Citation Nr: 21015690 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-34 033 DATE: March 18, 2021 ORDER Entitlement to service connection for migraines is granted. Entitlement to service connection for a lumbar spine disability, diagnosed as subarticular stenosis, disk bulge at L5-S1, intervertebral disc syndrome, and degenerative joint disease of the lumbar spine, is granted. Entitlement to service connection for radiculopathy of the bilateral lower extremities, as secondary to a lumbar spine disability, is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran’s migraines had an onset during service and have continued to date. 2. The evidence of record does not satisfactorily prove or disprove that the Veteran’s claimed lumbar spine disability had an onset during service or is casually or etiologically due to service. 3. The Veteran’s radiculopathy of the bilateral lower extremities is proximately due to his lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for migraines are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a lumbar spine disability, diagnosed as subarticular stenosis, disk bulge at L5-S1, intervertebral disc syndrome and degenerative joint disease of the lumbar spine, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for radiculopathy of the bilateral lower extremities, as secondary to service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1990 to May 1990, September 1990 to August 1991, and May 1994 to September 1994. He had service in Southwest Asia from October 1990 to July 1991. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from April 1996 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). As noted in the November 2015 and October 2019 Board remands, a review of the record indicates the Veteran’s claim for headaches reflects that the Veteran’s original claim filed in March 1993 is still pending. In an April 1996 rating decision, the RO denied entitlement to service connection for headaches. In April 1996, the Veteran filed a notice of disagreement. The RO did not issue a statement of the case; instead, the RO readjudicated the claims on the basis of whether new and material evidence had been received sufficient to reopen them. This was a RO error as the original claim was still pending when it was readjudicated on the basis of new and material evidence in 1997, 2005 and 2009. The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2015 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In November 2015 and October 2019, the Board remanded these claims for additional development. Importantly, the majority of the Veteran’s service treatment records are unavailable. In cases where a Veteran’s service treatment records are unavailable through no fault of his or her own, there is a heightened obligation to assist the Veteran in the development of the case. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); 38 U.S.C. § 5107a; 38 C.F.R. § 3.303(a). Service Connection The Veteran seeks entitlement to service connection for migraines, a lumbar spine disability and radiculopathy of the bilateral lower extremities. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, 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 Veteran 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 of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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 claimant). 1. Entitlement to service connection for migraines. The Veteran seeks entitlement to service connection for migraines. He asserts his migraines began during service while serving in Southwest Asia. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Migraines are an organic disease of the nervous system, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran has a current diagnosis of migraines. See September 2020 VA examination. Importantly, as noted, the majority of the Veteran’s service treatment records are unavailable. However, the Veteran has asserted on multiple occasions throughout the course of the appeal that his symptoms began during service. The Veteran testified at a Decision Review Officer hearing in May 2013 that he had some migraines while serving in Saudi Arabia, and that he was treated for headaches while in service in Germany. He testified that he was near burn pits during service while in Saudi Arabia. The Veteran testified in April 2015 before the Board that he began having migraines in 1991 and they have continued to date. The Veteran is competent to report and identify when he experienced headaches during service, as they are capable of lay observation. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As noted, since as early as 1993, the Veteran has consistently reported experiencing migraines during service, which have continued to date. The Board finds these statements to be credible, as there is internal consistency and facial plausibility. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the Veteran has consistently reported that he experienced the same symptoms during and post service, which were later diagnosed as migraines in February 2014. See, e.g., February 2014 VA treatment record. Although migraines were not explicitly diagnosed during service, or within the applicable presumptive period, the record contains credible evidence of continuity of symptomatology related to migraines during and since discharge from service. The Board acknowledges the negative evidence of record. Of note, multiple VA medical opinions have been obtained. Several VA examiners have indicated that heat, humidity, stress, certain odors, and environmental contaminants may trigger a migraine, but they do not cause a migraine disorder and opined that the Veteran’s headaches were less likely than not due to service because there was no evidence in the medical records that his headaches began during service. See, e.g., March 2015, November 2020 VA examinations. As noted, however, the Veteran’s service treatment records are missing, and he has asserted on multiple occasions that his headaches began during service. While there is no positive opinion of record linking the Veteran’s migraines to his active service, the Veteran has indicated, in sum, that he has been suffering from migraines starting in service and continuing to the present day. In weighing the Veteran’s statements, the Board notes that the Veteran is competent to assert the presence of symptoms, such as headache pain, that are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also has no reason to doubt the credibility of the Veteran’s statements and as such finds them probative. Given the Veteran’s credible statements of persistent and recurrent symptoms and the lack of an adequate negative nexus opinion, the Board resolves all reasonable doubt in his favor, and finds that the criteria for entitlement to service connection for migraines, pursuant to the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, the Veteran's service-connection claim for migraines is granted. 2. Entitlement to service connection for a lumbar spine disability, diagnosed as subarticular stenosis, disk bulge at L5-S1, and degenerative joint disease of the lumbar spine. The Veteran seeks entitlement to service connection for a lumbar spine disability. He asserts he injured his back on multiple occasions during service and his symptoms have continued to date. The Veteran has several current diagnoses, including subarticular stenosis, disk bulge at L5-S1, intervertebral disc syndrome, and degenerative joint disease of the lumbar spine. See, e.g., September 2020 VA examination. As noted, the majority of the Veteran’s service treatment records are unavailable. The Veteran was discharged from service in September 1994 and submitted a claim for a low back disability less than 2 years later, in July 1996. He has continually asserted that he injured his back during service in 1990 and 1991 while in Saudi Arabia and reinjured his back while in Germany. See July 1996 claim. Throughout the course of this appeal, the Veteran’s account of in-service injuries and symptoms have remained consistent for the last twenty-five years. Of note, during the Veteran’s April 2015 Board hearing, he testified that he began receiving treatment for his back at the VA in approximately 1995 or 1996; unfortunately, these records were not located. Post-service treatment records, however, document that the Veteran has consistently sought treatment for his low back pain and radiating pain and numbness into the legs, since approximately 2008. During an August 1996 VA examination, he explained that his back first began hurting after he was required to do a lot of lifting of mail during service in 1990 and 1991, then in 1993 and 1994, he was required to clean vehicles, which involved a lot of lifting, twisting, and reaching. Additionally, he fell in 1994, twisting his back. He reported that x-rays taken during service were normal; however, he continued to experience a backache with pain radiating into his legs while in service. The VA examiner stated that the Veteran had a “history of low back strains and findings were suggestive of mild degenerative joint disease in the lumbosacral area, but today there is no neurological pattern apparent.” X-rays were then taken; however, the impression section was left blank and did not mention degenerative joint disease. A November 2008 VA treatment note indicates the Veteran reporting having intense flare-ups of lumbago since the early 1990’s. A magnetic resonance image (MRI) demonstrated chronically degenerative L5-S1 with subarticular stenosis on the right side and asymptomatic extruded fragment on the left foramen. In L4-5, there was a far lateral extraforaminal disk protrusion. The Veteran applied for Social Security disability benefits in August 2014, at which time he reported back pain that began in the early 1990’s. He reported falling off a tank and sustaining a low back injury that radiated into the right lower extremity. The Board notes that a VA medical opinion obtained in July 2018 opined that the Veteran’s current degenerative joint disease is less likely than not due to his injuries sustained during service because x-rays in 1996 were negative for even mild degenerative joint disease and he was diagnosed with a low back strain. The examiner stated that lumbar strains are soft tissue injuries and do not cause or progress into degenerative joint disease. The July 2018 VA examiner did not offer an opinion or discussion about the Veteran’s bulging disc or subarticular stenosis. The Board remanded the appeal in October 2019, noting that if the Veteran had a bulging disc during service, or in 1996, it would not have shown up on the x-rays, and directed the RO to obtain an addendum opinion. An addendum opinion was obtained in November 2020. The VA examiner opined that there was not enough evidence to support that the Veteran’s current lumbar spine disorders were due to military service. The examiner stated that the Veteran’s lay statements were considered, however there was no evidence of a chronic back condition during service found in the service treatment records or in exams shortly after service, and the Veteran’s degenerative disc disease was first diagnosed in 2008, many years after service. The Board does not find any of the VA opinions of record to be probative or persuasive. As noted, the majority of the Veteran’s service treatment records are unavailable, however, the VA examiners continued to base their opinions on the fact that there was “no evidence of a chronic back condition during service.” Additionally, the November 2020 VA examiner failed to offer comments or an opinion regarding the fact that a bulging disc would not show on an x-ray, despite being directed to do so by the Board. The Board declines to remand this case yet again and further delay disposition of this appeal. The Court of Appeals for Veterans Claims reiterated in Wise that “[b]y requiring only an ‘approximate balance of positive and negative evidence’ to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107 (b), the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). The evidence of record does not satisfactorily prove or disprove that the Veteran’s claimed lumbar spine disability had an onset during service or is casually or etiologically due to service. Given the Veteran’s credible statements of persistent and recurrent symptoms and the lack of an adequate negative nexus opinion, the Board resolves all reasonable doubt in his favor, and finds that the criteria for entitlement to service connection for the Veteran’s lumbar spine disability are met. 3. Entitlement to service connection for radiculopathy of the bilateral lower extremities. The Veteran seeks entitlement to service connection for radiculopathy of the bilateral lower extremities. As service connection is being granted on a secondary basis based on causation, there is no need to discuss entitlement to service connection on a direct or any other basis. Service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Veteran has a current disability specifically diagnosed as lumbar radiculopathy of the bilateral lower extremities. See, e.g., September 2020 VA examination. As a result of this Board decision, service connection has been granted for the Veteran’s lumbar spine disability. Accordingly, the Board finds that service connection for radiculopathy of the bilateral lower extremities, as secondary to his lumbar spine disability, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.