MIGRAINE

BRADLEY W. HENNINGS · 2018 · Case ID: 1812786

MIXED

Summary

The veteran, who served from January 1992 to March 1995, appeals the denial of service connection for tension headaches and seeks increased evaluations for bilateral pes planus, plantar fasciitis, and residuals of a left knee injury. The Board granted service connection for tension headaches, finding that the headaches manifested in service and continued to date. The decision noted that service treatment records (STRs) documented a January 1993 motor vehicle accident (MVA) where the veteran sustained a head injury with loss of consciousness and complained of headaches and double vision. Although an initial VA examiner opined against service connection due to a lack of documented treatment post-service, the Board found this opinion inadequate as it did not consider all STRs and the veteran's lay statements. Later submitted STRs corroborated the veteran's account of the MVA and his complaints. An independent medical examiner characterized the headaches as nonspecific, daily, and incapacitating, finding them a residual of the in-service TBI. The Board found the medical evidence in relative equipoise but gave significant probative value to the veteran's credible lay statements regarding continuity of symptoms. Applying the benefit of the doubt, service connection for tension headaches was granted. The issues of increased evaluations for bilateral pes planus, plantar fasciitis, and left knee residuals were remanded for further development, including obtaining current treatment records and scheduling updated VA examinations.

Rationale

STRs documented in-service MVA with head injury and headache complaints.; Lay statements corroborated continuity of headaches.; Medical evidence in relative equipoise, with benefit of doubt resolved in veteran's favor.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-29 965

Full Decision Text

Citation Nr: 1812786
Decision Date: 03/05/18 Archive Date: 03/13/18

DOCKET NO. 14-29 965 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia

THE ISSUES

1. Entitlement to service connection for tension headaches.

2. Entitlement to an increased evaluation for bilateral pes planus and plantar fasciitis.

3. Entitlement to an increased evaluation for residuals of a left knee injury.

REPRESENTATION

Veteran represented by: Jan Dils, Attorney

ATTORNEY FOR THE BOARD

C. Edwards, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1992 to March 1995.

This appeal to the Board of Veterans' Appeals (Board) arose from September 2012 and April 2013 decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

The Veteran was scheduled for a Board hearing before the undersigned Veteran's Law Judge (VLJ) at the RO in August 2016. Unfortunately, on the date of the scheduled hearing, the Veteran's representative informed the VLJ that he was unable to attend the hearing. As such, the Veteran's authorized representative presented oral argument in support of the Veteran's appeal. See 38 C.F.R. § 20.701 (2017) (providing that the appellant and/or his or her representative may appear and present argument in support of an appeal). A transcript of the hearing is of record.

At the hearing, the undersigned agreed to hold the record open for 30 days to allow for the submission of additional evidence. The referenced evidence has been submitted, and the time period to hold the record open has passed. Thus, there is no prejudice to the appellant in proceeding with the appeal at this time.

In this decision, the Board is granting service connection for tension headaches. The issues of entitlement to an increased evaluation for bilateral foot and left knee disabilities are REMANDED to the RO for additional development.

FINDINGS OF FACT

In resolving all doubt in the Veteran's favor, the headaches manifested in service have continued to date.

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Service Connection

Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. In general, service connection requires competent evidence showing: (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury where nexus evidence establishes a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310(a) (2016); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).

For a chronic disability to be established through continuity of symptomatology, the claimant must demonstrate (1) evidence that a
or aggravated by, a service-connected disease or injury where nexus evidence establishes a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310(a) (2016); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).

For a chronic disability to be established through continuity of symptomatology, the claimant must demonstrate (1) evidence that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

Regarding the Veteran's headache disability, STRs show that he was involved in a MVA in January 1993 in which he hit his head causing a 10 to 15 minute loss of consciousness and a laceration on the right side. He complained of headaches on scene, and a physician later noted low grade periorbital headaches (throbbing) on the right side along with double vision. A later physician noted that the Veteran continued to have occasional headaches which he controlled with Advil. The Veteran reported that he continued to self-treat continuous, intermittent headaches in the same manner from separation.

A February 2013 VA examiner opined that the Veteran's disability was not related to service due to the fact that STRs contained no documented evidence of loss of consciousness, complaints of headaches, or evidence of medical treatment for a chronic headache problem after discharge. The Board finds the VA examiner's opinion to be inadequate because it is not based on a complete STR record and fails to take into account the Veteran's lay statements. Later submitted STRs corroborated the Veteran's recollection of events, and the Veteran is competent to report symptoms of headaches.

Additionally, a September 2016 independent medical examiner characterized the Veteran's headaches as nonspecific, present daily and occasionally incapacitating and found them to be a residual symptom of a TBI sustained in his MVA. The Veteran reported that he had headaches about twice a month that lasted hours but could last up to a day since his in-service MVA.

The Board finds the medical evidence to be in relative equipoise. However, the Veteran's credible lay statements are of significant probative value and the most persuasive evidence with regards to the question of whether his current headaches are chronic and continuous since service.

The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for headaches is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").

ORDER

Service connection for tension headaches is granted.

REMAND

The issues of whether the Veteran is entitled to an increased evaluation for bilateral pes planus and plantar fasciitis and a left knee injury are remanded for further development.

The Veteran's representative noted that he had last been examined in February 2013 and a current examination was needed to assess the present severity of his disabilities. An updated examination should be conducted.

While on remand, additional treatment records should be obtained, if available.

Accordingly, the
. . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").

ORDER

Service connection for tension headaches is granted.

REMAND

The issues of whether the Veteran is entitled to an increased evaluation for bilateral pes planus and plantar fasciitis and a left knee injury are remanded for further development.

While on remand, additional treatment records should be obtained, if available.

Accordingly, the case is REMANDED for the following action:

1. Obtain current VA treatment records since April 2013.

2. Schedule the Veteran for an appropriate examination for a report on the current severity of his bilateral foot disability and left knee disability.

3. After completing the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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