Citation Nr: 21047063 Decision Date: 08/02/21 Archive Date: 08/02/21 DOCKET NO. 17-08 237 DATE: August 2, 2021 ORDER Entitlement to service connection for migraines, secondary to service-connected tinnitus on a causation basis, is granted. Entitlement to service connection for right eye disability is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for bipolar disorder is granted. FINDINGS OF FACT 1. The evidence of record is at least evenly balanced as to whether the Veteran's migraine headaches were caused by his service-connected tinnitus. 2. The Veteran does not have, and has not had a right eye disability, or right eye disability symptomatology at any time during or approximate to the pendency of his claim. 3. The Veteran's diagnosed PTSD was caused by an in-service stressor related to his fear of hostile, military, or terrorist activity. 4. The Veteran's diagnosed bipolar disorder is related to service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for migraine headaches, secondary to service-connected tinnitus on a causation basis, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 U.S.C. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for right eye disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304 (f). 4. The criteria for service connection for bipolar disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to September 1992. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision which, inter alia, denied service connection for headaches, right eye disability, and bipolar disorder. In October 2014, the Veteran filed his notice of disagreement with the denials of service connection. In January 2017, the Veteran was issued a statement of the case, and in February 2017 perfected his appeal to the Board. In January 2019, the Board, among other things, remanded the Veteran's claims of service connection for right eye disability, migraines, psychiatric disability, and an earlier effective date for the grant of service connection for tinnitus for new examinations and opinions regarding the etiology of the Veteran's disabilities, and for issuance of a statement of the case regarding the claim for an earlier effective date for the grant of service connection for tinnitus in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). For the reasons indicated in the discussion below, the examinations and opinions that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and are adequate to decide the claims on appeal. Additionally, the AOJ issued a statement of the case regarding the Veteran's claim for an earlier effective date for the grant of service connection for tinnitus in August 2020. The Veteran did not subsequently perfect his appeal with regard to the earlier effective date issue. Thus, the AOJ complied with the Board's pertinent remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b). 1. Migraines A June 2014 VA letter indicated that the Veteran's service treatment records for the period of service from November 1988 to September 1992 could not be located. In instances of incomplete service treatment records, VA must employ heightened consideration of the benefit-of-the-doubt standard and rely on the competent and credible reports of medical history and symptoms. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In a January 2021 statement, the Veteran reported struggling with headaches at least 3 to 4 times a week. He stated that he feels dizzy and lightheaded with the headaches, and has been nauseated, albeit infrequently. He also stated that the headaches cause blurry vision, and reported seeing flashes of light. In a February 2015 disability benefits questionnaire (DBQ), the examining physician noted that the Veteran had a diagnosis of migraines, and the Veteran reported getting headaches every day. The physician opined that it is as likely as not that the Veteran's headaches are permanently aggravated by his service-connected tinnitus. The physician noted that an association between headaches and tinnitus is documented in the International Journal of Audiology article, Psychological and Audiological Correlates of Perceived Tinnitus Severity, and the article has been submitted in the claims file. An August 2019 DBQ reflects that the Veteran reported an onset of headaches in 2010 which had since worsened. The examining physician opined that the Veteran's migraines were less likely than not proximately due to, or the result of his service-connected tinnitus, stating that tinnitus has not been clinically demonstrated to cause migraine headaches, and that tinnitus is a subjective symptom. He also opined that the Veteran's migraine headaches were less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, stating that according to the Veteran, onset was after service, and there are no findings of migraines in the service treatment records. Finally, the physician opined that the Veteran's migraines were not at least as likely as not (at least a 50 percent probability) aggravated beyond their natural progression by his service-connected tinnitus, noting that tinnitus has not been clinically demonstrated to worsen migraine headaches beyond their natural progression. The evidence of record is at least evenly balanced as to whether service connection for migraine headaches is warranted. The Veteran has provided competent lay evidence that he suffers from headaches and the February 2015 examining physician noted a diagnosis of migraine headaches, thus the current disability requirement for service connection has been established. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). The dispositive issue is whether there is a nexus between his service-connected tinnitus and his migraines. While the August 2019 physician opined that the Veteran's migraine headache pain was less likely than not (less than a 50 percent probability) proximately due to, the result of, or aggravated beyond its natural progression by his service-connected tinnitus, he stated that tinnitus has not been clinically demonstrated to cause or worsen migraines to support his opinion. However, the February 2015 physician opined that it is as likely as not that the Veteran's headaches are permanently aggravated by his service-connected tinnitus, and provided treatise material which indicated an association between headaches and tinnitus. Medical article and treatise evidence "can provide important support when combined with an opinion of a medical professional." Sacks v. West, 11 Vet. App. 314, 317 (1998). The February 2015 physician provided a thorough rationale based on an accurate characterization of the evidence of record. Therefore, his opinion is afforded significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). However, the Board finds the February 2015 physician opinion somewhat ambiguous as to whether the relationship between the migraines and tinnitus was one based on causation or aggravation. While the physician explicitly opined that the Veteran's migraine headache pain was at least as likely as not permanently aggravated beyond its natural progression by tinnitus, his rationale, which included reference to the submitted treatise material, supports both conclusions as the treatise material noted an association between the severity of one's tinnitus and the frequency of headaches. The evidence also reflects that the Veteran has suffered from migraine headache pain for approximately 11 years as indicated in his August 2019 DBQ, while he reported being aware of his tinnitus since 1990 in a July 2014 VA examination report, indicating a temporal relationship in the development of the 2 disabilities. Taken together, the medical opinion and additional evidence contained within is at least evenly balanced as to whether the Veteran's migraines are related to his service-connected tinnitus, whether the relationship is on an aggravation or causation basis. Resolving interpretive and reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for migraines, secondary to service-connected tinnitus, on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Right Eye Disability The Veteran indicated in his May 2013 claim that he suffers from a right eye disability that had its onset in 1990 during service. As previously noted, there are no service treatment records for the Veteran's period of service, but his September 1992 medical examination for separation statement of option reflects that the Veteran denied a separation medical examination. December 2014 VA treatment records reflect that the Veteran was treated for blurred vision. A September 2019 DBQ reflects that the Veteran does not have a current eye condition. The Veteran reported blurring in the right eye, but the DBQ indicated a normal internal eye examination bilaterally. The examining optometrist opined that the Veteran's claimed eye disability was less likely than not (less than a 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness, as there is no current condition or diagnosis, thus a relationship to service cannot be made. She additionally noted that it is less likely than not (less than a 50 percent probability) that the Veteran has an eye disability other than refractive error, stating that there is no amblyopia since there is corrected vision of 20/20 in each eye. While the December 2014 VA treatment records indicate the Veteran was treated for blurred vision, the evidence indicates that the Veteran's blurred vision is a symptom of his migraine headaches for which he is now service-connected, and thus adequately compensated. The Veteran has not otherwise provided evidence indicating that he suffers from any other eye disability or eye disability symptomatology. For the following reason the claim must be denied. The presence of a disability at the time of filing of a claim or during or approximate to its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board cannot draw a bright line at the date of claim but must consider all the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In addition, a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service-connected disabilities"). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain could constitute disability if it results in impairment and is due to disease or injury in service. Saunders, 886 F.3d 1356, 1364-65. In this case, however, the weight of the evidence reflects that the Veteran has not suffered from a right eye disability, or symptomatology stemming from a right eye disability, at any time during or approximate to the pendency of the claim. While the Veteran's treatment records during service are unavailable, his post-service records are devoid of any indication that the Veteran suffered from, or was treated for a right eye disability or right eye disability symptomatology at any time during the period on appeal. Moreover, the evidence does not reflect right eye disability symptoms that cause impairment in earning capacity, or that are related to, or may be associated with service. The September 2019 optometrist opined that the Veteran's claimed right eye disability was less likely than not incurred in, or caused by the claimed in-service injury, event, or illness, finding that there is no current condition or diagnosis. As the optometrist based her opinion on an accurate characterization of the evidence of record and provided the Veteran with an examination, her opinion is afforded significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. Under 38 U.S.C. § 5107 (a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not offered any competent evidence which indicates that he suffers from a right eye disability or right eye disability symptomatology which resulted from a disease or injury that occurred in service. For the foregoing reasons, the preponderance of the evidence reflects that service connection for a right eye disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. 3. Psychiatric disabilities The record contains psychiatric diagnoses other than bipolar disorder. Therefore, the Board has expanded the issue on appeal to include all psychiatric disorders, to include PTSD, as reflected in the order and consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM 5) criteria, in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304 (f). The Board notes that the DSM-IV has been updated with a Fifth Edition (DSM-5). VA has amended 38 C.F.R. § 4.125(a) to require the diagnosis to conform to DSM-5. The amendment applies to cases such as this one that were certified to the Board after August 4, 2014. See Schedule for Rating DisabilitiesMental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). Under 38 C.F.R. § 3.304 (f)(3), if a stressor claimed by a veteran is related to the veteran's fear of hostile, military, or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Veteran's DD-214 indicates that his military occupational specialty (MOS) was as an armor crewman. In a January 2014 Statement in Support of Claim, the Veteran's wife stated that since 1993, the Veteran's mental, emotional, and physical state has declined making it hard for him and the household. She stated that the Veteran is unable to handle normal sounds as they seem loud to him, and that he spends most of his time in the bedroom by the window. A February 2015 DBQ indicated that the Veteran had a diagnosis of bipolar disorder, and no diagnosis for any other mental disorder. The examining psychologist noted that the Veteran struggled with permanent and debilitating tinnitus, and opined that the Veteran's tinnitus is more likely than not aggravating his bipolar disorder. She noted that there is a body of literature detailing the connection between medical issues, like the ones the Veteran struggles with, and psychiatric disorder, similar to his bipolar disorder complaints. December 2015 VA treatment records indicate that the Veteran has a diagnosis of unspecified bipolar disorder. The Veteran submitted treatise material which addressed a relationship between tinnitus and psychiatric disabilities. In an August 2019 DBQ, the examining psychologist opined that the Veteran's PTSD was at least as likely as not (at least a 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, stating that his symptoms include intrusive/avoidance symptoms, and alterations in mood, cognition, arousal, and reactivities. The psychologist reported that the Veteran experienced hostile encounters as an armor crewman in the Gulf War, and had a fellow service member commit suicide during his service, thus his diagnosed bipolar I disorder is at least as likely as not proximately due to his traumatic experiences. The psychologist also opined that the Veteran's PTSD is less likely than not (less than a 50 percent probability) proximately due to his service-connected tinnitus, as it is not a known cause of bipolar disorder, and his PTSD is due to his in-service stressors. The psychologist did find that the Veteran's bipolar disorder and PTSD were at least as likely as not (at least a 50 percent probability) aggravated beyond their natural progression by his service-connected tinnitus, as it increases his level of stress, and thus reduces his ability to manage his symptoms effectively. The psychologist also noted that the tinnitus symptoms can trigger symptoms of PTSD as it serves as a reminder of military hostile action. An August 2019 DBQ reflects a diagnosis of PTSD as well as bipolar I disorder, with the psychologist noting that it was possible to differentiate what symptoms are attributable to each diagnosis, stating that symptoms of depression and mania were attributable to bipolar disorder, and negative alterations in arousal, reactivity, cognition, and mood, as well as intrusion and avoidance symptoms attributable to PTSD. The Veteran reported that he was in multiple hostile encounters where the tanks were firing at others, and being fired upon. He reported seeing "bad injuries", "one death", and having a friend commit suicide while serving overseas. The psychologist noted that the stressors were related to the Veteran's fear of hostile military or terrorist activity, and was adequate to support a diagnosis of PTSD. The psychologist indicated that the Veteran's claim for depression was subsumed under bipolar disorder, and his claim for memory loss was subsumed under PTSD. An August 2020 administrative decision indicated that the information required to corroborate stressful events in service were insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC), and/or insufficient to allow for meaningful research of National Archives and Records Administration (NARA) records. The Veteran submitted a Statement in Support of Claim in December 2020 wherein he reported that he witnessed the death of a fellow servicemember during a non-battle drill in a grenade pit. He stated that he was thereafter placed on "extra duty" because he was unable to complete his assigned tasks due to what he had witnessed. The Veteran also reported becoming very "nervous and jumpy" during training as that was the first time he experienced weapons being fired from a tank, and also stated that being told that his unit would be going into active combat caused him great anxiety even though ultimately they never were deployed. However, the Veteran reported that a fellow servicemember who told the Veteran he was afraid to be deployed, took his own life as the Veteran walked away from him. In a January 2021 statement, the Veteran's mother indicated that the Veteran did not have any mental issues prior to service, and was active in sports and school, but she noticed a difference after service as the Veteran had trouble sleeping, had back pain, ringing in his ears, was not as social, was depressed, and was much quieter than before. She stated that these issues still continue, and that the Veteran is not the same person he was prior to service. In a March 2021 statement, the Veteran's wife reported that prior to service, the Veteran was very active and outgoing, constantly telling jokes. She stated that he was well behaved and even tempered, with no mental health issues prior to service. The Veteran's wife reported that after the Veteran was discharged, he was not the same person, as he would stand in a room and not talk to anyone which was out of character, as he had previously always enjoyed being around people. She reported that the Veteran prefers to be alone, and lacks motivation to do anything to the point where he does not have a relationship with his children or grandchildren. In a March 2021 addendum statement, the Veteran' private psychologist stated that the Veteran suffers from bipolar disorder caused by his time in service, which has continued uninterrupted to the present, and which is also aggravated by his service- connected tinnitus and lumbosacral strain. The Veteran reported to the psychologist that he began to suffer from anxiety, depression, sleep issues, and isolation while in service, stating that it mainly had to do with the environment of the service. The psychologist noted that the most recent examination report diagnosed PTSD which was at least as likely as not a result of his military service. She stated that research supports the Veteran's symptoms of depression and other issues that developed in service as being the onset of bipolar disorder, which was not officially diagnosed until years after the military. The evidence of record, specifically the August 2019 DBQ, reflects that the Veteran has a current diagnosis of bipolar disorder, and a diagnosis of PTSD which meets the diagnostic criteria under DSM-5 according to a licensed psychologist with whom VA has contracted. While VA has been unable to corroborate the stressful in-service events, the Veteran has provided competent and credible evidence of witnessing the deaths of fellow servicemembers, and being exposed for the first time to weapons being fired from a tank. These stressors as described by the Veteran are consistent with the circumstances of his duties as an armor crewman, and are related to the Veteran's fear of hostile, military, or terrorist activity, as the Veteran witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others. Therefore, the first 2 criteria for establishing service connection for PTSD have been met, and the remaining issue is whether the Veteran's PTSD is related to the in-service stressor. 38 C.F.R. § 3.304 (f). Here, the August 2019 psychologist opined that the Veteran's PTSD is at least as likely as not (at least a 50 percent probability) related to his in-service stressors, and provided a thorough rationale based on an accurate characterization of the evidence of record. Therefore, the August 2019 psychologist's opinion is afforded significant probative value. See Nieves-Rodriguez, 22 Vet. App. at 304. There is no negative nexus opinion of record regarding the etiology of the Veteran's PTSD, and the August 2019 medical opinion is consistent with the additional record, specifically the Veteran's report of psychiatric type symptoms noted in the private psychological evaluation. Therefore, the weight of the evidence supports a nexus between the Veteran's diagnosed PTSD and his in-service stressor. As any reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As indicated above, the Veteran has been diagnosed with bipolar disorder, with the August 2019 psychologist noting that it was possible to differentiate what symptoms are attributable to each diagnosis. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). The evidence reflects that service connection for bipolar disorder is warranted. While the August 2019 psychologist opined that the Veteran's bipolar disorder was at least as likely as not (at least a 50 percent probability) aggravated beyond its natural progression by his service-connected tinnitus, the psychologist also stated that his diagnosed bipolar I disorder is at least as likely as not proximately due to his traumatic experiences in service. Additionally, the Veteran's private psychologist also concluded in the March 2021 statement that the Veteran's bipolar disorder was caused by his time in service and continues to the present. Both the Veteran's private psychologist and August 2019 psychologist provided thorough rationales to support their conclusions based on an accurate characterization of the evidence of record. Thus, their opinions are afforded significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. There are no negative nexus opinions of record regarding the etiology of the Veteran's psychiatric disabilities on a direct causation basis. The Veteran has also provided competent and credible evidence from his wife and mother which indicated that the Veteran had changed significantly after discharge from service. For the foregoing reasons, the evidence reflects that the Veteran's bipolar disorder is related to service. Therefore, entitlement to service connection for bipolar disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § §3.102. Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.