Citation Nr: 21032358 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-34 851 DATE: May 26, 2021 ORDER Entitlement to service connection for a headache disability, to include migraines is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The Veteran's headache disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise caused by an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a headache disability, to include migraine headaches, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1992 to October 1996 including service in Somalia and Haiti. These matters came before the Board of Veterans Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded the issues currently on appeal in addition to the Veteran's claim for service connection for a traumatic brain injury (TBI). The RO granted service connection for residuals of a TBI in a December 2020 rating decision; therefore, it is no longer on appeal. Entitlement to service connection for a headache disability, to include migraines The June 2020 Board remand directed the RO to obtain an addendum opinion as to the etiology of the diagnosed migraine headache disability. It was noted the examiner should consider and discuss any lay statements of record, to include the Veteran's statements. In his January 2012 claim for service connection, the Veteran indicated his migraine headaches began in February 1995 and he received treatment at Ft. Drum. In April 2013, VA made a formal finding on the unavailability of service treatment records from September 24, 1992 to October 28, 1996. During his September 2020 TBI VA examination, the Veteran described an incident around 1995 to 1996 when he was hit in the head by a statue while at Ft. Drum, after serving in Somalia. He denied loss of consciousness, but reported he was dazed. He felt wetness over his face and stated he ended up with two staples placed on top of his head. He explained that he continued his duties without interruption and was started on Imitrex for headaches in 1996 but did not continue it. He stated that sometime after the Somalia experience was when he began slowly having more intense headaches with sleep issues. In its award of service connection for residuals of a TBI, the RO accepted the Veteran's lay evidence that the event involving the statue strike on the head had occurred. Certain chronic diseases, including organic diseases of the nervous system, 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 July 2013 VA issued Compensation & Pension Service Bulletin notes that migraine headaches should be recognized as an organic disease of the nervous system. Thus, the Board will herein consider the continuity and chronicity provisions of 38 C.F.R. § 3.303(b). In light of the evidence of record, including that discussed below, the Board finds that the Veteran's migraine headache disability was not shown as chronic in service or within a presumptive period and did not manifest to a compensable degree within a presumptive period. Additionally, the weight of competent and credible evidence does not establish continuity of symptomatology of migraine headaches since service. The September 2020 VA examiner indicated the Veteran was diagnosed with migraine headaches in March of 2012. The medical history portion of the examination indicates an onset of 2004 and notes the file documents that the Veteran was seen for headache with migraine type symptoms in March 2012. The Veteran indicated they had been going on for seven to eight years. The examiner noted the file indicates the Veteran had to discontinue his post office job because of headaches. The Veteran stated that in or around 1995 or 1996, he had occasional headaches, but sometime after that he developed headaches sometimes with an aura, photophobia, sensitivity to noise, and nausea lasting hours to days. The Veteran tied the beginning of migraines to a head injury that was not documented in the file. The examiner explained the Veteran has a long history of migraine-type headaches with medical treatment documented in the file. The March 2012 claims file notation indicates he reported he had been on Imitrex in the past. He had been having headaches for seven to eight years without needing medical follow up and was seen due to a recent increase in frequency and intense associated symptoms. The same encounter included a chief complaint of multiple symptoms of sleep disorder, hypervigilance and other symptoms that justified a mental health referral. She further explained the Veteran has multiple documented other medical diagnoses that could be potential triggers of migraine headache. The Veteran did not know how long after 1995 to 1996 that the migraines actually started. He stated he had mild occasional headaches prior to that time frame with a slow progression of headaches over time to involve the associated migraine-type symptoms that in 2012 became severe enough for him to return to his provider. The Veteran noted headaches began around the time of a head injury in 1995 or 1996 when he received two staples to his head. He had not presented any records of that event, but stated it occurred at Fort Drum, NY. This examiner was the same examiner who evaluated the claim for TBI and the RO found that the event had occurred. However, the examiner concluded, due to the paucity of available evidence supporting an in-service head injury as the trigger of headaches, and without documentation of symptoms available until 2012, that the migraine-type headaches described are less likely than not due to military service, but due to multiple other established medical disorders well documented in the c-file. At the time of the January 2020 VA examination, the Veteran reported his condition started in 1995 as a result of military service. This examiner found it was less likely than not that the Veteran's current diagnosis of headaches began during active service, manifested within one year of his October 1996 discharge from service, or was noted during service with continuity of the same symptomatology since service. While the Veteran claims that his headaches started while he was in service, the record contains little detail from the Veteran discussing the onset and continuation of the condition. While the Veteran mentioned a head injury requiring staples in 1995 or 1996 during his September 2020 VA examination, further information describing the incident and the severity and frequency of any subsequent headaches experienced by the Veteran while he was in service or within the first five years after service is not part of the record. Additionally, treatment notes from June 2012 indicate a response of "no" to the question of "do you have any history of head trauma or brain injury." While in parts of the record the Veteran indicated he has had headaches since service, he also indicated that his headaches were present for about seven or eight years prior to them being documented in his available medical records in 2012. Seven to eight years prior to 2012 would be at least eight years after the Veteran left service, suggesting that even if the Veteran did experience headaches while in service, he has not experienced continuity of symptomatology since service. Treatment notes from June 2012 reflect the Veteran reported he had not returned to work at the post office in a year and had taken leave due to chronic headaches. However, in his detailed September 2016 private psychological evaluation, there is no mention of his headaches. When discussing the Veteran's employment history at the post office, it was noted "the Veteran managed to get through his time at the USPS without major problems most likely because he was able to work alone in a job that did not require more than the most minimal of interaction with others." Similarly, the Veteran's March 2016 application for increased compensation based on unemployability specifies that his posttraumatic stress disorder (PTSD) prevents him from maintaining gainful employment. The Veteran included a statement that explained how his PTSD symptoms affected him and his ability to perform his job. No mention of headaches is included in this discussion. In considering the record, the available medical evidence does not establish chronic migraine headaches in service; nor does the record reflect the Veteran's migraine headache disability manifest to a compensable degree within the presumptive period or within a presumptive period. While the Veteran stated he has experienced headaches since experiencing a head injury in service, the preponderance of the evidence does not support finding that the Veteran experienced continuity of symptomatology of migraine headaches. As such, the Board finds against presumptive service connection. With respect to direct service connection, while the Veteran has a current headache condition and reported experiencing headaches in service, the record does not contain competent evidence to establish a causal relationship between the headaches the Veteran experienced in service and his current headache condition. Significant weight is afforded the September 2020 VA examiner's opinion in light of her review of the record, expertise, and detailed rationale for her determination. The Board finds that a preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine does not apply. Accordingly, service connection for migraine headaches must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability 2. Entitlement to service connection for a right ankle disability 3. Entitlement to service connection for a left ankle disability 4. Entitlement to service connection for a right knee disability 5. Entitlement to service connection for a left knee disability The June 2020 Board remand directed the RO to schedule a VA examination to determine the etiology of any current right shoulder, bilateral ankle, and bilateral knee disability. The remand specified that the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner was advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence. The September 2020 VA opinions do not address the Veteran's lay statements. Therefore, unfortunately, another remand is needed. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. Obtain addendum opinions from a qualified clinician as to the following questions: Is it at least as likely as not that the Veteran's right shoulder disability manifested during or is otherwise caused by the Veteran's active duty service? The clinician must consider the Veteran's statements, including: his January 2012 claim in which he indicated his right rotator cuff disability began in June 1996 and he received treatment at Fort Drum; his report from his January 2020 VA examination in which he explained the condition started in 1995 as a result of strenuous physical training exercises and symptoms at the time of onset included sharp pain with activities or lifting; and his September 2020 VA examination during which he stated he experienced pain to the right shoulder starting in 1994 resulting from physical military training activities. Is it at least as likely as not that the Veteran's right ankle disability manifested during or is otherwise caused by the Veteran's active duty service? The clinician must consider the Veteran's statements, including: his January 2012 claim in which he indicated his right ankle disability began in July 1993 and he received treatment in Somalia; his June 2012 treatment notes in which he stated he hurt both ankles in Somalia; his January 2020 VA examination in which he reported the condition started in 1994 or 1995 as a result of strenuous physical training exercise and symptoms at the time of onset included joint pain, swelling, and stiffness; and his September 2020 VA examination during which he complained of pain to the ankles resulting from physical military training activities with an onset of 1994. Is it at least as likely as not that the Veteran's left ankle disability manifested during or is otherwise caused by the Veteran's active duty service? The clinician must consider the Veteran's statements, including: his January 2012 claim in which he indicated his left ankle disability began in October 1994 and he received treatment in Haiti; his June 2012 treatment notes in which he stated he hurt both ankles in Somalia; his report from his January 2020 VA examination in which he reported the condition started in 1994 or 1995 as a result of strenuous physical training exercise and the symptoms at the time of onset included joint pain, swelling, and stiffness; and his September 2020 VA examination during which he complained of pain to the ankles resulting from physical military training activities with an onset of 1994. Is it at least as likely as not that the Veteran's right knee disability manifested during or is otherwise caused by the Veteran's active duty service? The clinician must consider the Veteran's statements, including: his January 2012 claim in which he indicated his right knee disability began in October 1994 and he received treatment in Haiti; his report from his January 2020 VA examination in which he reported the condition started in 1994 or 1995 as a result of strenuous physical training exercise and the symptoms at the time of onset included joint pain, swelling, and stiffness; and his September 2020 VA examination during which he complained of pain to the knees resulting from physical military training activities with an onset of 1994. Is it at least as likely as not that the Veteran's left knee disability manifested during or is otherwise caused by the Veteran's active duty service? The clinician must consider the Veteran's statements, including: his report from his January 2020 VA examination in which he reported the condition started in 1994 or 1995 as a result of strenuous physical training exercise and the symptoms at the time of onset included joint pain, swelling, and stiffness; and his September 2020 VA examination during which he complained of pain to his knees resulting from physical military training activities with an onset of 1994. The examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner is advised that competent lay statements should not be disregarded merely because they are unaccompanied by contemporaneous medical evidence; VA made a formal finding on the unavailability of service treatment records for the Veteran from September 24, 1992 to October 28, 1996. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.