Citation Nr: 21025459 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 11-11 986 DATE: April 28, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for asthma is granted. Entitlement to an initial rating of at least 30 percent for migraine headaches, throughout the entire period on appeal, is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for migraine headaches, throughout the period on appeal, is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability had its onset in service or is otherwise etiologically related to his active service. 2. The Veteran’s asthma disability had its onset in service or is otherwise etiologically related to his active service. 3. Beginning August 18, 2009, the Veteran has had migraine headaches with prostrating attacks occurring on average once a month over the last several months. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s left knee disability are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for the Veteran’s asthma disability are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an initial rating of at least 30 percent for migraine headaches, throughout the entire period on appeal, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2004 to July 2004, and January 2005 to July 2006, including service in Kuwait/Iraq. He had additional service in the Army National Guard. He is a recipient of a Combat Infantryman Badge. This matter is on appeal from March 2010 (left knee), February 2017 (asthma, hypertension, right elbow), and August 2017 (migraines) rating decisions. The issue of entitlement to service connection for a left knee disability was previously before the Board in November 2015, June 2017, April 2018, and February 2020 when it was remanded for additional development. An April 2020 supplemental statement of the case was most recently issued. Although the Veteran requested a hearing regarding this issue, he subsequently withdrew this request in October 2020. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a left knee disability. The Veteran asserts that his left knee disability began in service. Service treatment records reflect treatment for his left knee several times in March 2004. In an April 2004 treatment record it was noted that the Veteran had left knee pain of about one-week duration. The treating practitioner noted that the Veteran had twisted his knee by stepping on a curb while doing PT. He was diagnosed with left MCL sprain. The Veteran continued to seek treatment for his left knee in May 2004 and June 2004. In a July 2004 “Sick Slip” it was noted that the Veteran had an injury, diagnosed as a left knee MCL strain. He was ordered to physical therapy. Post service records include an August 2008 VA treatment record that noted that the Veteran had a left knee injury in the past, history of MCL tear, rule out meniscus and/or mild ACL tear. It was noted that his symptoms were stable. A September 2008 MRI of the knee revealed an oblique tear of the posterior horn of the medial meniscus. A physical profile, completed in December 2008, associated with his Army National Guard service, noted his knee pain and that he did not meet the criteria for retention. He was subsequently separated from his Guard service. In this case, there is no dispute that Veteran is competent to report symptoms of knee pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Board finds the Veteran’s statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). In this regard, he has consistently provided a history of in-service onset of a knee disorder. A review of the Veteran’s service treatment records confirms these contentions. Moreover, the Veteran has submitted numerous statements attesting to his longstanding left knee problems since service. His statements have remained consistent throughout the record. The medical records confirm his allegations of continued left knee problems. The Board notes that there are numerous inadequate VA opinions of record. A negative February 2011 was initially provided. The Board, in a November 2015 Remand, noted inadequacies in this examination and remanded for an additional opinion. As such, little probative value is accorded to this examination. The Veteran was next accorded a June 2016 VA examination and opinion regarding his left knee. In a June 2017 Remand, the Board noted inadequacies in this new examination, and it is therefore accorded little probative value. The Veteran subsequently underwent a September 2017 VA examination; an opinion was additionally provided. The Board, in an April 2018 Remand, once again found inadequacies in the newest examination and opinion, and little probative value is once again accorded to this negative etiological opinion. A September 2018 VA opinion was obtained; the Board, in a February 2020 Remand, found inadequacies in this opinion and it too is accorded little probative value. Most recently, a March 2020 VA opinion was obtained. The Board finds that this negative etiological opinion is to be accorded little probative value. Although the examiner provides what seems to be a “positive” opinion, at first noting that the Veteran’s left knee condition “is likely as not” due to service, the examiner then supports her opinion with a negative finding. While VA could undertake additional development with respect to his disability (to obtain an additional etiological opinion), based on the fact that the Veteran was treated for left knee issues in service, continued to complain of similar symptomatology shortly after service and was subsequently deemed unfit for retention in the National Guard due to these continuing knee issues, and as he continues to suffer from problems associated with left knee, the Board will resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The nature and extent of the problem related to service is not before the Board. Accordingly, the Board concludes that a grant of service connection for a left knee disability is warranted. 2. Entitlement to service connection for asthma. The Veteran contends that his asthma is the result of toxic exposures from his service in Southwest Asia during the Persian Gulf War. See October 2020 Informal Hearing Presentation. Service treatment records do not specifically note treatment for asthma. However, in-service records do note allegations by the Veteran of exposure to environmental pollutants, including exposure to smoke from burning trash or feces. See May 2006 Post-Deployment Health Assessment. The evidence reflects that the Veteran was diagnosed with asthma around December 2008. A physical profile completed in December 2008, associated with his Army National Guard service, noted his breathing problems and that he did not meet the criteria for retention. He was subsequently separated from his Guard service. Although a January 2017 VA examination and opinion were obtained, the VA examiner did not comment on the Veteran’s alleged exposure to smoke in service and its effect, if any, on his current diagnosis. Little probative value is therefore accorded to this examination. Supporting the Veteran’s claim is a February 2016 note from the Veteran’s VA physician in pulmonary and critical care. She noted that the Veteran has chronic dyspnea, cough, intermittent nasal congestion that developed while deployed in Iraq where he had significant burn pit exposure. She noted that his symptoms are consistent with asthma. The physician stated that the Veteran has hyperinflation on chest X-ray and some thickened airways on CT scan that would support this. In a January 2017 VA treatment note it was noted that the Veteran had asthma and by history, could be related to burn pit exposure. Resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current asthma and service. Accordingly, the Board concludes that a grant of service connection for asthma is warranted. The nature and extent of the disorder is not before the Board at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 3. Entitlement to an initial rating for migraine headaches in excess of 30 percent prior to August 19, 2011, and 10 percent thereafter. The Veteran is currently rated at 30 percent for his migraine headaches beginning August 18, 2009 and prior to August 19, 2011, and at 10 percent since August 19, 2011. The Board finds that at a minimum, the Veteran is entitled to a 30 percent rating, throughout the entire period on appeal, for his service-connected migraine headaches. A 30 percent rating for migraines requires characteristic prostrating attacks occurring on an average of once a month over the last several months. Diagnostic Code 8100. The Board has reviewed extensive VA treatment records throughout the lengthy period on appeal. Treatment records in February 2009 note migraines. Treatment records throughout 2010 reflect chronic migraines and the use of various medications to try and treat his symptoms. Although treatment records reflect some improvement of his symptoms, through the use of a variety of migraine medications, the Veteran has continued to experience chronic migraines throughout the period on appeal. Further, in addition to his long-standing migraines, the Veteran began reporting photophobia and hearing sensitivity. See July 2014 and February 2015 VA Treatment Records. Treatment records also show treatment by vision professionals to provide the Veteran with special glasses to try and combat his migraine symptoms. See December 2015 VA Treatment Record. In an April 2013 VA treatment record the Veteran reported some incoordination in association with his migraines, which prevents him from driving. In an October 2016 VA treatment visit the Veteran reported that he was waking up from his sleep with headaches and used to have a gun in hand to kill himself, presumably because of how bad his symptoms were. There is only one VA examination of record during the period on appeal. In a June 2016 VA examination the Veteran reported sensitivity to light, sensitivity to sound, and head pain typically lasting more than 2 days. Although the VA examiner noted that the Veteran did not have characteristic prostrating attacks, no rationale was provided or further explanation. In an October 2020 statement from his representative, it was noted that the gravity of the Veteran’s migraine headaches cannot be overstated. It was reported that the Veteran experiences constant migraine headaches that can last nearly a week, render him unable to get out of bed, that he has considered going to the emergency room but cannot drive during those times and have has even looked for his firearm when the pain was severe. The Board finds that the evidence is in at least equipoise as to whether the Veteran has had characteristic prostrating attacks occurring on an average of at least once a month over the last several months for the entire period on appeal. Accordingly, a rating of at least 30 percent is warranted for the entire period beginning August 18, 2009 (not just prior to August 19, 2011 as currently rated). The Board remands below whether a rating in excess of 30 percent is warranted at any point during the period on appeal. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for migraine headaches, throughout the period on appeal, is remanded. As noted above, there is only a June 2016 VA examination of record. The Board finds that this examination does not include an opinion as to the economic inadaptability- one of the criteria for rating in excess of 30 percent. Additionally, treatment records and the Veteran’s contentions, in the October 2020 representative statement, reflect that his condition may have worsened since the last examination. The Board finds that an additional examination is needed to determine whether or not a rating in excess of 30 percent is warranted for his service-connected migraine headaches during the entire period on appeal. As such, a remand for a new examination is needed. 2. Entitlement to service connection for a right elbow disability is remanded. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD is remanded. The Veteran asserts that he has a right elbow disability related to service. A March 2011 VA treatment record notes ongoing right elbow symptomatology of 4-5 years, placing his initial right elbow symptoms towards the end of his service, or shortly thereafter. The Veteran has since been diagnosed with epicondylitis. See March 2011 VA treatment record. With respect to his claim for entitlement to service connection for hypertension, the Veteran, in an October 2020 representative statement, cited to medical literature which suggests an association between PTSD and hypertension. VA examinations have not yet been provided with respect to either his right elbow or hypertension. The Board finds that a remand for VA examinations and opinions regarding the claims of service connection is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. Afford the Veteran a VA examination to assess the current severity of his migraine headache disability. The examiner must express an opinion, with reasons, as to whether there is severe economic inadaptability. The Veteran’s claims file should be provided to the examiner. The examiner must obtain a detailed clinical history from the Veteran and must note all pertinent pathology found on examination in the report of the evaluation. Any testing deemed necessary should be performed. The examiner must provide a full description of all signs and symptoms necessary for evaluating Veteran’s disability under the rating criteria. 2. Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of his right elbow disability and hypertension. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with such examination, and the examiner must indicate that such review occurred. The examiner should provide well-reasoned opinions on: Right Elbow Disability Whether it is at least as likely as not (a probability of 50 percent or greater) that a right elbow disability had its clinical onset during the Veteran’s active duty service or is otherwise etiologically related to his active service. Hypertension (a) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s hypertension was caused by his service-connected PTSD. (b) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s hypertension was aggravated by his service-connected PTSD. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any of the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.