Citation Nr: 21027857 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-41 537 DATE: May 7, 2021 ORDER Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. Service connection for migraines is granted. REMANDED Service connection for a sleep disorder, to include sleep apnea and insomnia, is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran's favor, his left knee disability was incurred in service. 2. Resolving any reasonable doubt in the Veteran's favor, his right knee disability was incurred in service. 3. Resolving any reasonable doubt in the Veteran's favor, he has experienced continuous migraine symptomatology since service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for migraines have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2009 to April 2012. This case returns to the Board of Veterans' Appeals (Board) after remands to the agency of original jurisdiction in May 2018 and August 2020. Service Connection The Veteran seeks service connection for a bilateral knee disability, residuals of heat stroke, including migraines, and a sleep disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection may be established for certain chronic diseases, including organic diseases of the nervous system, like migraines, which manifest to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. When such a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. Knees The Veteran asserts that his knee problems started during service. He attributes them to the numerous jumps he completed as a paratrooper, as well as ruck marches and runs. After careful review, the Board finds that service connection is warranted. There is no mention of any knee injuries, complaints, or treatment in the Veteran's service treatment records. At his March 2018 Board hearing, he testified that he reported his knee issues to a physician assistant while in service. However, the physician assistant reportedly told him to "take some Advil [and] move on," and his complaints went undocumented. He also testified that he sought post-service treatment a few months after separation. In January 2014, "Dr. L.S.," a primary care provider at Womack Army Medical Center, provided a nexus opinion in support of the Veteran's claim. Dr. L.S. wrote that his bilateral knee pain began while on active duty, and is more likely than not related to ruck marching requirements and the Veteran's airborne status, noting that he had over 50 jumps in a three-year period. A March 2020 VA examiner diagnosed the Veteran with patellofemoral pain syndrome in both knees, but concluded that this disability was not related to service. The Board remanded for an addendum opinion because the March 2020 examiner improperly relied on a lack of evidence in the service treatment records, while failing to address Dr. L.S.'s favorable opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). On remand, a September 2020 examiner found that the Veteran likely had an "acute overuse sprain with service activities." This examiner, however, "was unable to note a chronic diagnosed knee disability until many years after separation from service." The Board finds that the September 2020 opinion, like the previous VA opinion, is largely based on the absence of a contemporaneous knee diagnosis in the Veteran's medical records. Furthermore, despite acknowledging Dr. L.S.'s opinion, the September 2020 examiner appears to have overlooked the fact that Dr. L.S. linked the Veteran's current bilateral knee pain to service in January 2014nearly two years after separation. Dr. L.S.'s opinion addresses ongoing knee problems, rather than acute sprain in service, as the September 2020 VA opinion suggests. On the whole, the Board finds Dr. L.S.'s opinion at least as probative as the September 2020 examiner's opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (an opinion is probative when it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data). Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that his left and right knee disabilities were incurred in service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection is granted. Migraines The Veteran contends that he experiences residual effects of in-service heat stroke, including migraine headaches, dizziness, fatigue, and seeing spots. The Board finds that service connection for migraines is warranted based on continuity of symptomatology. Service treatment records confirm that the Veteran was hospitalized for heat stroke in September 2011, after collapsing and losing consciousness during a 12-mile ruck march. Hospital treatment involved intubation and intravenous saline solution. After his discharge from the hospital, he was monitored according to heat injury profiling protocols. He reported feeling drained and myalgias on the right side of his neck. By November 2011, he was cleared for a return to unrestricted duty and considered medically deployable. The available records do not document any complaints of headaches or other heat stroke residuals prior to separation. In January 2014, Dr. L.S. indicated that the Veteran had residual symptoms related to heat stroke, which are aggravated by physical activity and extreme temperatures. However, Dr. L.S. did not specify what those symptoms are. As a result, the 2014 nexus opinion has limited probative value with respect to this claim. Nieves-Rodriguez, 22 Vet. App. at 304. Post-service medical records show complaints of persistent headaches since at least 2018. In September 2019, a VA neurologist evaluated the Veteran for severe headaches in response to heat, pressure changes, and light. The neurologist determined that these were likely migraines and prescribed magnesium oxide. VA ophthalmology records from October 2019 reflect that the Veteran has chronic "floaters" associated with his headaches. At a March 2020 VA examination, the Veteran reported that he continued to experience headaches, lightheadedness and dizziness triggered by heat following the 2011 heat stroke. The March 2020 examiner concluded that the Veteran had complete resolution of heat stroke without sequelae, finding insufficient medical documentation or evidence of chronicity of care to establish a nexus. The Board remanded for clarification as to whether the Veteran's reported headaches are a residual of heat stroke. On remand, the September 2020 examiner determined that the headaches and other reported symptoms are not heat stroke residuals, based on a review of medical literature. Specifically, the examiner found no peer-reviewed literature to support the contention that a past history of resolved heat stroke would cause recurrent heat sensitivity and headaches. The Board finds this negative nexus opinion to be probative. Nieves-Rodriguez, 22 Vet. App. at 304. While the medical evidence does not establish a nexus with the 2011 heat stroke, the Board finds sufficient support for service connection based on continuity of migraine symptomatology. See Walker, 708 F.3d at 1339 (describing the more relaxed evidentiary standard for service connection for certain chronic diseases). As noted above, a VA neurologist eventually diagnosed the Veteran with migraines, a chronic disease of the nervous system under 38 C.F.R. § 3.309(a). The Veteran has repeatedly stated that he continued to experience heat-triggered symptoms, including migraines or headaches, following the 2011 heat stroke. See e.g. July 2020 correspondence. As a layperson, he is competent to report the onset of these subjective symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His statements to this effect are credible and highly probative. Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds that he has experienced continuous migraine symptomatology since service. Gilbert, 1 Vet. App. at 53. Service connection for migraines is granted. REASONS FOR REMAND Sleep Disorder Although the Veteran originally filed a claim for sleep apnea, he has since clarified that the claim includes other forms of sleep impairment, such as insomnia. See e.g. October 2013 notice of disagreement. In August 2020, the Board remanded for a new opinion on whether it is at least as likely as not that any sleep disorder, diagnosed at any time during the course of the appeal, had its onset in or is etiologically related to the Veteran's service. Like previous examiners, the September 2020 examiner confirmed that the Veteran has not been diagnosed with sleep apnea. (The Veteran himself denied having a sleep apnea diagnosis at his hearing.) The examiner instead found that he had symptoms of insomnia, which were less likely than not incurred in or caused by service. The examiner stated that the medical records on file do not provide a specific etiology for the Veteran's insomnia, and that "the exact underlying cause has not been determined yet." The Board finds the September 2020 opinion on insomnia inadequate for two reasons. First, the examiner did not directly address whether the onset of the Veteran's insomnia occurred in service, as the Board instructed. The examiner did not discuss evidence pertinent to this question, such as the Veteran's testimony that he began experiencing sleep problems shortly after entering service, or medical records showing a diagnosis of "possible insomnia" in July 2012, three months after separation. Second, the September 2020 examiner's bare rationale on etiology is both inconclusive and inconsistent with the stated conclusion that insomnia is less likely than not related to service. As the Board explained in its remand, the phrase "at least as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner's rationale here that the exact cause of the Veteran's insomnia is unknowndoes not sufficiently explain whether insomnia is at least as likely as not related to service. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion); see also Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (an examiner must clearly indicate precisely what facts cannot be determined that would allow for a more conclusive opinion). Another remand is thus necessary to ensure compliance with the Board's previous instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). On remand, the examiner must directly address whether the onset of insomnia occurred in service, provide a complete rationale regarding etiology, and discuss the pertinent lay and medical evidence of record. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Obtain an addendum opinion on the Veteran's claimed sleep disorder, to include insomnia. Schedule the Veteran for another examination only if the examiner deems it necessary to render the requested opinion. After reviewing the claims file, including this remand, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that any sleep disorder, diagnosed at any time during the course of the claim or appeal, had its onset in or is etiologically related to the Veteran's service. At a minimum, the examiner's opinion must reflect consideration of the following evidence: the Veteran's testimony that he began experiencing sleep problems shortly after entering service; the medical records showing a diagnosis of "possible insomnia" in July 2012; and Dr. L.S.'s January 2014 medical opinion. 2. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the Veteran's claim. If it remains denied, issue a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.