Citation Nr: 21031374 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-43 668 DATE: May 21, 2021 ORDER Entitlement to service connection for migraine headache is granted. Entitlement to service connection for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for left and right elbow disability is remanded. Entitlement to service connection for left and right knee disability is remanded. FINDINGS OF FACT 1. The Veteran experienced headaches in the one-year presumptive period following his separation from his last period of active service and has continued to suffer migraine headaches on an intermittent basis since that time. 2. The preponderance of the evidence is against finding that traumatic brain injury (TBI) began during active service, or is otherwise related to an in-service injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for traumatic brain injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1991 to December 1994 and in the United States Air Force Reserve (USAFR) from January 2008 to July 2008 and from May 2010 to September 2010, with additional reserve service in the USAFR. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a video hearing held before the undersigned Veterans Law Judge in March 2021. A copy of the transcript from the hearing is of record. 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, 1131, 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). 1. Entitlement to service connection for migraine headaches is granted. The Veteran asserts that he began experiencing headaches during service and has continued to suffer from migraines on an intermittent basis up to the present. Certain chronic diseases will be presumed related to service if they were shown as chronic 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; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of migraine headaches, as evidenced by recent VA treatment records, most recently a physician note for a pre-operative medical clearance examination in January 2021. Migraine headache, as an organic disease of the nervous system, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. While service treatment records do not include documentation of treatment or complaints of migraine headaches during a period of active service, the Board notes that the Review of Systems in an October 2010 VA primary care nurse practitioner outpatient note includes a notation that the Veteran was positive for headaches. The Veteran's last period of active service was completed in September 2010. Thus, headaches were first noted during the one-year presumptive period following separation from active service. The Veteran asserts that he has continued to experience significant headache pain intermittently since service. The Veteran is competent to provide lay evidence as to his subjectively-experienced headaches. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (non-expert witnesses are competent to report that which they have observed with their own senses). Headaches were listed among the active problem list in February 2011 and in January 2014. While a VA medical opinion has not been provided concerning whether the current migraine headaches are a continuation of the headaches noted during the presumptive period, the Board finds that the evidence has at least reached the point of equipoise so as to allow for resolution of the doubt in the Veteran's favor. Therefore, affording the Veteran the benefit of the doubt, continuity of symptomatology is established. A grant of service connection for migraine headaches on a presumptive basis is warranted. 2. Entitlement to service connection for traumatic brain injury (TBI) is denied. At the Board hearing, the Veteran testified that he was pushing on a pallet, lost his balance, and fell off the back of an aircraft while working at Bagram Air Base in Afghanistan. He reports that he struck his head at the time, and blacked out for a minute before getting up and feeling kind of dizzy. He stated that he did not seek medical treatment at the time, thinking that he did not need medical help or thought that it was below him, due to his youthfulness at the time. The Veteran continued that there was a stigma to reporting things, and that "they looked down upon you and put you on a medical hold;" and that he did not want to be put on medical hold and unable to fulfill his duties. The Board finds that the Veteran's accounts of the head injury in service, while competent, are not credible. While the Veteran is competent to report on events he experienced during service, there is significant evidence contradicting his assertions. The service treatment records include no mention of complaints or treatment concerning a head injury. The Board notes that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence; however, the absence of contemporaneous medical evidence is one factor in determining credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Board has relied on not only the absence of treatment records for complaints of, and treatment for a head injury in service, but also the evidence of record that is inconsistent with the Veteran's contentions regarding the occurrence of the incident. The Veteran's military personnel records indicate that the Veteran's overseas service took place during his period of active USAFR service from January 2008 to July 2008. His service treatment records include a May 2008 post-deployment health assessment following his return from Afghanistan. At that time, he indicated that he was not seen by a healthcare provider during deployment, had not been wounded, injured, or otherwise hurt during deployment, and had not suffered a fall or other event (for example, an injury to his head) during his deployment. The medical evaluator noted that there was no evidence of a risk of TBI based on the Veteran's responses. A February 2009 VA primary care initial evaluation note also included a traumatic brain injury screen, which noted that the Veteran denied experiencing any TBI-related events during his deployment. The Board has considered the Veteran's explanation that he did not report the head injury or symptoms following the injury due to concern about being placed on medical hold and the resulting stigma, but notes that a June 2008 STR indicates that the Veteran reported straining his lower back while marching, and taking motrin with improvement, and additionally reported concerns about the air quality and cough while in Afghanistan. Given the Veteran's willingness to report his back symptoms once he had returned from his deployment, it does not make sense that he would not report continuing symptoms following a head injury. Further, his explanation that he did not report the incident because he did not want to be placed on a medical hold and be unable to perform his duties is rendered less persuasive by the fact that he had returned from deployment at that point. That mention of an in-service head injury are completely absent from the VA treatment records and examination reports prior to the Veteran's filing of the present claim for service connection further weighs against the credibility of his lay statements concerning the in-service injury, as the Veteran's stated concerns of stigma and being placed on a medical hold would not have been present post-service. The Veteran did not report an injury or concerns regarding a TBI until filing his claim for service connection benefits. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board recognizes that the Veteran has not been provided with VA examination and medical opinion concerning his claim for service connection for a TBI. However, the Board concludes that such is not necessary, as the evidence of record does not establish that an event, injury, or disease occurred during service. Pursuant to the holding of the Court of Veterans Appeals in McClendon v. Nicholson, a VA examination and/or opinion is therefore not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran suffered a TBI and/or in-service head injury during his active service. The criteria for an award of service connection for a TBI are therefore not met, and the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left hip disability is remanded. The Veteran has not yet been provided with VA examination or medical opinion concerning his claim for service connection for a left hip disability. The Veteran asserts that he suffers from a current left hip/thigh disability related to his military service. His service treatment records document that he was involved in a motorcycle accident where he sustained abrasions to his lower extremities, and he has been granted service connection for a painful left thigh scar from such incident. As there is an indication that a current left hip disability may be related to service, the low threshold requiring an examination and/or medical opinion has been met. An examination and medical opinion should be provided on remand. See McLendon, 20 Vet. App. 79. 2. Entitlement to service connection for a right shoulder disability is remanded. The Veteran was provided with a VA examination pertaining to his right shoulder claim in February 2018. At that time, the Veteran described experiencing discomfort and clicking when he raised his right arm, and difficulty with lifting, overhead activities, and throwing. The examiner stated an opinion that a current right shoulder disability was less likely as not incurred in or caused by service, to include the motorcycle accident in August 1992. His reasoning included a notation that the first record of a shoulder condition in the medical records is from October 2009, noting right shoulder pain beginning three weeks prior. While this was not during a period of active service, the examiner did not directly address whether the Veteran's later-described overuse of his joints from a great deal of heavy lifting as part of his duties as an aerial port during service contributed to any right shoulder disability present during the relevant appeal period. A review of systems on an October 2010 VA primary care note to establish care indicated that the Veteran was positive for right shoulder joint pain and stiffness. Right shoulder pain and clicking was also noted in a January 2014 VA treatment record, and the Veteran reported at the February 2018 examination that he had discomfort and clicking when he raised his right arm. As the February 2018 examination report included a diagnosis of right shoulder glenohumeral joint osteoarthritis, and the October 2010 VA treatment record notes right shoulder symptoms within one year of separation from active service in September 2010, a supplemental medical opinion should be sought as to the likelihood that the chronic disability arose during or within one year of active military service. 3. Entitlement to service connection for a low back disability is remanded. The Veteran was provided with VA examination and medical opinion concerning his back in February 2018. At that time, the examiner opined that the Veteran's degenerative arthritis of the spine was less likely than not incurred in or caused by service, because no back condition was noted in the service treatment records after the initial January 2008 notation of a back strain treated with Motrin, and no back condition was noted at a June 2009 VA examination or in records starting in 2009. The Board notes that the Veteran did report experiencing recurring lower back pain at a February 2011 VA medical appointment, during the one-year period following his separation from active service in September 2010. On remand, a supplemental medical opinion should be sought regarding the likelihood that the Veteran's degenerative arthritis of the spine is related to his active service or arose during or within the one-year period following separation from active service. 4. Entitlement to service connection for left and right elbow disability is remanded. 5. Entitlement to service connection for left and right knee disability is remanded. The Veteran was also provided with VA examinations concerning his claims for service connection for bilateral elbow and bilateral knee disabilities in February 2018. The examiner stated an opinion that the bilateral elbow strains and bilateral patellofemoral pain syndrome less likely than not arose during service or were related to the 1992 in-service motorcycle accident, because the Veteran's 1994 separation examination and May 2008 post-deployment evaluation were negative for musculoskeletal problems. However, he did not address the Veteran's contention that his duties in service involving a lot of rucksack marches, pushing pallets, moving boxes, cargo, and netting, and doing a lot of heavy lifting affected his elbows and knees and contributed to his current disability. When VA provides an examination or medical opinion, it must ensure that such is adequate. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). On remand, a supplemental medical opinion should be provided which addresses the Veteran's contentions. Finally, the Board notes that a February 2009 VA treatment record indicates that the Veteran was receiving private healthcare from a Dr. Wu. As such private treatment records may be relevant to the Veteran's claims on appeal, action should be taken to obtain such records. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify and provide all necessary information and authorization needed to allow VA to obtain relevant private treatment records from Dr. Wu on his behalf. 2. Thereafter, schedule the Veteran for a VA examination for his claimed left hip disability. The examiner must review the claims file and address the following: A. Identify a diagnosis for any left hip/thigh disability present at any time during the relevant appeal period (April 2017 to present). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. B. For any left hip/thigh disability identified, is it at least as likely as not related to service, to include the documented 1992 motorcycle accident? The examiner's attention is also directed to the Veteran's March 2021 testimony at the Board hearing that his duties involved a lot of heavy lifting, bending, and pushing of pallets that resulted in overuse injuries to his joints. A clear rationale must be provided for any opinion and/or conclusion stated. The examiner's consideration of the evidence should not be limited to the specific evidence identified/highlighted above. 3. After associating any records responsive to remand directive #1 with the claims file, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right shoulder glenohumeral joint osteoarthritis (present during the relevant appeal period prior to a recent work-related injury) at least as likely as not arose within the 1-year period following the Veteran's separation from active service in September 2010 or is at least as likely as not related to the Veteran's described overuse of the joints in service as part of duties pushing and loading pallets, moving boxes, and generally performing a lot of heavy lifting. In responding to this inquiry, the clinician should consider VA treatment records from October 2010 VA documenting the Veteran's report of right shoulder pain and stiffness, and from January 2014 documenting the Veteran's report of right shoulder clicking and pain. If an additional examination is found needed to respond to the inquiry, such should be scheduled, and the Veteran provided with appropriate notice. A clear rationale must be provided for any opinion and/or conclusion stated. The clinician's consideration of the evidence should not be limited to the specific evidence identified/highlighted above. 4. After associating all records responsive to remand directive #1 with the claims file, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's degenerative arthritis of the spine at least as likely as not arose within the 1-year period following the Veteran's separation from active service in September 2010 or is otherwise related to his in-service duties involving a lot of heavy lifting, pushing pallets, moving boxes, etc. (See Veteran's testimony at March 2021 Board hearing). In responding to this inquiry, the clinician should consider the Veteran's lay statements as well as a February 2011 VA medical record documenting the Veteran's report of recurrent lower back pain. If an additional examination is found needed to respond to the inquiry, such should be scheduled, and the Veteran provided with appropriate notice. A clear rationale must be provided for any opinion and/or conclusion stated. The clinician's consideration of the evidence should not be limited to the specific evidence identified/highlighted above. 5. After associating all records responsive to remand directive #1 with the claims file, obtain an addendum opinion from an appropriate clinician regarding whether any elbow or knee disability present during the relevant appeal period (April 2017 to Present) at least as likely as not is etiologically related to the Veteran's described in-service duties involving a lot of heavy lifting, pushing pallets, moving boxes, etc. (See Veteran's testimony at March 2021 Board hearing). If an additional examination is found needed to respond to the inquiry, such should be scheduled, and the Veteran provided with appropriate notice. A clear rationale must be provided for any opinion and/or conclusion stated. The clinician's consideration of the evidence should not be limited to the specific evidence identified/highlighted above. 6. After completing the above, conduct any additional development deemed necessary in light of the expanded record then readjudicate the appeals seeking service connection for left hip, right shoulder, low back, bilateral elbow, and bilateral knee disabilities. If any of the benefits sought are not granted to the Veteran's satisfaction, issue the Veteran and his representative a supplemental statement of the case and allow them an opportunity to respond before returning the appeal to the Board, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.