Citation Nr: 21031108 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 09-36 661 DATE: May 20, 2021 ORDER Service connection for a headache disorder to include muscle contracture and migraine headaches is granted. The claim for service connection for diabetes mellitus, including as the result of service-connected disabilities, is denied. FINDINGS OF FACT 1. A headache disorder had its onset during active service. 2. Diabetes mellitus is not the result of active service, or any incident therein, nor is it the secondary result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder, to include muscle contracture and migraine headaches, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for diabetes mellitus, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1987 to November 2007, retiring after 20 years of service. These claims come before the Board of Veterans Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In July 2015 the Veteran testified before a Veterans Law Judge who is no longer at the Board. In September 2018, the Veteran was informed of this and given an opportunity to testify as to these issues before a Veterans Law Judge who would participate in the decision. In correspondence received in October 2018, the Veteran responded that he did not wish to appear at another Board hearing concerning the issues addressed herein. A transcript of the July 2015 hearing is associated with claims file. This case has been before the Board previously, in March 2016, February 2019, and February 2021, when additional VA examinations and opinions were requested. The requested development having been completed; the claim is now again before the Board. The Board finds that the agency of original jurisdiction (AOJ) has fulfilled the duty to notify and assist the Veteran in substantiating his claim for VA benefits, as prescribed in 38 U.S.C. §§ 5100, 5102, 5103, 5109A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). All identified and relevant records have been obtained or appropriate efforts to secure them have been undertaken. Adequate examinations considering the evidence of record and including appropriate findings and rationales for these conditions were afforded the Veteran, including pursuant to the 2016, 2019 and 2021 remands. 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 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, 1131. 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, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). "[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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. a) Headache Disorder The Veteran argues that his diagnosed headache disorder had its onset during active service. In the alternative, he argues his headache disorder is the result of his service-connected hypertension and should therefore be service connected. After review of the record, the Board finds the medical evidence supports his contentions. There is no dispute that the Veteran is diagnosed with a headache disorder. VA examinations show the Veteran was diagnosed with a muscle contraction headache, and with migraine and migraine variant headaches. In addition, the Veteran's attestations under oath that his headaches had their onset during active service is sufficient evidence of headaches occurring during active service. However, there is dispute among VA examiners as to whether there is a causal nexus between the diagnosed headache disorder and active service. A VA examination conducted in May 2008 shows a diagnosis of muscle contracture headaches within a year following the Veteran's discharge from active service and noted the Veteran's report of headaches beginning during active service in the 1990s, with increasing symptoms of nausea and dizziness. The April 2017 VA examiner also dated the onset of migraine and migraine variant headaches during active service, in 2003. The VA examiner observed the Veteran described a history of intense pounding with pain, light and noise sensitivity, and dizziness. VA medical opinions provided in April 2014 and May 2019 with a March 2021 addendum are in the negative. The 2014 VA examiner opined that it is less likely than not that the Veteran's headache syndrome is a continuation of the complaints of headache in service. The 2014 VA examiner's rationale is that service treatment records did not show any complaint or report of headaches or ongoing chronic headache condition. The 2019 and 2021 examiners concluded the claimed headache disorder is less likely than not the result of active service. The examiners explained that there are no notations in the service records of headaches or migraine headaches. In analyzing these examinations, the Board observes the 2014 and 2019/2021 VA examiners did not discuss the Veteran's lay statements and testimony under oath in 2015 of headaches during active service. Rather, both examiners stated, without further explanation, their rationale was that treatment records did not show any reports of or treatment for headaches during active service. The Veteran is competent to report he experienced headaches during active service which felt as though his head was pounding and throbbing, with light and sound sensitivity and dizziness, and that these symptoms continued after his discharge to the present. These symptoms are capable of lay observation, and the Board further observes the Veteran has been consistent in the description of his headaches throughout the appeal. The Board therefore finds the Veteran's testimony and statements to be credible. Thus, because the 2014 and 2019/2021 VA examiner's opinions did not discuss without explanation the Veteran's competent lay statements about his headaches during active service and merely found that the absence of complaints or treatment for same in service did not exit, these opinions cannot be probative. In contrast, the 2008 VA examiner's diagnoses of muscle contracture headache disorder in 2008, within a year after the Veteran's discharge, and the 2017 VA examiner's opinion that diagnosed migraine and variant migraine headache disorder which had its onset during active service supports the claim for direct service connection of a headache disorder. Moreover, the Veteran's attestations under oath that his headaches have persisted from active duty to the present lends to the chronicity of the headache disorder. There are no other findings, opinions, or statements against the grant of service connection for a headache disorder. In summary, the competent medical evidence and consistent credible lay evidence establishes the diagnosis of a headache disorder to include muscle contracture headaches and migraine and migrant variant headaches, which had its onset during active service and has been continuously present from then to the present. Accordingly, service connection for a headache disorder to include muscle contracture and migraine and migraine variant headaches is warranted. The matter of secondary service connection need not be discussed, as the record supports the grant of direct service connection. b) Diabetes Mellitus The Veteran argues that his diagnosed diabetes mellitus is the result of active service. He testified and stated that his blood glucose levels were high during active service, and his treating VA physician told him that his diabetes mellitus was associated with his inservice high blood sugar levels. In the alternative, he argues his diabetes mellitus is the result of or was aggravated by disabilities for which he is or had claimed service connection, including hypertension and sleep apnea. On these bases, he contends that service connection should be granted for diabetes mellitus. The Board finds, however, that the medical evidence does not support his contentions. There is no dispute that the Veteran is diagnosed with diabetes mellitus. The June 2017 VA examination report shows the Veteran is diagnosed with diabetes mellitus. In addition, there is no dispute as to the Veteran's glucose levels during active service. Service records show serum glucose levels of 105 in 2006, and 105, 124 and 121 in 2007. It is further observed the Veteran is service connected for hypertension in 2007, effective the day after his discharge from active service. He is also service connection for sleep apnea, effective in 2008. However, there is dispute as to whether the diabetes mellitus is causally related to his active service, or to his service-connected disabilities. A VA examination conducted in February 2008 found normal glucose levels, establishing the Veteran did not then have diabetes mellitus. In fact, it is not until 2013 that the medical evidence shows the Veteran is diagnosed with diabetes mellitus. Moreover, the 2017 VA examiner, after review of the medical evidence, opined it was less likely than not the Veteran's diabetes mellitus was caused by his military service. The VA examiner explained that review of the records did not find impaired fasting glucose in service. Rather, the first mention of impaired fasting glucose was not until 2009, more than one year following the Veteran's discharge from active service. Additional VA records review examination with opinion was conducted in May 2019, with an addendum in March 2021. The 2019/2021 VA examiners confirmed it was less likely than not that the Veteran's diabetes mellitus had its onset during active service or was otherwise related to active service. As rationale, the 2019 VA examiner explained that serum glucose levels of 105 in June 2006 and 105, 124 and 121 obtained in February, April, and June 2007, respectively, during active duty were not indicative of diabetes mellitus. First, the 105 levels were within normal range. Second, the three higher levels obtained in 2007 were not obtained in a fasting state. Third, the service treatment records show the fourth test, conducted in July 2007, was a fasting glucose test and measured normal at 104. This test, the VA examiner observed, was subsequent to the other reported tests. In addition, a glucose tolerance test performed on the same day as the fasting glucose test in July 2007 revealed a two-hour plasma glucose of 93. The July 2007 fasting glucose and two-hour plasma tests were inconsistent with a diagnosis of diabetes mellitus. Thus, the VA examiner concluded the medical evidence during active service did not meet the criteria for a diagnosis of diabetes mellitus. In the 2021 addendum, the VA examiner re-iterated that the medical evidence did not support a diagnosis of diabetes mellitus until 2013. The VA examiner demonstrated close review of the record in annotating the glucose tests, type of tests, and test results during the Veteran's active service. The Board notes that the present claim is distinguished from the claim for a headache disorder, in that the diagnosis of diabetes mellitus relies on the interpretation of clinical tests. The Veteran has testified he was told he had impaired glucose levels during active service, and points to elevated blood sugar levels during active service as evidence that his diabetes mellitus had its onset during active service. However, while the Veteran is competent to state what his treating physician told him, what he believed to be heightened levels of glucose, and other symptoms he believed related to diabetes mellitus, the record does not show and he has not claimed to be, a medical professional, capable of interpreting clinical tests to diagnose diabetes mellitus. Thus, his testimony and statements, though credible, cannot be probative as to this issue. Accordingly, absent a finding that the diagnosed diabetes mellitus had its onset during or is the result of active service, direct service connection cannot be warranted. Concerning secondary service connection, the Veteran argues that his service-connected disabilities, to include hypertension and sleep apnea, had caused or aggravated his claimed diabetes mellitus. However, the medical evidence does not support this argument. The 2021 VA examiner opined that it was less likely than not that the diabetes mellitus diagnosed in 2013 was caused or aggravated by the service-connected disabilities. In the analysis, the VA examiner documented close review of the claims file, and extensive review of the medical literature on diabetes mellitus. The VA examiner explained that no basis upon which to attribute the claimed diabetes mellitus to the service-connected disabilities; and there was no medical evidence that suggested the service-connected disabilities had caused or aggravated the claimed diabetes mellitus beyond the natural progression of the disease. As rationale, the VA examiner pointed to extensive medical research which did not recognize any of the Veteran's service-connected disabilities as a cause of diabetes mellitus. In addition, the VA examiner found no aggravation of the diabetes mellitus beyond the nature progression of the disease that could be attributed to the service-connected disabilities. The Board finds the 2019/2021 VA examiner's opinions to be supported by demonstrated thorough and accurate review of the claims file and by extensive review of the medical literature concerning diabetes mellitus. It is therefore of probative value. There are no other findings, opinions or statements supporting the grant of service connection for diabetes mellitus as directly related to active service, having been diagnosed during active service or within the one year period following discharge, or as the result of a service-connected disability or of aggravation by a service-connected disability, including hypertension or sleep apnea. Absent a finding that the diabetes mellitus is the result of active service, was diagnosed during active service or within a year following discharge therefrom or is the result of a service-connected disability or aggravation by a service-connected disability, service connection cannot be granted. In summary, the Veteran's testimony and statements of high glucose levels during active service, although credible, are outweighed by the competent medical evidence of record, which establishes that diabetes mellitus was not clinical diagnosed until 2013, many years after the Veteran was discharged from active service in 2007. The competent and probative medical evidence further establishes that the claimed diabetes mellitus is not the result of active service or of service-connected disabilities, including under the theory of aggravation. Accordingly, service-connected for diabetes mellitus is not warranted on any basis. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.