Citation Nr: 21028679 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-02 211 DATE: May 11, 2021 ORDER Service connection for a headache disability diagnosed as tension headaches is granted. Service connection for a bilateral hip disability diagnosed as trochanteric bursitis is granted. REMANDED The issue of entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The Veteran's headache and bilateral hip disabilities were incurred during periods of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a bilateral hip disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1993 to October 1999, and from May 2005 to June 2006. This matter is before the Board following her appeal of a July 2014 rating decision. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. 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. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for 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 will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. A. Headaches Following a review of the record, the Board finds that service connection for a headache disability is warranted. Initially, headaches are classified as an "other organic disease of the nervous system," and service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service, or if the Veteran displays continuity of symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). When a condition may be diagnosed by its unique and readily identifiable features, as is the case with headaches, the presence of the disorder is not a medical determination and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (stating that a veteran is competent to report on all things of which he has personal knowledge derived from his own senses). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr, 6 Vet. App. at 310. If it does, such testimony is sufficient to establish service connection. Id. Here, the available service treatment records (STRs) show that on her April 1993 entrance examination, the Veteran reported a history of mild occasional headaches prior to service for which she took Tylenol, but no headache disability was reported or found. Thereafter, STRs show that the Veteran sought treatment for frequent and severe headaches. For example, in June 1998, the Veteran reported a history of constant pounding headaches for the past month-and-a-half that occurred four times per week and lasted up to half-a-day. The assessment was tension headaches. The Veteran again reported headaches that were occasionally described as distressing in April 1999, and during her July 1999 separation examination, the Veteran continued to report frequent and severe headaches that were controlled by Robaxin. Post-service VA treatment records show continued treatment and medication prescribed for tension headaches, including in November 2000, December 2003, November 2004, and February 2005. The Veteran again reported headaches during her second period of active duty, indicating on a May 2006 post-deployment questionnaire that she had current headaches and headaches during her deployment. VA treatment notes thereafter document ongoing treatment for tension headaches through August 2019, as well as her continued reports of headaches that began in service, including during July 2009 and August 2013 VA treatment. The foregoing evidence supports the onset of a chronic headache disability in service. The Board is cognizant that a May 2014 VA examiner opined that the Veteran's headaches clearly existed prior to service and were not aggravated by service. However, the Board finds the opinion flawed and inadequate. In this regard, the May 2014 VA examiner's finding that headaches "clearly" existed prior to service was based on the Veteran checking the corresponding box for a history of frequent and severe headaches on her April 1993 enlistment examination. However, the VA examiner failed to account for the entrance examiner's hand-written description of the Veteran's pre-service headaches as actually being mild and occasional in nature. Notably, there was no option on the April 1993 Report of Medical History for the Veteran to select a history of mild or occasional headaches, nor is there anything to suggest that the headaches experienced by the Veteran prior to service were anything other than normal headaches that an average person may experience from time to time. Indeed, the Veteran testified in January 2021 that prior to service she did not have a headache disability, but rather had experienced a "regular" or normal headache at some point in her life. The examiner also failed to account for the Veteran's April 1999 in-service report of distressing headaches recounting the Veteran's medical history. Given the foregoing, the May 2014 opinion is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal). Thus, given the competent and credible medical and lay testimony establishing that the Veteran experiences chronic headaches that began in service, the Board resolves all doubt in favor of the Veteran and finds that service connection for a headache disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Bilateral Hip Disability The Board similarly finds that service connection for a bilateral hip disability is warranted, as the most probative evidence places the onset of the disability during the Veteran's second period of active service from May 2005 to June 2006. In this regard, STRs show that, upon returning from her deployment to Afghanistan, the Veteran sought treatment in service for hip pain. She placed the onset of hip pain around October 2005, and was treated in service in December 2005, January 2006, February 2006, and April 2006. Of note, in seeking Emergency Room (ER) treatment for right hip pain in service in April 2006, the Veteran reported that prior to her deployment she had performed sedentary work but was very active in the theater. During the ER visit, she was found to have restricted motion in the right hip and was assessed to have bursitis. Post service, the clinical evidence shows ongoing treatment for bilateral hip bursitis from December 2006, just months after the Veteran's separation, and a September 2009 VA examiner confirmed a diagnosis of bursitis in both hips. VA treatment notes dating as recently as August 2019 show continued hip complaints and treatment for bursitis. The foregoing evidence supports the onset of a chronic bilateral hip disability diagnosed as bursitis in service, consistent with the Veteran's competent and credible lay testimony during her January 2021 Board hearing. Significantly, there is no probative medical evidence to the contrary. While a September 2009 VA examiner opined that the Veteran's bilateral bursitis was a natural-occurring phenomenon, he also found that any opinion regarding a nexus to service would be speculative, did not cite to or indicate any awareness of the Veteran's chronic hip complaints during her second period of active duty, and did not offer any opinion as to whether the bursitis first manifested in service, as is indicated by the STRs and post-service clinical evidence. The only other opinion of record related to the hips is a November 2017 VA opinion that considered only whether the hip bursitis was secondary to a left knee disability; thus, it has no bearing on the issue of direct service connection. As a final matter, the Board acknowledges that the available STRs reference either hip pain, generally, or right hip pain; they do not show treatment specific to the left hip. Nevertheless, the Veteran has competently reported that she was found to have bursitis in both hips in service, consistent with her December 2006 report of bilateral bursitis in furtherance of VA treatment. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a lay person is competent to report a contemporaneous diagnosis provided by a physician). Additionally, it appears that some STRs may be outstanding, as a December 2005 treatment for hip pain notes that the visit was the third session of OMT (osteopathic manipulative treatment or osteopathic manipulation), and there are no apparent records from the first and second sessions. In any event, given the competent and credible medical and lay testimony establishing that the Veteran experiences bilateral hip bursitis that began in service, the Board resolves all doubt in favor of the Veteran and finds that service connection for a bilateral hip disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Service Connection for a Right Knee Disability The Boards finds that, although a nexus opinion regarding the right knee was obtained in November 2017, remand of the right knee service claim is nevertheless necessary because the opinion failed to address aggravation, and because the Veteran has now also been service connected for her bilateral hip disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013). In this regard, in August 2019, it was noted that the Veteran continued with pain in the bilateral hip and left knee "now off loading to rt knee as well." She was also observed to have a mild limp with her gait at that time and was again noted to have "lt knee pain, now with off-loading, pain into rt knee." Such evidence, which post-dates the November 2017 examination and suggests that the Veteran's service-connected hip and left knee disabilities do affect her right knee, should be addressed by an examiner. Parenthetically, the Board notes that the Court of Appeals for Veterans Claims has held that secondary service connection does not require "permanent" worsening of the claimed secondary condition. See Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). The Board also finds that a direct opinion is also necessary, despite the Veteran's belief that her right knee disability is only secondary to her left knee. In this regard, STRs show that the Veteran was seen in September 1993 for swelling and pain the right knee. She was then seen again from April 1997 to June 1997 for right knee and, in addition to diagnoses of right biceps femoris strain, proximal gastrocnemius strain, and hamstring tendonitis, an assessment of right knee patellofemoral pain syndrome was also noted. The November 2017 also diagnosed the Veteran's right knee disability as patellofemoral syndrome. Thus, the Board finds that an addendum opinion is necessary to determine whether the Veteran's current right knee patellofemoral syndrome is related to the patellofemoral pain syndrome documented in the STRs. Parenthetically, the Board notes that there appears to be an incurrent injury to the right knee, as indicated by a March 2001 VA treatment note documenting that the Veteran had recent trauma to the right knee related to a November 2000 motor vehicle accident (MVA). Nevertheless, the evidence in the STRs shows the existence of right knee symptoms and, in particular, patellofemoral pain syndrome, prior to the post-service MVA. Given the foregoing, remand is necessary for an addendum opinion regarding the Veteran's right knee disability on both direct and secondary bases. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matters are REMANDED for the following action: Forward the claims file, including a copy of this REMAND, to a clinician to provide an addendum opinion regarding the etiology of the Veteran's right knee disability. If a new examination is deemed necessary, one should be scheduled. The clinician should respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's current right knee disability was incurred in, first manifested in, or is otherwise related to service? In providing the foregoing opinion, the examiner should address the right knee treatment during the Veteran's first period of service, including for pain and swelling in September 1993, and for right biceps femoris strain, proximal gastrocnemius strain, hamstring tendonitis, and patellofemoral pain syndrome between April 1997 and June 1997. (b.) If not directly related to service, is it at least as likely as not (50 percent or greater probability) that the right knee disability was caused by service-connected disability, alone or in combination, to include left knee and/or bilateral hip disabilities? In providing the foregoing opinion, the examiner should address the clinical evidence, including August 2019 VA treatment notes, indicating that the Veteran had a slight limp and to be off-loading and have pain into the right knee. (c.) Is it at least as likely as not that the Veteran's right knee disability has been aggravated by a service-connected disability, alone or in combination, to include left knee and/or bilateral hip disabilities? In providing the foregoing opinion, the examiner should address the clinical evidence, including August 2019 VA treatment notes, indicating that the Veteran had a slight limp and to be off-loading and have pain into the right knee. The examiner is informed that permanent aggravation is not required, and that any increase/aggravation is sufficient. (d.) A complete rationale must be provided for any opinions expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why this is so, specifically addressing whether the inability to provide an opinion stems from not having sufficient information/evidence or the limits of medical knowledge. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.