Citation Nr: A25041224 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 241017-483873 DATE: May 6, 2025 ORDER Entitlement to service connection for migraines is granted. Entitlement to service connection for eye symptoms including bilateral dry eye and pink eye, due to undiagnosed illness, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and situational type phobia is remanded. FINDINGS OF FACT 1. The evidence is in approximate balance as to whether the Veteran's current migraine headaches had onset in service. 2. The Veteran served in the Southwest theater of operations during the Persian Gulf War and has had eye symptoms including bilateral dry eye and pink eye in and since service that have not been attributed to a known clinical diagnosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for eye symptoms including bilateral dry eye and pink eye, due to undiagnosed illness, have been met. 38 U.S.C. §§ 1110, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to October 2011, and from March 2013 to March 2014, including service in the Southwest Asia theater of operations during the Persian Gulf war. This case comes before the Board of Veterans' Appeals (Board) from January 2024 and June 2024 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the January 2024 rating decision, the RO denied service connection for PTSD. In the June 2024 rating decision, the RO denied service connection for migraines, conjunctivitis and dry eye syndrome. With regard to PTSD, the claim has been recharacterized and broadened to include situational type phobia, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). In the October 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, for migraines, the Board may only consider the evidence of record at the time of the June 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. For psychiatric disorder, conjunctivitis and dry eye syndrome, the Board may only consider the evidence of record at the time of the February 2024 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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 claims, 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 entitlement to service connection for an acquired psychiatric disorder, to include PTSD and situational phobia, 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). The Board notes that less than one year has elapsed since the June 2024 rating decision on appeal. Generally, the Board may not decide an appeal prior to the expiration of the one year period. Williams v. McDonough, 37 Vet. App. 305 (2024). However, in a March 2025 informal hearing presentation to the Board, the Veteran's representative specifically requested the Board to "proceed with adjudication of the claim" as there was no additional argument to provide. The representative further stated that the Veteran waives prior review of all new evidence before the AOJ. The Board interprets the statement to mean that the Veteran's representative believes the appeal is ready for review and adjudication and does not want the Board to wait until the expiration of the one year period. 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, air, or space service. 38 U.S.C. § 1110; 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). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he or she files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. In Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court elaborated that the date of claim is not dispositive in this regard. Rather, when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Migraines For the following reasons, the Board finds that the Veteran has current migraine headaches, and that the evidence is approximately evenly balanced as to whether this disability began during active service. As such, discussion of secondary service connection is not necessary. In the January 2024 rating decision, the RO favorably found that the Veteran has a current diagnosis of migraine headaches as noted on a June 2024 VA examination report and that participation in a toxic exposure risk activity (TERA) is conceded as an October 2023 TERA memo concedes exposures to particulate matter while the Veteran was deployed in Djibouti from July 2013 to February 2014. The Board is bound by these favorable findings. See 38 C.F.R. § 3.104 (c). Therefore, the first and second elements of service connection are met. During the June 2024 VA examination, the Veteran reported that his headaches began in 2013 with symptoms such as photophobia, phonophobia, and nausea. He stated that headache pain began in the back of the head, then progressed to the front left side, and continued since service. The Veteran's statement is competent. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witnesses are competent to testify regarding observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The examiner opined that the Veteran's migraines were less likely than not proximately due to or the result of the Veteran's service-connected neck disability, or cervical radiculopathy of the bilateral upper extremities. The examiner did not provide an opinion regarding direct service connection. The examiner also opined that the Veteran's migraines were less likely than not caused by the indicated toxic exposure risk activity(ies), after considering the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. The June 2024 VA opinions are not probative because they did not consider direct service connection, to include the competent, credible lay statements made by the Veteran and thus the examination is inadequate. Buchanan, 451 F.3d at 1336 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The Veteran has provided competent evidence of headaches experience in and since service. There is nothing to explicitly contradict this report and it is consistent with the evidence of record. Moreover, there is no evidence of record which indicates the Veteran lacks credibility. Jandreau, 492 F.3d at 1377 (a veteran is competent to testify as to observable symptoms); Buchanan, 451 F.3d at 1337 (lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's migraine headaches had onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraine headaches on a direct basis is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Eye Symptoms due to Undiagnosed Illness Under certain circumstances, service connection may be presumed when the veteran meets the requirements of presumptions established by statute and regulation, in particular 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Gutierrez v. Principi, 19 Vet. App. 1, 8 (2004). For Persian Gulf war veterans who exhibit objective manifestations of a qualifying chronic disability, 38 U.S.C. § 1117 provides for presumptive service connection when the disability manifests "to any degree at any time" and which, "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses." 38 C.F.R. § 3.317(a)(1)(i), (ii). A "qualifying chronic disability" includes one that results from an "undiagnosed illness." 38 U.S.C. § 1117(a)(2)(A); 38 C.F.R. § 3.317(a)(2)(i)(A). Disabilities that have existed for 6 months or more will be considered chronic. 38 C.F.R. § 3.317(a)(4). The list of signs or symptoms of undiagnosed illness are not limited to those listed in 38 C.F.R. § 3.317(b) ("signs or symptoms which may be manifestations of undiagnosed illness . . . include, but are not limited to) (emphasis added). Service treatment records (STRs) show treatment for conjunctivitis in August 2009 and "red eyes" in March 2013. Additionally, neovascularization of the right cornea and chorioretinal scar of the left eye are noted in May 2013 and January 2014. Significantly, although the Veteran implicitly indicated in his February 2024 claim that he had eye symptoms "ever since" his deployment. Significantly, post-service medical treatment records do not show any complaints, treatment or diagnoses of any eye disabilities. The Veteran has thus met the criteria for service connection due to undiagnosed illness. He served in the Southwest Asia theater of operations during the Persian Gulf war as indicated in a December 2022 VA memorandum and his DD 214 and personnel records. Moreover, the Veteran has had eye symptoms in and since service, meeting the 6 months or more criterion. In addition, his eye symptoms have not been attributed to a known clinical diagnosis. Entitlement to service connection for eye symptoms including bilateral dry eye and bilateral pink eye have been met. REASONS FOR REMAND An acquired psychiatric disability, to include PTSD and situational type phobia is remanded. In Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim. Although the claim on appeal that was denied was for service connection for PTSD, the Board will broaden the Veteran's claim and consider all psychiatric diagnoses raised by the record. An August 2021 private treatment record shows that the Veteran was treated for situational anxiety. The clinician diagnosed the Veteran with other situational type phobia, which is listed in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Thus, a current disability has been demonstrated. In a November 2023 statement, the Veteran stated that while on active duty serving as a military police officer, he discovered the body of a man who committed suicide. He also stated that another time, while on active duty serving in Djibouti, he feared that he was under terrorist attack when locals jumped on his truck while he was stopped at a light. He exited the vehicle with his gun drawn and was prepared to shoot; however, he realized that the locals were not terrorists and were only in search of food. The Veteran stated that he now has anxiety whenever he leaves his house. Based on the Veteran's lay statements, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current acquired psychiatric disability and his military service. The Veteran was not afforded a VA examination for his claim of service connection for his acquired psychiatric disability. VA is obliged to provide an examination or obtain a medical opinion in a claim when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a current disability, the record indicates that the disability or persistent or recurrent symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the evidence shows psychiatric symptoms that may be associated with his military service, a remand for an examination and opinion on this issue is warranted. McLendon, 20 Vet. App. at 83 The matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician to determine whether it is approximately at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has a psychiatric disorder other than PTSD that had its onset in or is related to service. If PTSD is diagnosed, the clinician should indicate whether it is related to an in-service stressor, to include that described by the Veteran in his November 2023 statement. The claims file should be provided to and reviewed by the clinician. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill, 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.