Citation Nr: 21040381 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-16 465 DATE: July 3, 2021 ORDER Entitlement to service connection for migraine headaches, to include as secondary to service-connected unspecified mood disorder and/or degenerative disc disease of the spine is granted. REMANDED Entitlement to service connection for a right Achilles tendon condition, to include as secondary to service-connected pes planus with plantar fasciitis and/or left achilles tendon rupture status post rupture repair and tendonitis (left ankle condition) is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his headache condition is due to his service-connected unspecified mood disorder. CONCLUSION OF LAW The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1998 to December 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran did not submit a Notice of Disagreement to the January 2013 rating decision, new and material evidence in the form of lay statements, private treatment records, and a VA examination and opinions were added to the claims file within one year of the January 2013 rating decision, and the claims for migraine headaches and a right Achillis tendon condition were readjudicated by the RO in an August 2014 rating decision, from which the Veteran appealed. In light of the foregoing, the Board finds that the January 2013 rating decision is the one currently on appeal and has recharacterized the claims as one for service connection. Additionally, the Board acknowledges that the Veteran filed an initial claim for right ankle pain in November 2000, which was denied by the RO in February 2001. Thereafter, in a May 2007 rating decision, the RO granted service connection for a right ankle strain. However, the Board does not find the Veteran's original right ankle claim to encompass a claim for a right Achillis tendon condition. In this regard, the evidence of record indicates that the Veteran was not diagnosed with a right Achillis tendon condition until 2013, many years after his original claim. Additionally, the two claims appear to be based on different factual bases. Specifically, with regards to his original November 2000 claim, the Veteran related his right ankle pain to right ankle pain he experienced in service. With regards to his current claim, he primarily contends that his Achillis tendon condition is secondary to service-connected disabilities and/or related to going up and down mountains constantly in service. Accordingly, the Board finds that the Veteran's claim for service connection for a right Achillis tendon condition is a new claim based upon a distinctly diagnosed disease. See 38 C.F.R. §§ 4.13, 4.125; see also Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. During the hearing, the undersigned agreed to hold the record open for a period of 30 days to allow for the submission of additional evidence. Subsequently, in March 2021, the Board granted an additional extension of 30 days to submit additional evidence. That time period has now lapsed, and no additional evidence has been received. Entitlement to service connection for migraine headaches, to include as secondary to service-connected unspecified mood disorder and/or degenerative disc disease of the spine. The Veteran contends that he has migraine headaches that are secondary to his service-connected unspecified mood disorder (psychiatric disability) and/or his degenerative disc disease of the spine (low back disability). In the alternative, the Veteran contends that they are directly related to his military service. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include migraine headaches (as an organic disease of the nervous system), manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition to service connection on a direct basis, service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Turning to the evidence of record, while the competent evidence establishes the Veteran has a headache disability, there is conflicting evidence as to the correct diagnosis. The Veteran initially underwent a VA examination for his headaches in December 2012 at which time the examiner diagnosed chronic headaches but found that they were not migrainous. However, subsequent private treatment records show that the Veteran has since been diagnosed with migraine headaches. Accordingly, the Board finds that the Veteran has a current diagnosis of migraine headaches. In pertinent part, the Veteran has contended that his headaches are related to his service-connected psychiatric disorder. The December 2012 VA examiner opined, in pertinent part, that the Veteran's headaches were less likely than not proximately due to or the result of the Veteran's psychiatric condition. However, the examiner's rationale appears to primarily address direct service connection and why the Veteran's headaches are not directly related to his service rather than to his psychiatric condition. Thus, the Board finds this opinion is afforded minimal probative value. In a February 2014 Headaches Disability Benefits Questionnaire, the Veteran's private treating physician, Dr. S.O. opined that the Veteran's migraine headaches were at least as likely as not due to his low back condition, sleep disturbances, and depression. While no rationale was provided, in an August 2014 correspondence, Dr. S.O. explained that insomnia and depressed mood are well known exacerbating factors for migraine headaches. The evidence of record shows that depressed mood and chronic sleep impairment are symptoms of the Veteran's service-connected psychiatric condition. Accordingly, in light of Dr. S.O.'s opinion and the minimal probative weight afforded to the December 2012 VA opinion, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for migraine headaches as secondary to the service-connected psychiatric disability is warranted. The claim is granted. REASONS FOR REMAND Entitlement to service connection for right Achilles tendonitis, to include as secondary to service-connected pes planus with plantar fasciitis and/or left achilles tendon rupture status post rupture repair and tendonitis (left ankle condition). The Veteran contends that his right Achilles tendon condition is either directly related to his active military service or secondary to his service-connected pes planus with plantar fasciitis and/or left ankle condition. For the reasons that follow, the Board finds that additional development is necessary prior to adjudication. The Veteran most recently underwent a VA examination for his right ankle in April 2014 at which time an etiology opinion was obtained. The examiner opined that the Veteran's right ankle tendonitis was less likely than not related to his active military service. However, a review of the rationale shows that the examiner primarily repeated the Veteran's medical history and current diagnosis but did not specifically explain why the ankle condition was not related to his military service. The examiner also opined that the Veteran's right ankle tendon condition is not secondary to or aggravated by his service-connected pes planus with plantar fasciitis. However, no rationale was provided for this opinion. Additionally, no opinion has been obtained that addresses whether the Veteran's right ankle tendon condition is caused or aggravated by his service-connected left ankle condition. In light of the foregoing, the Board finds that a remand is warranted in order to obtain new etiology opinions that address both direct service connection as well as secondary service connection. Moreover, there may be outstanding, relevant private treatment records. At the February 2021 Board hearing, the Veteran reported that he currently recieves treatment for his right ankle from Dr. S.O. and Dr. K.P. While records from Dr. S.O. are of record, the most recent records are from January 2014. No records from Dr. K.P. are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. S.O. and Dr. K.P. Make two requests for the authorized records from Dr. S.O. from January 2014 to the present as well as all records from Dr. K.P. related to the Veteran's right ankle, unless it is clear after the first request that a second request would be futile. 2. Obtain a VA medical opinion regarding the etiology of the Veteran's right ankle Achillis tendon condition from a qualified medical professional. The need for a physical examination is left to the discretion of the VA examiner. The examiner must review the entire claims file and a copy of this Remand. The examiner must opine: a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right ankle Achillis tendonitis had its onset in, or is otherwise related to, active service, to include climbing up and down a mountain carrying a 100 pound ruck sack. b) Whether it is at least as likely as not that the Veteran's right ankle Achillis tendonitis is caused or aggravated by his service-connected pes planus with plantar fasciitis. c) Whether it is at least as likely as not that the Veteran's right ankle Achillis tendonitis is caused or aggravated by his service-connected left achilles tendon rupture status post rupture repair and tendonitis. In so opining, the examiner should address the Veteran's contention that being on crutches following surgery for his left Achillis rupture caused him to overuse his right ankle. The term "aggravation" means any incremental increase in a disability beyond its natural progression, that is, any additional impairment of earning capacityin right Achillis tendonitis resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence. (Continued on the next page) A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.