Case A26031808

Summary

The Veteran served on active duty from July 1986 to August 1998. The Veteran appealed a November 2020 deferred decision regarding service connection for a bilateral eye condition and a neck condition. The Board dismissed these appeals, citing a lack of jurisdiction over deferred decisions and noting that the Veteran's service connection for a bilateral eye condition was already ongoing. The Veteran also appealed the denial of service connection for bilateral shin splints. The Board granted service connection for bilateral shin splints, finding current disability documented by a October 2024 DBQ and an August 2019 VA examination, and establishing an in-service incurrence through November 1986 and March 1987 service treatment records, corroborated by a private medical opinion. The Board overturned a prior favorable finding by the AOJ regarding PTSD stressors, deeming it clear and unmistakable error as it was based solely on receipt of the Kuwait Liberation Medal without sufficient corroboration. The case was remanded for the AOJ to provide adequate assistance in corroborating the PTSD stressor, as the prior favorable finding was erroneous. Additionally, the case was remanded for a new VA examination to assess the severity of service-connected migraine headaches without the ameliorating effects of medication, as the prior examination was inadequate in this regard.

Full Decision Text

Citation Nr: A26031808
Decision Date: 04/07/26	Archive Date: 04/07/26

DOCKET NO. 201201-129739
DATE: April 7, 2026

ORDER

The appeal of the November 2020 deferred decision on entitlement to service connection for a bilateral eye condition is dismissed.

The appeal of the November 2020 deferred decision on entitlement to service connection for a neck condition is dismissed.

Entitlement to service connection for bilateral shin splints is granted.

REMANDED

Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.

Entitlement to a compensable initial rating for migraine headaches is remanded. 

FINDINGS OF FACT

1. The Veteran appealed a November 2020 deferral of a decision on entitlement to service connection for a bilateral eye condition and a neck condition.

2. The Veteran currently has bilateral shin splints that were incurred coincident with service.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal of the November 2020 deferred decision on entitlement to service connection for a bilateral eye condition and a neck condition are met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.104(c).

2. The criteria for entitlement to service connection for bilateral shin splints are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

INTRODUCTION

The Veteran served on active duty from July 1986 to August 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 5, 2020, rating decision by a Department of Veterans Affairs (VA) regional office, which is the agency of original jurisdiction (AOJ).

In December 2020, VA received the Veteran's Notice of Disagreement (NOD) electing the Board's Hearing docket. This restricts the Board's review to the evidence of record at the time of the November 5, 2020, rating decision and evidence submitted by the Veteran or his representative on the date of or within 90 days after the July 19, 2024, Board hearing. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.302. 

Applicable Evidentiary Window

Given the Veteran's election of the Hearing docket, in this decision the Board has only considered the evidence of record before the AOJ at the time of the decision on review, the testimony provided at the July 19, 2024, Board hearing, and evidence submitted within 90 days thereafter. 38 U.S.C. § 7113(b); 38 C.F.R. §§ 20.300(a), 20.302(a).

If the Veteran would like VA to consider any evidence that was added to the claims file 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. Specific instructions for filing a Supplemental Claim are included with this decision. Cook v. McDonough, 36 Vet. App. 175 (2023). For the remanded claims, if evidence was associated with the claims file during a period of time for which the Board cannot review the evidence, the Board has not considered that evidence in this decision, but the evidence will be considered by the AOJ when it readjudicates the matter following this decision. See 38 C.F.R. § 20.802(c). 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appeal of the November 2020 deferred decision on entitlement to service connection for a bilateral eye condition is dismissed.

The appeal of the November 2020 deferred decision on entitlement to service connection for a neck condition is dismissed.

The Veteran's NOD includes an appeal of a November 2020 deferral of a decision on entitlement to service connection for a bilateral eye condition and a neck condition. See December 1, 2020, VA Form 10182. But the Board does not have jurisdiction to adjudicate these appeals, because a deferred decision is not a decision affecting the provision of benefits. See 38 U.S.C. §§ 511(a), 7104(a). Therefore, the Board cannot entertain the requested review of the November 2020 deferral of a decision on service connection for a bilateral eye condition and a neck condition. Id. The Board notes here that the Veteran and his representative were notified of this jurisdictional defect at the July 2024 Board hearing and were given an opportunity to respond to it then or within the applicable period thereafter
 on entitlement to service connection for a bilateral eye condition and a neck condition. See December 1, 2020, VA Form 10182. But the Board does not have jurisdiction to adjudicate these appeals, because a deferred decision is not a decision affecting the provision of benefits. See 38 U.S.C. §§ 511(a), 7104(a). Therefore, the Board cannot entertain the requested review of the November 2020 deferral of a decision on service connection for a bilateral eye condition and a neck condition. Id. The Board notes here that the Veteran and his representative were notified of this jurisdictional defect at the July 2024 Board hearing and were given an opportunity to respond to it then or within the applicable period thereafter. See July 19, 2024, Board Hearing Transcript. Thus, the considerations underlying 38 C.F.R. § 20.104(c) for notice and opportunity to respond have been satisfied in this case.

Accordingly, the appeal of the November 2020 deferred decision on service connection for a bilateral eye condition and a neck condition is dismissed. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.104(c). The Board notes that service connection was eventually awarded for a bilateral eye condition, and that the dismissal of these appeals does not affect the Veteran's ongoing award for that condition.

Entitlement to service connection for bilateral shin splints is granted.

The Veteran appeals the November 2020 rating decision's denial of service connection for bilateral shin splints. After reviewing all of the evidence, and resolving any reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for bilateral shin splints may be granted.

Generally, service-connected compensation is warranted for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing entitlement to service connection generally requires 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 event, injury, or disease and the present injury or disease. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

First, the Board finds that the current-disability element is satisfied. The Veteran submitted an October 2024 Disability Benefits Questionnaire (DBQ) from Dr. E.W., who physically examined the Veteran and diagnosed him with bilateral shin splints. See October 14, 2024, Dr. E.W. DBQ. So too was the Veteran found to have bilateral shin splints at an August 2019 VA examination provided in conjunction with his service-connection claim. See August 21, 2019, VA Examination. (Although the "Diagnosis" section of the August 2019 VA examination report did not check the box to indicate a diagnosis of shin splints, in the "Additional Comments" section of the report, the examiner checked the "Yes" boxes to all of the questions regarding whether the Veteran currently had shin splints. Id.) The Board therefore finds that the evidence persuasively supports that the Veteran currently has bilateral shin splints.

The Board additionally finds that the evidence establishes an in-service incurrence of shin splints to which the current disability is connected. A November 1986 service treatment record noted the Veteran's anterior tibia pain since boot camp, which was assessed as shin splints. See November 3, 1986, STR. Three months later, a March 1987 STR documented that the Veteran was seen again for shin pain that had begun in boot camp, again formally assessed as bilateral shin splints. See March 10, 1987, STR. Although a follow-up STR six days later assessed "resolved" shin splints, the Veteran was advised to continue taking Motrin and applying hot packs to the shins, and he was also advised to wear different boots for better support. See March 16, 1987, STR. Then, at the Veteran's separation examination, he reported having shin splints and intending to seek VA disability compensation for that problem. See July 1, 1998, Report of Medical History and Report of Medical Assessment. Dr. E.W. submitted a letter opining that, based on the documented in-service problems and the Veteran's medical history, the Veteran's current shin splints at least as likely as not began in service. See October 14, 2024, Dr. E.W. Functional Capacity Evaluation Summary Report. The August 2019 VA examiner purported to offer a negative etiology opinion, but the opinion failed to address the STRs,
 boots for better support. See March 16, 1987, STR. Then, at the Veteran's separation examination, he reported having shin splints and intending to seek VA disability compensation for that problem. See July 1, 1998, Report of Medical History and Report of Medical Assessment. Dr. E.W. submitted a letter opining that, based on the documented in-service problems and the Veteran's medical history, the Veteran's current shin splints at least as likely as not began in service. See October 14, 2024, Dr. E.W. Functional Capacity Evaluation Summary Report. The August 2019 VA examiner purported to offer a negative etiology opinion, but the opinion failed to address the STRs, so it is of no probative value. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Resolving any reasonable doubt in the Veteran's favor, the Board finds the evidence is sufficient to establish a nexus between his current shin splints and the in-service injury. 

In turn, with all of the criteria for service connection satisfied, entitlement to service connection for bilateral shin splints is granted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303.

REASONS FOR REMAND

Entitlement to service connection for PTSD is remanded.

The Veteran appeals the November 2020 rating decision's denial of service connection for PTSD. Remand is needed to ensure that the AOJ provides fully adequate assistance in researching for evidence corroborating an alleged in-service stressor.

An essential component of entitlement to compensation for PTSD is evidence corroborating the alleged stressor to which PTSD is contended to relate. VA's Adjudication Procedures Manual ("M21-1") instructs the AOJ that if a stressor cannot be a corroborated based on the evidence of record, the AOJ should attempt to procure corroborating evidence by requesting additional military research. M21-1, Part VIII, Subpart iv, Chapter 1, Section A, Topic 3.d. Moreover, if there is insufficient information of record for the AOJ to issue such a research request, then the AOJ is instructed to send the claimant a subsequent development letter requesting more information within 30 days. Id. In this case, the AOJ neither requested research to corroborate the Veteran's alleged stressor nor sent a subsequent development letter to the Veteran requesting more information.

One reason that the AOJ may not have complied with that standard assistance procedure is because of a favorable finding the AOJ made in the decision on appeal. The AOJ "concede[d] you experienced a stressful event in service or fear of hostile military or terrorist activity. Your Service Personnel Records confirm receipt of the Kuwait Liberation Medal." See November 3, 2020, Rating Decision. And the M21-1 says not to send a subsequent development letter "if the evidence of record shows that ... a confirmed stressor is already of record." See M21-1, Part VIII, Subpart iv, Chapter 1, Section A, Topic 2.5. So, given that the AOJ planned to favorably find the stressor element, it may have concluded that corroborating evidence-and therefore any assistance procuring such corroborating evidence through additional research-was not needed.

The problem is that the favorable finding is clear and unmistakable error. This is because the AOJ's concession of a stressor based on fear of hostile military or terrorist activity appears predicated entirely on the Veteran's receipt of the Kuwait Liberation Medal, without any additional supporting evidence. 

To begin, the Veteran never sufficiently alleged a stressor relating to fear of hostile military or terrorist activity. He submitted a VA Form 21-0781 (Statement in Support of Claim for PTSD) with his claim, but all he said on that submission was that there was an incident involving the death of a servicemember in connection with "Classified ops as Navy SEAL" either in January 1986 on the U.S.S. Dwight D. Eisenhower (which is prior to the Veteran's term of active service) or in October 1987. See July 16, 2019, VA Form 21-0781. Moreover, at the VA examination provided in conjunction with the claim, the Veteran described a stressor related to his 

recurrent nightmares about 'a fight with the guys.' He then said 'it wasn't with the guys, it was the people we were opposed.' He then states 'I'm not sure, I think it had something to do with the Gulf [W]ar.' He was unable or unwilling to provide additional information about this purported stressor event.

See October 18, 2019, VA PTSD Examination.
.S.S. Dwight D. Eisenhower (which is prior to the Veteran's term of active service) or in October 1987. See July 16, 2019, VA Form 21-0781. Moreover, at the VA examination provided in conjunction with the claim, the Veteran described a stressor related to his 

recurrent nightmares about 'a fight with the guys.' He then said 'it wasn't with the guys, it was the people we were opposed.' He then states 'I'm not sure, I think it had something to do with the Gulf [W]ar.' He was unable or unwilling to provide additional information about this purported stressor event.

See October 18, 2019, VA PTSD Examination. The VA examiner checked the box to indicate that alleged stressor was not related to fear of hostile military or terrorist activity. Id. So, the evidence available to the AOJ clearly and unmistakably was insufficient to have established a stressor based on fear of hostile military and terrorist activity. 

In addition, the AOJ provided no basis for concluding that an award of the Kuwait Liberation Medal in and of itself is sufficient to establish a stressor of fear of hostile military or terrorist activity. The M21-1 does provide that "[t]he receipt of military awards such as, but not limited to, the ... Kuwait Liberation Medal ... is generally considered evidence of service in an area of potential hostile military or terrorist activity." M21-1 Adjudication Procedures Manual, Part VIII, Subpart iv, Chapter 1, Section A, Topic 3.k. (emphasis added). But this concession is merely about the potential for a claimant experiencing fear or hostile military or terrorist activity. The M21-1 does not go so far as to say that receipt of the Kuwait Liberation Medal in and of itself establishes a corroborated stressor related to fear of hostile military or terrorist activity for any and every servicemember who received that award. 

Because the November 2020 favorable finding conceding a stressor related to fear of hostile military or terrorist activity was clear and unmistakable error, the Board overturns it, and it is of no binding effect in this or future adjudications. 38 C.F.R. §§ 3.104(c), 20.801.

With that concession overturned, the Veteran's claim for service connection for PTSD will require him to submit evidence corroborating an alleged stressor. That in turn means that the AOJ had a duty to have assisted the Veteran as set forth in the M21-1, either by requesting research to attempt to procure corroborating evidence or by sending the Veteran a subsequent development letter requesting that he provide more information for the purpose of facilitating research. M21-1, Part VIII, Subpart iv, Chapter 1, Section A, Topic 3.d.

To cure the AOJ's duty-to-assist error at the time of the rating decision on appeal, remand is justified. 38 U.S.C. § 5103A(f)(2); 38 C.F.R. § 20.802(a). 

Entitlement to a compensable initial rating for migraine headaches is remanded. 

The Veteran appeals the November 2020 rating decision's assignment of a noncompensable initial rating for his service-connected migraine headaches. (While this appeal was pending, the AOJ newly assigned a 50-percent rating for the condition on and after December 18, 2025. See January 13, 2026, Rating Decision.) At this time, the Board finds that remand is necessary for an evaluation of the severity of the Veteran's migraines without the ameliorating effects of medication. 

In conjunction with the Veteran's original service-connection claim, a VA examination was provided in February 2020. See February 10, 2020, VA Examination. The Veteran was recorded as taking Imitrex to treat his migraines. Id. When VA applies rating criteria that do not expressly discuss the use of medication, the disability rating must be assigned based on the severity of the disability without any ameliorating effects of medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); Ingram v. Collins, 38 Vet. App. 130, 135 (2025) ("Jones [v. Shinseki] and McCaroll [v. McDonald, 28 Vet. App. 267 (2016)] ... remain good law."); see Spicer v. McDonough, 61 F.4th 1360, 1366 (Fed. Cir. 2023) (holding that "some speculation is baked into" VA's "assess[ing] the ameliorative effect of a medication for purposes of determining certain ratings"). The rating criteria under which the Veteran's migraine headaches are rated (Diagnostic Code 
, 26 Vet. App. 56, 63 (2012); Ingram v. Collins, 38 Vet. App. 130, 135 (2025) ("Jones [v. Shinseki] and McCaroll [v. McDonald, 28 Vet. App. 267 (2016)] ... remain good law."); see Spicer v. McDonough, 61 F.4th 1360, 1366 (Fed. Cir. 2023) (holding that "some speculation is baked into" VA's "assess[ing] the ameliorative effect of a medication for purposes of determining certain ratings"). The rating criteria under which the Veteran's migraine headaches are rated (Diagnostic Code 8100) do not discuss medication, so the Board must rate the disability discounting for the ameliorating effects of medication. See 38 C.F.R. § 4.71a. The Board is unable to soundly do so, however, because the February 2020 examination did not indicate that it was an assessment of the severity without the ameliorating effects of medication, and there is not any other examination of record that assessed the disability without the ameliorative effects of medication.

To cure the AOJ's failure to have obtained a fully adequate medical examination, remand is justified. 38 U.S.C. § 5103A(f)(2); 38 C.F.R. § 20.802(a). 

Other than where expressly discussed in this decision, the Board by this remand makes no determination concerning the credibility of any statements on file.

The matters are REMANDED for the following action:

1. Assist the Veteran in procuring evidence to corroborate his alleged stressor(s) for the service-connection claim for PTSD. This assistance should include requesting military research and/or sending the Veteran a subsequent development letter requesting that he provide more information about the alleged stressor(s). 

2. Schedule the Veteran for an examination regarding the severity of his service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria on and after April 2019. Furthermore, the report should be rendered assuming that the Veteran were not benefiting from the ameliorating effects of medication (to include Imitrex).

If the examiner is unable to provide any of the requested information without resorting to speculation, the examiner should state whether the inability is due to a deficiency in the record (additional facts are required), the examiner's lack of expertise (does not have the required training or knowledge), or a limitation of the medical community at large (no one could respond given medical science and the known facts)

A rationale must be provided for all opinions expressed. 

 

C.B. Iwanowski

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Davis, 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.