Citation Nr: 21015430 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-27 366 DATE: March 17, 2021 ORDER Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to service connection for blood clots, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected disability, is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s migraine headaches are related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to February 1971, which includes service in the Republic of Vietnam. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision. The claims were previously remanded by the Board in September 2018 for additional development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service “in the Republic of Vietnam” includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A (a). Entitlement to service connection for migraine headaches The Board finds, for the following reasons, that the Veteran has a current diagnosis of migraine headaches and that the evidence is at least evenly balanced as to whether this disability is related to service. Medical records, including the report of a September 2020 VA headache examination, show that the Veteran has a current diagnosis of migraine headaches. Therefore, current headache disability has been demonstrated. The Veteran has reported that he experienced headaches in service when he was in close proximity to field artillery while stationed in Vietnam and that he was given medication for headaches in service. His DD Form 214 confirms that he served in Vietnam from December 1969 to February 1971. As he served in Vietnam during the Vietnam War era, his exposure to herbicide agents in service (including Agent Orange) is presumed. Moreover, the Veteran has reported on various occasions that his unit experienced incoming enemy fire while stationed in Vietnam. Service connection for posttraumatic stress disorder (PTSD) was awarded in a September 2010 rating decision on the basis of his exposure to rocket attacks in Vietnam. A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran’s own statements and an “almost unlimited” variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran is competent to report his exposure to incoming enemy fire in service and there is no evidence that explicitly contradicts his reports. Therefore, the Board finds that his reports of combat exposure in service are credible and that there is sufficient evidence that the Veteran participated in combat/was exposed to incoming enemy fire while serving in Vietnam. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use “satisfactory lay or other evidence” to establish that he incurred the disability itself in service, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran’s reports of headaches in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service in Vietnam. There is no clear and convincing evidence to the contrary. Therefore, the presence of headaches in service is established. As for whether the Veteran’s current migraine headaches are related to service, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The physician who conducted an August 2019 VA headache examination opined that the Veteran’s headaches were likely (“at least as likely as not”/“50 percent or greater probability”) incurred in or caused by service. The examiner reasoned that the Veteran had no headaches prior to enlisting in service and that his exposure to herbicides, loud noises, and fumes in service triggered migraines. The physician who conducted the September 2020 VA headaches examination opined that the Veteran’s headaches were not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. The physician reasoned that a review of the Veteran’s records revealed one complaint of sudden headaches associated with multiple symptoms and he was evaluated for possible thrombosis. There were no further reports of headaches found. The Veteran denied headaches during his separation examination and on examinations in 2011 and 2015. Although he served in Vietnam, migraines are not a condition considered a presumptive result of herbicide agent exposure in Vietnam, and one complaint of or treatment for headaches was found in the records between 1988 and 2019, indicating a lack of chronicity. The September 2020 opinion is of limited probative value because it is essentially based on the absence of evidence of treatment for headaches during service or for many years after service, and it does not reflect consideration of the Veteran’s competent and credible reports of headaches in Vietnam. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). This is particularly true in the case of a combat veteran. Congress enacted the combat statute because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Thus, to the extent that the September 2020 opinion was based on a lack of report of headaches during service, this is precisely the reasoning that the combat law was designed to prevent. The August 2019 opinion, by contrast, is based upon a review of the Veteran’s records and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record and the circumstances of the Veteran’s service in Vietnam. Thus, the August 2019 opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the evidence reflects that the Veteran experienced headaches in service, he has been diagnosed as having current migraine headaches, and there is a probative medical opinion that the current headaches are related to service. Thus, the evidence is at least evenly balanced as to whether the current migraine headaches are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraine headaches is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for blood clots, to include as due to herbicide agent exposure, is remanded. The previous Board remand in September 2018 requested a VA opinion as to whether the Veteran’s blood clot condition is related to service, to include his presumed herbicide exposure. A September 2020 VA opinion reports that the Veteran had a complete and thorough summary of his blood clotting condition on a discharge summary in January 1987. Moreover, while the Veteran served in the Republic of Vietnam in the Vietnam era, the Veteran’s condition is not an established or recognized condition presumed due to Agent Orange. Thus, the Veteran’s essential thromboycitis with multiple thrombosis is less likely than not caused by or incurred in service or due to herbicide exposure. The Board finds that this opinion is inadequate. In Stefl v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) explained that a medical opinion which employs such reasoning alone-namely, that “a condition is not related to service because the condition is not entitled to presumptive service connection”-is “inadequate on its face,” because “[t]he existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the [National Academy of Sciences (NAS)] recognizes a positive association.” 21 Vet. App. 120, 123-24 (2007); cf. Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (finding that the Board provided inadequate reasons or bases for relying on a medical opinion that was “based solely on the fact that this disease is listed in the ‘Limited Evidence of No Association’ category” in an earlier NAS report without addressing the Veteran’s risk factors and the unique presentation and development of the Veteran’s brain tumor). The Board finds that the September 2020 VA opinion is inadequate because, like the examiner in Stefl, the opinion citing that the Veteran’s condition is not a presumptive disease, alone, is an insufficient rationale. The Board does not find the additional statement regarding a post service hospital discharge summary provides any additional rationale for the opinion. The Board notes that a May 1987 VA hospital discharge summary notes the Veteran reported a day prior to being admitted, he slept on his left arm and woke up with a pulseless left hand. His past medical history reported a significant gunshot wound to the abdomen in 1979 with significant post-operative pulmonary embolus. He had previously underwent an arteriogram in April 1987, showing subclavian thrombosis. According to this discharge summary, he was diagnosed to have, in pertinent part, thrombosis of left brachia, radial, ulna, and femoral arteries, and hypertension. The medical notes from this April 1987 surgery have been included in the record; but the medical records associated with his gunshot wound and any other outstanding private medical records should be obtained. Accordingly, a remand is needed for outstanding records and an adequate VA opinion. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Southeast Louisiana Veterans Health Care System (dated to September 2020) and the Central Arkansas Veterans Healthcare System (dated to February 2018). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and as secondary to service-connected disabilities, is remanded. As noted in the previous remand, herbicide exposure has been presumed, and the Veteran claims that his hypertension is due to his herbicide exposure. The Board previously requested an etiology opinion for the Veteran’s hypertension, to include as to whether the condition was due to his presumed herbicide exposure. A post-remand September 2020 opinion reports that the Veteran’s hypertension is due to several factors including obesity, being over the age of 40, smoking, hyperlipidemia, hypercholesterolemia, and genetics. The examiner reported that the Veteran had these conditions before and when he was diagnosed with hypertension in 2009, so they are likely the etiology of his hypertension. Therefore, the Veteran’s hypertension is less likely than not due to service or exposure to herbicides while in Vietnam. However, the Veteran’s May 1987 discharge summary discussed above along with the medical records associated with the discharge summary, report the Veteran had a diagnosis of hypertension and that he had a prior medical history of hypertension. Yet, there were no subsequent medical records showing treatment for hypertension until around 2009. Nevertheless, the objective medical evidence shows the Veteran’s hypertension began prior to the risk factors listed in the September 2020 opinion. Accordingly, the post-remand opinion is inadequate as it relies on an inaccurate factual premise that the Veteran was not diagnosed with hypertension until 2009. More importantly, a remand is needed because the September 2020 opinion does not provide a rationale as to why the Veteran’s hypertension is not due to his presumed exposure to herbicides. In this regard, the National Academy of Sciences (NAS) moved hypertension from the “limited or suggestive” category and indicated that there is now “sufficient evidence” of an association between hypertension and Agent Orange exposure. See Veterans and Agent Orange: Update 11 (2018). Moreover, the Veteran has been awarded service connection for PTSD with major depressive disorder not otherwise specified (NOS) and alcohol abuse, as well as diabetes mellitus. The Board points out that VA’s own regulatory documents have indicated a possible association between psychiatric disorders and cardiovascular disease. See Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69 Fed. Reg. 60083 (Oct. 7, 2004) (association between PTSD and cardiovascular disease in prisoners of war). Also, hypertension is recognized by VA as being a potential complication of diabetes. In light of the above, a remand is necessary to obtain an adequate medical opinion as to the etiology of the Veteran’s hypertension. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Obtain updated medical records, VA and private, and associate them with the record. The Board is particularly interested in obtaining any outstanding records associated with the Veteran’s gunshot wound in 1979 and the Veteran’s treatment at Ocshner Clinic, or other private medical facility, before and after his 1987 VA treatment for blood clots. Also, obtain the Veteran’s outstanding VA treatment records from the Southeast Louisiana Veterans Health Care System for the period since September 2020; the Central Arkansas Veterans Healthcare System for the period since February 2018; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician as to the nature of the Veteran's blood clot condition and as to whether the disability is related to service. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The addendum 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 clinician is asked to address the following: Is it at least as likely as not (50 percent or greater probability) that any disability manifested by blood clots experienced by the Veteran since approximately January 2010 (1) began during active service; OR (2) is related to an in-service injury or disease, to include his presumed exposure to herbicide agents (including Agent Orange)? The clinician must provide reasons for each opinion given. In this regard, the clinician is reminded that an opinion that is based solely on the lack of any current presumptive relationship to herbicide agents is not adequate. In rendering the requested opinion, the clinician should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician as to whether the Veteran's hypertension is related to service or is caused or aggravated by service-connected disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. The addendum 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 is asked to address the following: Is it at least as likely as not (50 percent or greater probability) that any hypertension experienced by the Veteran since approximately January 2010 (1) began during active service; (2) manifested within one year after discharge from active service; (3) is related to an in-service injury or disease, to include his presumed exposure to herbicide agents (including Agent Orange); (4) is caused by service-connected diabetes mellitus and/or PTSD with major depressive disorder NOS and alcohol abuse; OR (5) is aggravated by service-connected diabetes mellitus and/or PTSD with major depressive disorder NOS and alcohol abuse? The clinician must provide reasons for each opinion given. In this regard, the clinician should address the NAS’s determination that there is now sufficient evidence of an association between hypertension and Agent Orange exposure (See Veterans and Agent Orange: Update 11 (2018)). The fact that hypertension is not yet on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion. In rendering the requested opinion, the clinician should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Wade 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.