Citation Nr: 21023679 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-21 830 DATE: April 21, 2021 ORDER Service connection for migraine headaches is denied. Service connection for a cardiovascular disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s migraine headaches were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to service. 2.The Veteran’s coronary artery disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and a cardiovascular disability, to include coronary artery disease, is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a cardiovascular disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1981 to August 1986. In December 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In June 2020, the Board remanded these matters for further evidentiary development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as migraine headaches and coronary artery disease, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for migraine headaches. The Veteran contends he has had headaches ever since two motor vehicle accidents in service, but he did not seek treatment in service. He testified that in service, he treated his headaches with over the counter type medications. The question for the Board is whether the Veteran has a current disability that began during service, was manifested to a compensable degree within one year of service, was noted in service with continuity of symptomatology since service, or is otherwise etiologically related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of migraine headaches, which is a chronic disease under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309, the preponderance of the evidence weighs against finding that his current migraine headaches began during service, manifested to a compensable degree within one year of service, or is otherwise related to an in-service injury, event, or disease, and continuity of symptomatology has not been established. Service treatment records (STRs) show no report or finding of headaches. Post-service private treatment records showed that in February 2010, the Veteran reported daily headaches that had an onset 4 years prior, and pertinent negatives included head trauma. It was noted that the Veteran’s headaches were mostly likely musculoskeletal related because they began in his neck and radiated to his forehead. It was also noted that an MRI in 2006 showed no abnormalities. In March 2011, the Veteran indicated he was told he had tension headaches. In May 2011, the diagnoses included tension headaches. In June 2012, the Veteran’s headaches were noted to be secondary to obstructive sleep apnea. In December 2012, he was seen for headaches, noted to be likely tension headaches exacerbated by current stressors. In January 2014, the Veteran’s headaches were noted to be associated with hypertension. In September 2016, the assessment included chronic non-intractable headaches, unspecified type, since 2004, described as daily-weekly headaches. In support of his claim, in May 2014, the Veteran submitted a lay statement from a friend, E.J., who reported witnessing the Veteran’s migraines for over twenty years. While the Veteran is competent to report experiencing headache symptoms in and since service, the Board finds his reports of continuity of symptomatology not credible. In that regard, the only evidence that his migraine headaches had its onset during and since service comes from his own statements, which were made in the course of his claim for compensation and are internally inconsistent with his reports in post-service treatment records, including in 2010 when he reported an onset of headaches four years prior. Additionally, post-service records show that his reports of headaches have been attributed to other disabilities. Given the inconsistencies as to the onset of his headaches, the Board finds his claim that he has had migraine headaches in and ever since his service not to be credible. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Having established that the Veteran's migraine headaches did not have its onset in service or within one year of service, the Board turns to the question of whether his migraine headaches are otherwise related to his active service. In that regard, on a VA examination in January 2021, the Veteran reported his headaches started in service in approximately 1983, and that he was diagnosed with migraines in approximately 2000. The examiner rendered a negative opinion, opining it was less likely than not that the Veteran’s current headaches had an onset in or were otherwise related to service, to include his two motor vehicle accidents therein. For rationale, the examiner noted review of the record, and noted there were no new records indicating a diagnosis or treatment for migraines, and no records that the Veteran sought treatment for the condition in service or post-service. The Board finds the January 2021 VA examiner’s opinion to be probative as it was supported with an explanation for the rationale of the opinion and was based on review of the record, an accurate understanding of the medical history, and examination of the Veteran. The examiner also noted the Veteran’s report of headaches starting in service; however, as discussed above, the Board find this report to be unsupported by the record. Moreover, there is no probative evidence contrary to the VA examiner’s opinion. Finally, the Board acknowledges that while the Veteran is competent to report having experienced headache symptoms since service, he is not competent to provide a diagnosis, or determine that these symptoms were manifestations of a certain disability, or determine the probable etiology of such headaches. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 2. Entitlement to service connection for a cardiovascular disability. The Veteran essentially contends he has a cardiovascular condition due to strenuous activities in service. The question for the Board is whether the Veteran has a current cardiovascular disability that began during service, was manifested to a compensable degree within one year of service, was noted in service with continuity of symptomatology since service, or is otherwise related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of coronary artery disease, which is a chronic disease under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309, the preponderance of the evidence weighs against finding that a current cardiovascular disability began during service, manifested to a compensable degree within one year of service, or is otherwise related to an in-service injury, event, or disease, and continuity of symptomatology has not been established. In that regard, STRs show no report of, finding of, or treatment for, a cardiovascular condition in service, other than a notation of hypertension, which the Veteran testified he was not pursuing service connection for. Treatment records from Dr. W-P. show that the Veteran underwent a diagnostic cardiac catheterization in October 2011, after having an abnormal pro-operative stress test. In May 2012, a diagnosis of CAD (coronary artery disease) was noted. At the December 2018 hearing, the Veteran testified that he did not currently have a diagnosed heart disability, but was taking aspirin every day as a preventative measure and receiving treatment from his family doctor What is missing is competent medical evidence linking a current cardiovascular disability to service. With regard to obtaining a VA examination, while there is competent medical evidence of a current disability (CAD), there is no indication in the record, to include no competent evidence (other than the Veteran's lay assertions, which have been vague and non-specific in this regard) showing that he has a current cardiovascular disability related to service. Thus, a VA examination is neither necessary nor warranted. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). VA's obligation to provide a medical examination or opinion is not triggered unless there is an indication that the disability, or persistent or recurrent symptoms of a disability, may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran is competent to report any symptoms he has experienced, he is not competent to provide a diagnosis of a cardiovascular disability, or to determine that these symptoms were manifestations of a cardiovascular disability, or to provide a nexus opinion regarding this issue. The issue is medically complex and requires specialized medical education and the ability to interpret diagnostic medical testing. Therefore, it is outside the competence of the Veteran because the record does not show he has medical training or credentials to make such a determination. Jandreau v. Nicholson, supra. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability and a left knee disability is remanded. The Board notes that in January 2021, a VA examiner rendered a negative opinion regarding the Veteran’s bilateral knee disabilities, but in the rationale noted “still awaiting reports from 3 physicians requested in 8/19” and “(release signed 8/2019) Physician records x 3 providers- Not received as of this exam”. It appears the VA examiner is referring to releases signed in August 2020 for 3 treatment providers named by the Veteran. The record shows that treatment records from these providers were received, some of which provide a more complete picture of the Veteran’s medical history regarding his right and left knees, but were apparently not seen by the VA examiner. In pertinent part, these records show that the Veteran underwent several surgical procedures on the left knee, including in 2000, 2001, and April 2011, followed by a total left knee replacement (TKR) in November 2011. In February 2011, he was seen for bilateral knee pain, and the context was noted as “there was an injury”. In March 2011, it was noted that he reported left knee pain, and that he had a left knee ACL construction 10 years prior. In June 2011, it was noted that he was in a motor vehicle accident and struck his left knee on the dashboard. Further in June 2011, it was noted that he had left knee arthroscopy and ACL reconstruction 11 years prior, as well as another left knee arthroscopy in April 2011. In May 2012, it was noted that his past medical history included 6 arthroscopic surgeries on the left knee. These records also provide information regarding the Veteran’s post-service occupation, including in March 2011, when it was noted that his occupational history included highway construction where he operated a jackhammer, and he was a heavy machine operator, unloading salt from a truck. In August 2011, it was noted that he experienced soreness and stiffness in the left knee when sitting in the cab of the heavy equipment machinery he operates. In September 2011, it was noted that he was employed in construction and sometimes operates a jackhammer or backhoe. In November 2011, after the left TKR, it was noted he was a construction laborer which was a very difficult job that, even if done well, could lead to loosening or early wear. In light of the foregoing, the Board finds the VA examiner’s 2021 opinion to be incomplete as it did not include an opportunity to consider this potentially pertinent evidence. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, an addendum opinion is warranted. The matters are REMANDED for the following action: Forward the claims folder to the January 2021 VA examiner for a supplemental opinion. If that VA examiner is no longer available or is unable to offer the opinions sought, such should be noted for the record and the claims file provided to another appropriate examiner. The examiner should review the claims folder and opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater), any left or right knee disabilities had an onset in, or are otherwise related to, active service, to include his report of two motor vehicle accidents therein. The examiner must explain the rationale for any opinions provided, and, if unable to provide an opinion without resort to speculation, provide an explanation therefor. The examiner also should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder, or whether additional testing or information could be obtained that would lead to a conclusive opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.