Citation Nr: A25035228 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210613-166318 DATE: April 16, 2025 ORDER Service connection for migraines is granted. REMANDED Service connection for cervical radiculopathy, left upper extremity is remanded. Service connection for cervical radiculopathy, right upper extremity is remanded. Service connection for left hip condition is remanded. Service connection for radiculopathy, left lower extremity sciatica is remanded. Service connection for radiculopathy, right lower extremity sciatica is remanded. FINDING OF FACT 1. The evidence of record persuasively weighs in favor of a finding that the Veteran's migraine disability was incurred in or is otherwise the result of active service. CONCLUSION OF LAW 1.The criteria for service connection for migraines are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army on active duty from October 2000 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of service connection for cervical radiculopathy of the bilateral upper extremity, a left hip disability, and radiculopathy of the bilateral lower extremity, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for certain chronic diseases, including migraines, may also be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). To establish service connection under this provision, there must be evidence of a chronic disease shown as such in service (or within the applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Migraines The Veteran contends that her migraines are related to service. See April 2019 VA 21-526EZ, Fully Developed Claim. VA has conceded a diagnosis of migraines in this case and the Board is bound by this favorable finding. Thus, the first element of service connection-a current disability-is met. The Veteran's entrance exam in September 2000 is negative for frequent or severe headaches. The Veteran is therefore considered sound on entrance into military service. See 38 U.S.C. § 1111. Turning to the other elements, the Veteran reported that she began experiencing migraines around 2003, within one year of her separation in February 2003, and has a longstanding history of migraine headaches, which have continued from military service to present. See May 2019 CAPRI Record, page 577. The Veteran is competent to report the onset and persistent nature of her migraines. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). There is no reason to doubt the Veteran's credibility regarding the onset of her migraines and continuity of symptomatology since service. VA treatment records show that the Veteran was seen for chronic headaches in July 2003 and that she has continued seeking treatment for chronic headaches since. See November 2019 CAPRI Record, page 16. The Board reflects that no formal examination of the Veteran's migraine disability has been obtained at this time. Nonetheless, the Board finds that such is not necessary as the evidence demonstrates that the Veteran's migraines had their onset in military service. Specifically, the Veteran was not noted to have any neurological issues at entrance and within five months of discharge from service, the Veteran's migraine disability is confirmed. Resolving all reasonable doubt in her favor, the evidence demonstrates that the Veteran's initial manifestations of her migraines began during military service and were chronic and continuous from discharge until diagnosis five months after discharge. Accordingly, service connection for migraines is warranted in this case. 38 C.F.R. § 3.303(d). In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Service connection for cervical radiculopathy, left upper extremity is remanded. 2. Service connection for cervical radiculopathy, right upper extremity is remanded. The Veteran contends that her cervical radiculopathy of the bilateral upper extremities is related to service. Specifically, she asserts that her condition started when she tripped and fell during an exercise in service, which caused her shoulder pain, headaches, and neck pain. She reported that after her last road march in 2001, she had pain shooting from her neck into her shoulders. See July 2019 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire; May 2019 Medical Opinion Disability Benefits Questionnaire. Under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), A VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. While VA has provided an examination for the Veteran's claimed neck disability and peripheral neuropathy, VA has not afforded her an examination and opinion for her cervical radiculopathy. While the July 2019 VA cervical spine examination notes no signs and symptoms of radiculopathy, the Veteran has consistently complained of radiating pain from her neck into her arms in service and continuing since. See January 2003 STR. Additionally, VA treatment records from July 2014 show a diagnosis of cervical radiculitis. See May 2019 CAPRI Record, page 583. Based on the above, since there is no competent medical evidence of record for the Board to decide the issue, the Board finds that the low threshold of McLendon is met and that a VA examination is warranted to determine the nature and etiology of her cervical radiculopathy of the bilateral upper extremities. Accordingly, VA's duty to assist the Veteran requires a VA examination in this case pursuant to McLendon. The RO did not provide any such examination, and such is a pre-decisional duty-to-assist error requiring remand. In remanding this matter, the Board makes no findings as to the credibility of the lay evidence provided by the Veteran. Such findings will be made when (or if) this matter returns to the Board. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 3. Service connection for left hip disability is remanded. The Veteran contends that her left hip pain is related to service. Specifically, she asserts that her condition started when she tripped and fell during an exercise in service, which caused her back and hip pain. See May 2019 CAPRI Record, page 144. Under McLendon, 20 Vet. App. at 79, 81, a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. VA has not provided the Veteran a VA examination for her left hip as the AOJ found there is no evidence of a current disability. However, VA treatment records show that she has pain and limited mobility in her hips. See May 2019 CAPRI Record, page 144, 573, 577, 579. Her service treatment records (STRs) show that she sought treatment for pain after a fall in service. See January 2003 STR. Based on the above, since there is no competent medical evidence of record for the Board to decide the issue, the Board finds that the low threshold of McLendon is met and that a VA examination is warranted to determine the nature and etiology of her left hip disability. Accordingly, VA's duty to assist the Veteran requires a VA examination in this case pursuant to McLendon. The RO did not provide any such examination, and such is a pre-decisional duty-to-assist error requiring remand. In remanding this matter, the Board makes no findings as to the credibility of the lay evidence provided by the Veteran. Such findings will be made when (or if) this matter returns to the Board. See Buchanan, 451 F.3d 1331, 1337. 4. Service connection for radiculopathy, left lower extremity sciatica is remanded. 5. Service connection for radiculopathy, right lower extremity sciatica is remanded. The Veteran contends that her left and right lower extremity radiculopathy are related to service. Specifically, she asserts that she has had shooting pains from her low back radiating into her legs since falling in service. See May 2019 Peripheral Nerve Conditions Disability Benefits Questionnaire. The Veteran was afforded a VA peripheral nerves examination in May 2019. The examiner diagnosed the Veteran with left and right lower extremity radiculopathy affecting the sciatic nerve. The Veteran reported shooting pains from her lower back radiating down both legs into her feet constantly since 2002. The examiner did not provide a nexus opinion as to whether the Veteran's left and right lower extremity radiculopathy are related to service. The Board also notes there is no private medical opinion as to the nature and etiology of the Veteran's left and right lower extremity radiculopathy. The Board therefore finds that the medical evidence of record is inadequate to make a fully informed decision on the Veteran's claim of service connection for left and right lower extremity radiculopathy. As such, a remand is necessary to obtain a VA medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of her cervical radiculopathy of the left and right upper extremities. All tests and results should be reported in detail. 2. After reviewing the claims file, the Veteran's service treatment records, post-service medical records, and lay statements, the examiner must state whether: it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left and right lower extremity radiculopathy disability began in service, within one year of discharge therefrom, or is otherwise the result of military service, to include her 2001 fall in service. Note: The examiner must address the Veteran's lay statements regarding onset of symptomatology, as well as continuity of symptomatology. The examiner is reminded that the lack of medical evidence in the Veteran's service medical records is not fatal to her claim and cannot be relied upon, alone, as a rationale for a negative medical opinion. A complete rationale should be provided for any opinions rendered 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of her left hip disability. All tests and results should be reported in detail. 4. After reviewing the claims file, the Veteran's service treatment records, post-service medical records, and lay statements, the examiner must determine the following: (a.) Note all left hip diagnoses found. (b.) For each diagnosis state, whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left hip disability began in service or are otherwise related to service, to include the complaints of pain related to her fall in service. In so addressing the above, the examiner must address any lay statements from the Veteran regarding onset of his symptomatology as well as any statements regarding continuity of symptomatology since onset and/or since discharge from military service. NOTE: The examiner is reminded that the lack of medical evidence in the Veteran's service medical records is not fatal to her claim and cannot be relied upon, alone, as a rationale for a negative medical opinion. A complete rationale should be provided for any opinions rendered. 5. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's left and right lower extremity radiculopathy. The claims file and a copy of this remand should be reviewed by the examiner. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion as to the following: 6. State whether: it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left and right lower extremity radiculopathy disability began in service, within one year of discharge therefrom, or is otherwise the result of military service, to include her 2001 fall in service. Note: The examiner must address the Veteran's lay statements regarding onset of symptomatology, as well as continuity of symptomatology. The examiner is reminded that the lack of medical evidence in the Veteran's service medical records is not fatal to his claim and cannot be relied upon, alone, as a rationale for a negative medical opinion. A complete rationale should be provided for any opinions rendered Cory M. Picton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McNew, 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.