Citation Nr: 21027903 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 20-17 383 DATE: May 7, 2021 ORDER Claim to reopen entitlement to service connection for a urinary condition is denied. Claim to reopen entitlement to service connection for migraines is granted. Claim to reopen entitlement to service connection for a mental condition is granted. Entitlement to service connection for migraines is granted. Entitlement to service connection for a psychiatric disability is granted. Entitlement to an effective date earlier than June 9, 2018, for the grant of service connection for right knee patellofemoral pain syndrome, is denied. Entitlement to an effective date earlier than June 9, 2018, for the grant of service connection for left knee patellofemoral pain syndrome, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In an unappealed May 2016 rating decision, the Veteran was denied entitlement to service connection for urinary condition; new and material evidence has not been submitted which was not previously considered by agency decisionmakers and that relates to an unestablished fact necessary to substantiate the claim. 2. In an unappealed May 2016 rating decision, the Veteran was denied entitlement to service connection for migraines and a mental condition; the evidence received since the decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claims. 3. The Veteran's migraines were incurred in service. 4. The Veteran's psychiatric disability is proximately due to his service-connected migraines. 5. There is no evidence of an intent-to-file or claim for service connection for right and left knee patellofemoral pain syndrome prior to June 9, 2018. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a urinary condition. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. New and material evidence has been received, and the claim of entitlement to service connection for migraines is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 3. New and material evidence has been received, and the claim of entitlement to service connection for a mental condition is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 4. The criteria for service connection for migraine headaches have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.303 (2020). 5. The criteria for service connection for a depressive disorder have been met. 38 U.S.C. § 1110 (2018); 38 C.F.R. § 3.310 (2020). 6. The criteria for an effective date earlier than June 9, 2018, for the grant of service connection for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2020). 7. The criteria for an effective date earlier than June 9, 2018, for the grant of service connection for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from May 2007 to May 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2018 and April 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran withdrew his request for a Board hearing and hence, it is deemed withdrawn. Claims to Reopen 1. Service Connection Urinary Condition In a May 2016 rating decision, the RO denied entitlement to service connection for a urinary condition. The RO found that there was no current condition shown to have onset in service or to be linked to service. The Veteran did not appeal. Since the May 2016 rating decision, the Board finds that the additional evidence is not new and material. While the evidence is new, it does not relate to the unestablished elements of the claim. Therefore, as new and material evidence has not been presented, reopening of the claim is not warranted. 2. Service Connection Migraines and a Mental Condition In a May 2016 rating decision, the RO denied entitlement to service connection for migraines and a mental condition. The RO found that neither condition was linked to service. The Veteran did not appeal. Since the May 2016 rating decision, the Board finds that the additional evidence is new and material. Specifically, in February 2020, a private physician found that the Veteran had migraine headaches and a depressive disorder which were related to his active service. As the new evidence relates to the unestablished element of nexus to service, reopening of the claims is warranted. Service Connection 1. Migraines The Veteran has contended that his migraines are related to his active service. Specifically, he reported that his first migraine happened in 2007. He recalled having a migraine in 2008 followed by another in 2010. By 2011, he related that he had migraines three to four times a week. Additionally, the Veteran's sister shared that the Veteran had frequent migraines for several months during service. Service treatment records (STRs) reflected that the Veteran sought treatment for headaches, eventually worsening to "frequent (several times a week) headaches with nausea, vomiting, photo and sonosensitivity, seeing flashing, [and] sometimes waking [him] at night." At the Veteran's April 2013 separation examination, his migraine headaches were noted as frequent and severe, sometimes resulting in nausea, vomiting, dizziness, and loss of vision in one eye. Regardless, the Veteran has reported that he first experienced symptoms associated with migraines while he was in active service and that those symptoms have continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In June 2018, the Veteran was afforded a VA examination. The examiner opined that the Veteran's migraines were less likely than not incurred in or caused by his active service. In this regard, the examiner determined that the Veteran's condition was acute without evidence of chronicity of care. He explained that chronic migraines were defined as fifteen or more headache days per month for more than three months. He stated that the medical evidence failed to show chronicity of care or support a chronic diagnosis. The Board finds that the June 2018 VA examination is inadequate for adjudication purposes. Specifically, the examiner did not address the Veteran's competent and credible statements on the continuity of his migraines since service. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. In February 2020, the Veteran underwent an independent medical evaluation. A private physician opined that the Veteran's migraines were at least as likely as not related to his active service. He stated that the Veteran's migraine headaches had their onset during his active service and continued since that time. The Board finds the February 2020 private medical opinion highly probative and weighs in favor of the Veteran's claim. In this regard, the private physician's rationale is based on the Veteran's lay statements, pertinent medical history and treatment records, and he relied on his own training, knowledge, and expertise. Moreover, the Board notes that lay 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify symptoms related to migraines and report on the chronicity of symptomatology since active service. Moreover, his statements have been found credible. In sum, the Veteran has competently and credibly reported that his migraines had their onset during service and have continued since that time. While there is a VA medical opinion of record against the claim, that opinion is not adequate. Furthermore, the Veteran has currently present migraines which a February 2020 private physician opined was related to his active service. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for migraines is warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Psychiatric Disability The Veteran has asserted that his psychiatric disability is related to his active service. Specifically, he reported that he has anxiety, problems sleeping, and depression after witnessing death and misery serving as a pharmacy technician. Alternatively, he claims that his psychiatric disability is secondary to his service-connected migraines, granted herein. STRs were silent for any complaints, treatment, or diagnosis of a psychiatric disability. There is conflicting evidence as to whether the Veteran reported frequent trouble sleeping and nervous trouble of any sort at his separation examination in April 2013. A review of post-service VA medical center records reflected that the Veteran has a diagnosed psychiatric disability, to specifically include major depressive disorder, dysthymia, bipolar disorder, unspecified anxiety disorder, and/or posttraumatic stress disorder (PTSD). In June 2018, the Veteran was afforded a VA examination followed by an addendum VA medical opinion. The Veteran was diagnosed with bipolar disorder. He did not meet the diagnostic criteria for PTSD. The examiner opined that the Veteran's bipolar disorder was less likely than not incurred in or caused by his active service. She explained that bipolar disorder was not a disorder that resulted from a specific stressor and was widely believed to have a significant genetic component. Furthermore, she found no STR evidence for any mental health concerns or treatment. She determined that it was less likely than not that the Veteran's in-service complaints of nervousness, anxiety, and frequent trouble sleeping were early manifestations of his bipolar disorder. She stated that there was insufficient and conflicting evidence upon his separation from service. The Board finds that the June 2018 VA examination is inadequate for adjudication purposes. Specifically, the examiner did not address the additional psychiatric diagnoses of record. Furthermore, the examiner did not provide a secondary or aggravation opinion as it relates to the Veteran's service-connected migraines. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. In February 2020, the Veteran underwent an independent medical evaluation. A private physician diagnosed the Veteran with depressive disorder due to migraine headaches. He stated, in part, that the Veteran's migraines and depressive disorder were concomitant disease processes that potentiated each other since service. He stated that the Veteran's psychiatric disability would have never manifested if he had not developed migraine headaches during service. Additionally, he cited several articles supporting a strong correlation between migraine headaches and mood disorders. The Board finds the February 2020 private medical opinion highly probative and weighs in favor of the Veteran's service connection claim on a secondary basis. In this regard, the private physician's rationale is based on the Veteran's lay statements, pertinent medical history and treatment records, and he relied on science-based research and his own training, knowledge, and expertise in rendering an opinion. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a psychiatric disability is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. Effective Dates The Veteran has contended that he should be granted an effective date earlier than June 9, 2018, for the grant of entitlement to service connection for right and left knee patellofemoral pain syndrome. The Board has thoroughly reviewed the evidence of record prior to June 9, 2018, to determine if the Veteran filed a claim, an informal claim, or expressed written intent to file a claim for service connection. Though the Veteran originally filed a service connection claim for a bilateral knee condition in January 2016, that claim was finally adjudicated in May 2016. On June 9, 2018, VA received the Veteran's intent-to-file followed by a formal service connection claim for left and right knee condition on July 1, 2018. As the claim was received within one year of receipt of the intent-to-file, the claim may be treated as received on the date of receipt of the intent-to-file. 38 C.F.R. § 3.155(b) (2020). Accordingly, the Board notes that the accurate effective date would be June 9, 2018, which is the later of the date of his intent to file and the date entitlement arose. Therefore, the claim for an earlier effective date is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board finds that the criteria for earlier effective dates for the grant of service connection for right- and left-knee patellofemoral pain syndrome is not warranted. REASONS FOR REMAND 1. Increased Ratings The Veteran was last afforded a VA examination for his service-connected right and left knee patellofemoral pain syndrome in August 2018. In a November 2020 statement, the Veteran asserted that the severity of his symptoms had increased since that time. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his service-connected right and left knee patellofemoral pain syndrome. 2. TDIU The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Hence, a determination on the matter is deferred. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected right and left knee patellofemoral pain syndrome. The examination must do complete range-of-motion studies, including active motion, passive motion, and weight- and non-weight bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, the examiner should provide an estimate of the additional impairment due to flare-ups based on the Veteran's statements and the other evidence of record. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. D. Ware Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.