Citation Nr: 22016499 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-12 699 DATE: March 22, 2022 ORDER Service connection for left knee strain/patellofemoral pain syndrome/anterior cruciate ligament ("ACL") tear/medial collateral ligament ("MCL") tear (hereinafter referred to as "left knee disability") is granted. Service connection for migraines is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran's left knee disability is proximately due to his service-connected left leg shin splints. 2. Resolving reasonable doubt in the Veteran's favor, his migraines began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability as secondary to service-connected left leg shin splints are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.310 (2021). 2. The criteria for service connection for migraines are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2005 to June 2005, and from June 2006 to June 2007, with additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran presented testimony before a Decision Review Officer (DRO); a transcript of that hearing is in the record. This case was remanded in March 2020 for further development; it has since been re-assigned to the undersigned. The Agency of Original Jurisdiction (AOJ) last adjudicated the issue on appeal in an October 2020 supplemental statement of the case. Since that time, additional VA treatment records, to include VA examination reports, have been added to the claim file. A waiver of AOJ review was not submitted for those records. Given the favorable nature of the grants of service connection for the issues on appeal, there is no prejudice to the Veteran in the Board so proceeding. Service Connection 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). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. at 53. 1. Service connection for a left knee disability is granted. The Veteran contends that his left knee disability is directly related to service or is caused and/or aggravated by his service-connected left leg shin splints. During his March 2007 separation report of medical history, the Veteran reported trouble with his left ankle, but not with his left knee. In a May 2008 reserve report of medical history, the Veteran reported left knee pain, explaining that it "sometimes hurts (sic) when I turn it a certain way or angle." There is no question that the Veteran incurred a knee injury post service that eventually required surgery. A September 2013 VA treatment record notes that he sprained his left knee following a game of basketball; he denied prior knee pain during that treatment. A January 2014 VA examiner noted the Veteran's post service injury and stated it was "not service related." He further opined that the left knee injury was not related to the Veteran's current left ankle and shin splints, but to a post-service injury caused by playing basketball. During an April 2014 VA examination, the Veteran stated that he went to sick call during service after falling backwards and having his knee get caught under him. His left knee got better, and he was able to play basketball, but pain continued in and post service, and increased when he injured his left knee again in August 2013. The examiner stated that the left knee injury was clearly related to an acute basketball injury and not related to his service. Further, the history of left ankle sprain and left shin splint were not factors in the left knee injury. The Board finds this opinion inadequate as it fails to consider the Veteran's competent reports. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion). During his January 2018 DRO hearing, the Veteran testified that he injured his left knee during service and that his left knee continued to hurt from that point, but that he would self-medicate to relieve the pain. An August 2019 VA examiner opined, without rationale, that the Veteran's left knee disability was not related to active duty. No opinion was provided regarding whether such was caused or aggravated by his service-connected left shin disability. An August 2020 VA examiner opined that it was less likely that the Veteran's ACL tear and patellofemoral pain syndrome were caused or aggravated by his service-connected shin splints since there is "no anatomical/ pathophysiological/ physio-kinetics connection." The Board finds both of these examinations inadequate as the August 2019 VA examiner provided no rationale for his conclusion and the August 2020 VA examiner provided the same rationale regarding causation and aggravation without explanation. A June 2021 VA examiner included diagnoses of left knee strain, patellofemoral pain syndrome, and ACL/MCL repair, and concluded that all of these conditions were "directly due to or related to the service connected diagnosis (i.e., a progression)[.]" He noted that there was evidence of knee pain prior to separation, and that the Board was looking for information regarding the left knee "but previous decisions have not allowed for a relationship with shin splints (I would disagree with that)." He concluded that all the additional diagnoses are "tied to the ankle/shin splint conditions." The Board finds the Veteran's testimony that he experienced left knee symptoms during service that progressively got worse both competent and credible and therefore assigns it significant probative weight. The Board also finds it significant that a VA examiner determined that the Veteran's left knee disability was directly related to his service-connected diagnosis of left leg shin splints and that his left knee disability was tied to the ankle/shin splint condition. In view of the totality of the evidence, including the positive opinion from the June 2021 VA examiner, in contrast to the earlier inadequate opinions, the Board finds that it is more likely that the Veteran's left knee disability is caused by his service-connected left leg shin splints (rather than directly related to service). The Board therefore finds that the evidence is at least in equipoise and applying the benefit of the doubt doctrine, service connection for a left knee disability is warranted. Gilbert, 1 Vet. App. at 53-56. 2. Service connection for migraines is granted. The Veteran contends that his migraines are directly related to service, specifically to wearing tight headgear, grenade explosions, excessive heat, machine gunfire, malaria pills, truck noise, engine fumes, and morning smog. See January 2020 correspondence. There is no question that the Veteran has a diagnosis of migraines. See December 2017 private treatment record. During his March 2007 separation report of medical history, the Veteran denied headaches. However, during a May 2008 periodic health assessment and report of medical history, he reported frequent headaches that lasted for approximately 10 minutes and then resolved spontaneously. The military medical examiner stated that the Veteran's headaches started approximately six months prior and questioned whether it was a tension or migraine variant. During an April 2014 VA headaches examination, the Veteran reported that his headaches began as a youth and occurred every few months. After his deployment in 2007, however, they began to come much more frequently and continued to do so to the present. The examiner stated that the Veteran's headaches were a pre-existing condition and that migraines could be triggered by "heat, humidity, stress, lack of stress, certain smells, certain foods, and other factors." Absent an in-service head injury, however, he could "only speculate that [the Veteran's] service may have altered his headache disorder." In regard to any pr-existing condition, the Board notes that the AOJ determined in May 2014 that the Veteran was sound at entrance and that there was no clear and unmistakable evidence showing that the condition existed prior to service. See May 2014 codesheet. The Board agrees with this finding. During September 2015 VA treatment, the Veteran reported migraines that occurred for the last six to eight months; during separate treatment that month, he reported headaches on and off "for years." He underwent a CT scan years earlier by an outside provider and believed he had a migraine diagnosis. A February 2015 VA provider stated that the Veteran's chronic headaches were "[l]ikely from sinusitis." In a May 2016 notice of disagreement, the Veteran stated that VA believed his asthma and allergies were the reason for his headaches: sinus buildup caused him to have headaches on a constant basis. During his January 2018 DRO hearing, the Veteran stated that his headaches spontaneously started during service and that he had continued having headaches after service. He self-medicated with over-the-counter medications until he realized he could seek treatment at VA. An August 2020 VA examiner stated that the Veteran's headaches resolved in 2006/2007 with no evidence of "chronicity/recurrence/progression/sequelae" and that his current headaches were less likely from service. The examiner noted the Veteran's lay contentions but concluded that migraines were diagnosed in 2015 based on history of headaches "for a few months." The Board finds this examination inadequate as it is based on an inaccurate factual premise, despite the examiner's statement that he considered the Veteran's lay contentions. The evidence shows that the Veteran reported headaches for years, not just "for a few months." During a January 2022 VA sinusitis examination, allergic rhinitis was diagnosed. The Veteran reported his symptoms as including intermittent runny nose, headaches, red eyes, and sneezing, which he stated began gradually while deployed and which have progressively gotten worse. In a January 2022 rating decision, the AOJ granted service connection for rhinitis. Based on the foregoing, the Board finds that there is no question that the Veteran has a diagnosis of migraines and that he also gets headaches as a result of his now service-connected allergic rhinitis. However, the Board finds that there is sufficient evidence to distinguish the two (and also notes that the grant of service connection for rhinitis would not necessarily preclude granting service connection for migraines). The Board is left with the Veteran's competent and credible statements and testimony that he experienced headaches in service which progressively worsened after service. Accordingly, and resolving reasonable doubt in his favor, the Board finds that service connection for migraines is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert, 1 Vet. App. at 49. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.