10 percent for left foot bipartite sesamoid bone injury is remanded. In January 2020, the Board remanded the claims to obtain an opinion to determine whether it was at least as likely as not that the Veteran’s back, bilateral hip, and bilateral knee disabilities as well as the Veteran’s left foot disabilities, to include left foot pes cavus, hallux valgus, calcaneal spur, and degenerative arthritis of the metatarsophalangeal joint were either caused or worsened beyond their normal progression due to the Veteran’s service-connected left foot bipartite sesamoid bone injury. In response, in March 2020 and September 2020, VA examiners found that the Veteran’s left foot calcaneal spur and hammer toe conditions were neither proximately due to nor worsened beyond natural progression by the left foot bipartite sesamoid bone injury based on the reasoning that there was no pathology to render a diagnosis of left foot hammer toe and calcaneal spur condition. Given that prior VA podiatry treatment records and VA foot examinations included such diagnoses as left foot hammer toe and calcaneal spur, the VA examiners’ opinions are based on an inaccurate factual premise and a new opinion is necessary. Additionally, the Veteran has recently been service-connected for left foot hallux valgus with metatarsophalangeal degenerative arthritis associated with injury of the bipartite sesamoid’s bone. Given the association between the Veteran’s previously service-connected left foot bipartite sesamoid bone injury and the recently service-connected left foot hallux valgus with metatarsophalangeal degenerative arthritis, updated opinions are necessary to address whether or not the Veteran’s back condition, bilateral hip, bilateral knee conditions, and left foot pes cavus, hammer toe, and calcaneal spur, are at least as likely than not proximately due to or worsened beyond their natural progression by the service connected left foot bipartite sesamoid bone injury and left foot hallux valgus with metatarsophalangeal degenerative arthritis. Finally, in order to adequately assess the nature and the severity of the Veteran’s left foot bipartite sesamoid bone injury, the Board asks the examiner to address the symptoms, severity, and impairment caused by this disability and to determine if the left foot pes cavus, calcaneal spur, and hammer toes were secondary to the service-connected left foot condition. As an award of service connection for left foot pes cavus, hammer toe, and calcaneal spur may have an impact on the Veteran’s increased rating for left foot bipartite sesamoid bone injury, on remand, the VA examiner is asked to address whether or not any diagnosis is related to the left foot bipartite sesamoid bone injury, and indicate which left foot symptoms are associated with each diagnosis. The matters are REMANDED for the following action: 1. Obtain an assessment from an appropriately qualified VA examiner to determine the nature and current severity of the left foot bipartite sesamoid bone injury. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The assessment must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate assessment. a) The symptoms, severity, and impairment caused by the left foot bipartite sesamoid bone injury should be clearly identified. b) The examiner is asked to determine whether it is at least as likely as not that the Veteran’s left foot disabilities, to include pes cavus, calcaneal spur, hammer toes were (a) caused by; or (b) worsened beyond their normal progression as a result of the Veteran’s service-connected left foot bipartite sesamoid bone injury and left foot hallux valgus with metatarsophalangeal degenerative arthritis. See also January 2016, April 2017, and March 2019 VA examination reports that include such diagnoses as left foot pes cavus, calcaneal spur, and hammer toe. c) If the examiner finds any diagnosis is related to the left foot bipartite sesamoid bone injury and left foot hallux valgus with metatarsophalangeal degenerative arthritis, he or she should indicate which left foot symptoms are associated with each diagnosis. 3. After completing the above directive, obtain an opinion from an appropriately qualified VA clinician to determine the nature and etiology of the Veteran’s back, bilateral hip, and bilateral knee disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the clinician as to whether a new examination is necessary to provide an adequate opinion. The examiner must respond to the following: a) Identify all back, bilateral hip, and bilateral knee disabilities present since service, found on current examination or in the record. b) Determine whether it is it at least as likely as not that any identified back, bilateral hip, and/or bilateral knee disabilities were (a) caused by; or (b) worsened beyond their normal progression as a result of the Veteran’s service-connected left foot bipartite sesamoid bone injury and/or left foot hallux valgus with metatarsophalangeal degenerative arthritis. c) A clearly-stated rationale for any opinion offered should be provided and must be based on consideration of all pertinent lay and medical evidence. B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Crohe, 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.