Citation Nr: 21023421 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-00 368A DATE: April 20, 2021 ORDER Entitlement to service connection for a migraine headache disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran’s chronic migraine headache disability had its onset during service and have continued since that time. CONCLUSION OF LAW The criteria for entitlement to service connection for a migraine headache disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1964 to July 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Previously, this matter was before the Board in April 2020, at which time the Board remanded the claims for service connection for a migraine headache disability, a low back disability, and peripheral neuropathy of the bilateral upper and lower extremities for additional development. Thereafter, the RO issued a supplemental statement of the case (SSOC) denying the claims in February 2021. Following the issuance of the SSOC, the Veteran opted into the modernized appeal system pursuant to the Appeals Modernization Act (AMA) with respect to his four peripheral neuropathy claims. The AMA appeals system is separate and distinct from the legacy (i.e., pre-AMA) appeals system. As such, the peripheral neuropathy claims have been removed from the legacy appeals system and will be addressed by the Board in a separate decision in accordance with the rules applicable to the AMA appeals system. However, the Board still has jurisdiction over the migraine and low back disability claims, which will be addressed in this decision. A March 2013 VA Form 21-22 appointed Veterans of Foreign Wars of the United States (VFW) as the Veteran’s general power of attorney. The Board also notes that the Veteran later submitted a VA Form 21-22a appointing Peter J. Meadows as his limited power of attorney with respect to the peripheral neuropathy issues. However, a limited power of attorney does not revoke a prior, general power of attorney. 38 C.F.R. § 14.631(f). As such, while Mr. Meadows maintains a limited power of attorney over his claims for peripheral neuropathy, VFW retains power of attorney over all additional issues, including the service connection claims addressed in this decision. This matter has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). Service Connection The Veteran contends that he is entitled to service connection for his migraine headaches. More specifically, he contends that he first began experiencing headaches that lasted for days in 1967 while he was stationed in Vietnam and that these symptoms have continued since that time. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, including organic diseases of the nervous system, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is “shown as such in service,” meaning clearly diagnosed beyond legitimate question, or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. On the other hand, if evidence of a chronic disease is noted during service or during the presumptive period, but the chronic condition is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned (i.e., when the fact of chronicity in service is not adequately supported), then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Id. at 1339. Here, the record indicates an onset of migraine headaches during service. To that end, service treatment records show that in January 1967 he complained of headaches for the past two days. In November 1967, he reported that he continued to have headaches with nausea and vomiting. Once more, in January 1968 he endorsed a history of chronic headaches and complained that he had been experiencing a headache for the past three days. Moreover, the Veteran has consistently reported that he began experiencing headache symptoms during service that have continued since that time. For instance, in September 2012 he reported to a private physician that he had been referred by a family physician for an MRI of his brain due to a history of migraine headaches. Similarly, in July 2014 he reported that he began having headaches while in Vietnam, but that he was not diagnosed with migraine variant headaches until 1985 following migraines with stroke symptoms. Additionally, in his February 2018 substantive appeal, he stated that he had been experienced prolonged headaches during service. After separation, he continued to experience prolonged headaches, which he treated with over-the-counter painkillers. While working as a flight attendant in 1985, he was overcome with symptoms associated with a stroke and then a migraine headache. A neurologist later diagnosed migraine variant headaches. The Board finds that the Veteran is permitted to report his headache symptoms from service and since discharge. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). His statements are also internally consistent and consistent with the record as a whole. As such, the Board finds them highly credible. Additionally, post-service treatment records support a continuity of headache symptoms following service. For instance, at his initial neurological consultation with Dr. H.G. in July 2014, he stated that his prolonged headache symptoms began in approximately 1967 or 1968 while he was serving in Vietnam and that he has continued having sever migraine headaches with stroke symptoms. Although the July 2014 records were generated several years after his discharge from service, the Board accepts these findings regarding the onset and continuity of his migraine symptoms. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (a medical opinion based on the veteran’s reported medical history cannot be rejected without the Board first finding that the veteran’s allegations are not credible). Although an April 2014 VA examiner provided a negative nexus opinion as to the etiology of the Veteran’s headaches, the examiner did not consider the Veteran’s lay statements regarding the onset of his headache symptoms or the July 2014 records describing the history of his symptoms. Furthermore, as noted above, a continuity of symptomatology establishes the link, or nexus, between the current disease and serves as an evidentiary tool to confirm the existence of a chronic disease in service. Walker, 708 F.3d at 136. Resolving any doubt in the Veteran’s favor, the Board finds his chronic migraine headaches had their onset during service and that his symptoms have continued since discharge. Service connection is thus warranted. REASONS FOR REMAND Previously, the Board remanded the Veteran’s claim for a low back disability for the RO to request any outstanding service treatment records, specifically records generated during the Veteran’s service in Phu Bai, Vietnam. On remand, the RO submitted a request for the National Personnel Records Center (NPRC) to furnish complete medical and dental records and his entire personnel file. The NPRC completed this request on February 5, 2021, and indicated that all available requested records had been uploaded to his claims file. It thus appears that all relevant service personnel and treatment records have been associated with the record. At this juncture, however, the Board is unable to reach the merits of the Veteran’s claim. Remand is warranted to obtain an addendum medical opinion regarding the etiology of his low back disability. The Veteran’s service treatment records reflect that in December 1965 he complained of low back pain after lifting his bunk, resulting in a diagnosis of strain. Later, in August 1966, he was diagnosed with a sprained back muscle. He also reported that he was evaluated for complaints of back pain while stationed in Phu Bai in 1968. Additionally, he has stated that he only reported to sick call for back pain when it made it “impossible” to do his job during service, as opposed to every time he had back pain. The Veteran acknowledges that he did not report back pain at his separation examination. However, he has clarified that he denied any back pain because he had no way of knowing that his back had been damaged, as he had not undergone any diagnostic tests, like an MRI, at that point. The Veteran was afforded a VA examination in connection with his claim in April 2014. The April 2014 VA examiner diagnosed lumbosacral strain and herniated discs before opining that it was less likely than not that his current low back disability was incurred in or caused by his claimed in-service injuries. As rationale, the VA examiner explained that his service treatment records showed he had only been seen once for back pain during service and that he had denied back problems at his separation physical. The Board finds that this opinion is inadequate for two reasons. First, the April 2014 VA examiner did not adequately consider the Veteran’s lay contentions regarding the onset of his back pain. Second, the VA examiner seems to have impermissibly based his negative nexus opinion on a lack of contemporaneous service treatment records for chronic back pain without discussing the Veteran’s contentions regarding its onset. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Remand is thus warranted to obtain an addendum opinion discussing the relationship between the Veteran’s current low back disability and his service. Accordingly, this matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § § 20.800(c). Expedited handling is requested.) Obtain a new VA medical opinion from an appropriate examiner to address the nature and etiology of the Veteran’s low back disability. The claims file and a copy of this remand should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file in its entirety. The examiner is asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current low back disability is etiologically related to his active service, to include the back pain reported during service. If the examiner determines that another examination is needed to provide the required opinion, the Veteran must be afforded an appropriate VA examination. Any indicated evaluations, studies, and test deemed necessary by the examiner should be performed. A complete rationale is required for any opinion rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should consider his lay statements regarding the onset of periodic back pain during service. The examiner is reminded that a lack of contemporaneous medical records alone is not a sufficient reason to find there is no nexus between a claimed injury and a current diagnosis. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). (Continued on the next page)   If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. More specifically, the examiner must explain whether the inability to provide a more definitive opinion is due to a need for additional information, the examiner’s lack of personal knowledge or training, or the limits of current medical knowledge. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate 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.