Citation Nr: 21031556 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-15 432 DATE: May 24, 2021 ORDER Service connection for ocular migraines is granted. REMANDED Entitlement to service connection for right leg condition is remanded. Entitlement to service connection for left leg condition is remanded. Entitlement to service connection for right shoulder condition is remanded. Entitlement to service connection for cervical spine, claimed as neck pain, is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the evidence of record shows that the Veteran's chronic headaches, diagnosed as ocular migraines, are related to service. CONCLUSION OF LAW The criteria for service connection for ocular migraines have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1980 to May 1983. In August 2017, the Board remanded the claims of entitlement to service connection for right shoulder, entitlement to service connection for a neck disability, and entitlement to service connection headaches for the issuance of an SOC in August 2017. In December 2020, the Veteran testified before the undersigned VLJ l. Service connection for ocular migraines. In his statements and testimony, the Veteran contends that he is entitled to service connection for headaches because he has had this disability since service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a). 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 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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 particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. Ocular migraines The Veteran asserts that service connection is warranted for chronic headaches diagnosed as ocular migraines. See December 2020 Hr'g Tr. at 4-6. Specifically, the Veteran testified that, during service, he was injured in a jeep accident where he hit his head on the dashboard of his jeep. Additionally, he reported a second incident during training exercises, where he fell while trying to climb a hill. He continued his training exercises despite his injury and did not report it. The Veteran stated that he did not report his injuries as a result of either incident because they were discouraged from seeking treatment in service. The Veteran reported he self-medicated with alcohol to suppress the pain. He stated, he did seek treatment shortly after discharge. See December 2020 Hr'g Tr at 4, 5. The Veteran has a current diagnosis of ocular migraines. See March 2020 Ophthalmology Note. In January 2021, the Veteran's sibling submitted a statement that since returning from service, the Veteran has complained of headaches. See January 2021 Buddy Statement. The Veteran's post-service treatment records the Veteran has received treatment and medication for his chronic headache condition and has a diagnosis of ocular migraines. See January 2015 Optometry Note; see also September 2014 Pact Nurse Clinic Note; October 2017 Optometry Note. The Veteran testified that he had to stop taking the medication to treat his headaches because it interfered with his sleep apnea. See December 2020 Hr'g Tr. He reports recurrent headaches that occur 2-3 times per week. The Board finds the Veteran's testimony and the supporting buddy statement both competent and credible, as these are the types of symptoms that lend themselves to lay observation. 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). The Board finds that the evidence, including the Veteran's competent and credible testimony, shows the Veteran's chronic headaches diagnosed as ocular migraines began during service and have been recurrent since that time. As such service connection is granted. REASONS FOR REMAND 1. Entitlement to service connection for right leg condition and left leg condition is remanded. The Veteran seeks service connection for right leg and left conditions that he believes are secondary to his back condition. The Veteran described his bilateral radicular leg symptoms as pain and numbness down both legs. The regional office initially denied the Veteran's claim because he is not service connected for his back condition. The Board notes the Veteran's back condition is still pending in a separate appeal. However, the Veteran has been granted service-connection for right foot; right knee condition; left knee condition and left foot hallux valgus. Additionally, the Veteran's sibling submitted a statement that the Veteran has reported ongoing chronic leg pain. See January 2021 Buddy Statement. The Board finds that the Veteran must be afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the entire claims folder, as to his claims for service connection for numbness and tingling of the left lower extremity and right lower extremity. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for cervical spine disability and right shoulder is remanded. The Veteran seeks service connection for a neck condition and a right shoulder condition that he says develop as a result of carrying heavy back packs during service. He reported that he was discouraged from seeking treatment for his injuries or risked being disciplined while in service. See December 2020 Hr'g Tr. The Veteran's post-service treatment records show that he has been treated for functional impairment and pain in his neck and right shoulder. See June 2012 Medical Opinion DBQ; July 2013 Neurology Progress Note. The Veteran has a diagnosis of degenerative changes cervical spine with mild narrowing of the disc at the c6-c7. See April 2013 Examination Report. The Veteran has a diagnosis of internal derangement of the right shoulder and right shoulder bursitis s/p partial rim tear supraspinatus tendon. See July 2013 Neurology Progress Note; November 2011 Shoulder and Arm DBQ. The Board notes that the November 2011 shoulder examiner remarked that the examination was unremarkable for the right shoulder and provided a negative nexus opinion. See November 2011 Shoulder and Arm DBQ. The Board notes, however, the Veteran's post-service treatment records and statement show ongoing symptoms and treatment for his neck and right shoulder condition. In addition, following the hearing, the Veteran submitted competent lay evidence indicating that the Veteran has had recurrent right shoulder problems since service. See October 2011 Emergency Department Note; see also April 2016 Treatment Note; March 2012 Clinical Report; January 2021 Buddy Statement; December 2020 Hr'g Tr. As such, the Board finds that based on the foregoing, clarity is needed regarding the etiology of the current claimed disorders, and a remand is necessary to obtain VA examinations and opinions in regard to these issues. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his bilateral lower extremity radicular or neuropathy symptoms, right shoulder symptoms and neck symptoms. 2. Afford the Veteran a VA examination to evaluate his right leg and left leg conditions. For any such functional impairment found to be present, the examiner should opine whether it is at least as likely as not related to and/or had their onset. If the examiner determines any such functional impairment is not directly related to service, then he or she should express an opinion as to whether it is at least as likely as not it was caused or aggravated by his service-connected disabilities. The examiner must state whether the Veteran has any neurologic impairment of his right lower extremity and/or left lower extremity. The examiner must rule in or exclude a diagnosis of right lower extremity and left lower extremity. 3. Schedule the Veteran for a VA examination to determine the nature, onset and etiology of any functional impairment of the neck and right shoulder. The Veteran has a current diagnosis of right shoulder bursitis and degenerative changes cervical spine with mild narrowing of the disc at the c6-c7. For any impairment found to be present in the neck and right shoulder, the examiner should opine whether it is at least as likely as not related to an in-service injury, event, or disease. If the examiner determines any such impairment is not directly related to service, then he or she should express an opinion as to whether it is at least as likely as not it was caused or aggravated by his service-connected disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, 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.