MIGRAINE

S.C. KREMBS · 2026 · Case ID: A26038923

MIXED

Summary

The veteran, who served in the Army National Guard with multiple periods of active duty between 1987 and 2013, including deployments to Southwest Asia, appeals the denial of service connection for several conditions. The Board granted service connection for headaches, finding the veteran's consistent lay testimony credible and sufficient, despite an inadequate VA opinion that relied on the absence of service treatment records. Service connection for chronic sinusitis and allergic rhinitis was granted both directly, based on competent and credible lay and medical testimony and service records documenting exposure to particulate matter and burn pits, and presumptively under the PACT Act from August 10, 2022, due to confirmed service in Southwest Asia and the presumption of exposure to burn pits. Service connection for bilateral knee disabilities was also granted, finding the veteran's reports of in-service injury and subsequent worsening competent and credible, and deeming the VA examiner's negative nexus opinion inadequate for relying on an incorrect legal standard and lacking clear reasoning. The Board remanded claims for bilateral shoulder and foot disabilities, hypertension, and GERD due to inadequate VA opinions that failed to consider the combat presumption, relied on incorrect legal standards, or were based on inaccurate factual premises. The remand also requires the acquisition of complete National Guard service records.

Rationale

Lay testimony found competent and credible; VA opinion inadequate for relying on absence of treatment records; Benefit of the doubt resolved in veteran's favor

Service Branch

ARMY NATIONAL GUARD

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210205-139688

Full Decision Text

Citation Nr: A26038923
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 210205-139688
DATE: April 27, 2026

ORDER

Service connection for headaches is granted.

Prior to August 10, 2022, service connection on a direct basis for chronic sinusitis and allergic rhinitis is granted.

Service connection for chronic sinusitis and allergic rhinitis, effective August 10, 2022, pursuant to the Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act (PACT) of 2022, is granted.

Service connection for a right knee disability is granted.

Service connection for a left knee disability is granted.

REMANDED

Entitlement to service connection for a bilateral shoulder disability is remanded.

Entitlement to service connection for a bilateral foot disability, to include pes planus and plantar fasciitis, is remanded.

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded.

FINDINGS OF FACT

1. The Veteran's headaches had their onset during active duty service.

2. The Veteran's chronic sinusitis and allergic rhinitis had their onset in active duty service.

3. The Veteran had active military service in the Southwest Asia Theater of operations on or after August 2, 1990.

4. The Veteran's chronic sinusitis and allergic rhinitis are presumed to have resulted from in-service exposure to burn pits and other toxic substances during active duty service in the Southwest Asia theater of operations.

5. The Veteran's bilateral knee disability had its onset during active duty service.

CONCLUSIONS OF LAW

1. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

2. Prior to August 10, 2022, the criteria for direct service connection for chronic sinusitis and allergic rhinitis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.

3. From August 10, 2022, the criteria for presumptive service connection for chronic sinusitis and allergic rhinitis are met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.320(a); PACT Act, Pub. L. No. 117-168, 136 Stat. 1759 (2022).

4. The criteria for service connection for a bilateral knee disability are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1987 to May 1987, from January 2003 to March 2004, and from July 2012 to July 2013 in the Army National Guard. He also had periods of active duty for training (ACDUTRA) in August 1987, from May 1988 to June 1988, from July 1988 to August 1988, from August 1988 to September 1988, in May 1989, in June 1989, in January 1990, in July 1990, from July 1991 to August 1991, in December 1991, in April 1992, in August 1992, in October 1992, and in November 1992.

These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2020 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), which proceeded a May 2019 VA Form 21-0966 Intent to File and a February 2020 VA Form 21-526EZ Fully Developed Claim.

In February 2021, the Veteran timely appealed the October 2020 rating decision on a VA Form 10182 and selected the hearing docket. Based upon the Veteran's selection of the hearing docket, the Board may consider: (1) evidence in the record at the time of the October 27, 2020, rating decision; and (2) evidence submitted by the Veteran or
Board) on appeal from an October 2020 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), which proceeded a May 2019 VA Form 21-0966 Intent to File and a February 2020 VA Form 21-526EZ Fully Developed Claim.

In February 2021, the Veteran timely appealed the October 2020 rating decision on a VA Form 10182 and selected the hearing docket. Based upon the Veteran's selection of the hearing docket, the Board may consider: (1) evidence in the record at the time of the October 27, 2020, rating decision; and (2) evidence submitted by the Veteran or his representative within the 90-day period following the date of his hearing, from October 4, 2024 to January 2, 2025. See 38 C.F.R. § 20.301.

The Board observes that the medical evidence of record reveals diagnoses of various bilateral foot disabilities. Accordingly, that issue has been amended to include all diagnosed disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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); Jandreau, 492 F.3d at 1376-77.

Headaches

When a condition may be diagnosed by its unique and readily identifiable features, as is the case with headaches, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). As headaches are identifiable by a layperson by their unique features, the remaining inquiry is whether the Veteran's current headaches are related to service.

When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id.

The Veteran essentially contends that he began to experience chronic headaches during his deployments, and that he continues to have them.

The Veteran was afforded VA headaches examinations in October 2020. The Veteran reported that he began to experience chronic headaches during his deployment in Iraq in 2003 and 2004, and that he continues to have them. He stated that when he sought medical treatment, he was given ibuprofen. He described morning headaches upon waking
its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id.

The Veteran essentially contends that he began to experience chronic headaches during his deployments, and that he continues to have them.

The Veteran was afforded VA headaches examinations in October 2020. The Veteran reported that he began to experience chronic headaches during his deployment in Iraq in 2003 and 2004, and that he continues to have them. He stated that when he sought medical treatment, he was given ibuprofen. He described morning headaches upon waking that occur approximately four times per week on the right temporal side of the head around the right eye and they have remained unchanged since onset.

These contentions are supported by his reports at other times during the course of this claim and a VA examination report documenting diagnoses and medication treatment for headaches. There is no reason to doubt the credibility of the Veteran's testimony, particularly given his consistent reports of headaches since service that have remained unchanged over time. Therefore, the Board finds his account of the in-service onset of headaches and their continuation thereafter both competent and credible. As such, the Board finds that the Veteran's statements are sufficient to establish service connection in this instance.

In so finding, the Board acknowledges that the VA examiner who conducted the October 2020 VA headaches examination opined that the Veteran's current headaches were not related to service, stating that the Veteran's headaches were subjectively reported and relied on the absence of service treatment records reflecting a diagnosis of headaches. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The Board points out that headaches are identifiable by a layperson by their unique features and are self-diagnosable. Consequently, the opinion is not probative.

Resolving all doubt in the Veteran's favor, as is required by law, the Board finds that the Veteran developed a headache disability in service, and the claim of entitlement to service connection for headaches is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Chronic Sinusitis and Allergic Rhinitis

The Veteran contends that service connection is warranted for a sinusitis and rhinitis as a result of various symptoms during his deployments, including pain in the nasal passages, tenderness, purulent discharge or crusting, and cold-like symptoms as a result to exposure to fine, particulate matter during his deployments. He reported that he treated these symptoms with over the counter Zyrtec.

In October 2020, the Veteran was afforded a VA sinusitis and rhinitis examination. He reported that he began having a gradual onset of runny nose, sneezing, coughing, and congestion, during his deployments in Iraq in 2003, which he attributes to particulate matter in the air and exposure to burn pits. He stated that he continues to have the same symptoms despite taking Zyrtec daily. He reported current symptoms of intermittent sneezing, runny nose, coughing and congestion with weather changes, early in the morning, and with seasonal changes. He also endorsed thick white mucus when he blows his nose when he is symptomatic. The VA examiner diagnosed the Veteran with sinusitis and allergic rhinitis. In rendering a negative nexus opinion for chronic sinusitis and allergic rhinitis, the VA examiner relied on an absence of treatment in service. Accordingly, the Board affords this opinion inadequate, as it is based solely on the absence of documentation in the record and the medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). See Dalton v. Peake, 21 Vet. App. 23 (2007).

After review of the record, the Board finds that service connection for chronic sinusitis and allergic rhinitis is warranted.

Turning to the third criterion, a nexus to service, the Board finds the Veteran's reports of chronic sinusitis and allergic rhinitis symptoms of sinus pain, congestion, runny nose, sneezing, post-nasal drip, and purulent discharge, both competent and credible, especially given the Veteran's described symptoms prior to his diagnosis of sinusitis and allergic rhinitis are the same as the ones he described he had in service. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993); Caluza v. Brown, 7 Vet. App. 498 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991).

The above also reflects that the evidence before the Board as to the issue of whether the chronic sinusitis and allergic rhinitis is directly related to service consists of an inadequate negative VA opinion, service records documenting particulate matter exposure during deployments to Southwest Asia, and competent, credible lay and medical testimony indicating that since service the Veteran has had symptoms of runny nose, sneezing, coughing, and congestion, from service to the present. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). In these circumstances, a remand for another VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003). There is no probative opinion to the contrary.

Furthermore, if a Veteran was exposed to environmental hazards (burn pits and other toxins), then certain listed diseases, including chronic sinusitis and allergic rhinitis, pursuant to the PACT Act, are presumptively service connected. See PACT Act, Pub. L. No. 117-168 3373, 136 Stat. 1759 (2022).

Here, the Veteran is noted to have confirmed service in Southwest Asia theater of operations, and therefore exposure to burn pits and other toxins is presumed. The PACT Act, as noted above, recognizes chronic sinusitis and allergic rhinitis as conditions that can be presumptively service connected to burn pits and other toxins exposure. Therefore, in light of the evidence of his exposure to burn pits and other toxins exposure, diagnosis of allergic rhinitis and chronic sinusitis as early as an October 2020 VA examination, and the PACT Act's recognition of presumptive service connection, the Board finds that presumptive service connection is warranted for the Veteran's chronic sinusitis and allergic rhinitis from August 10, 2022. See PACT Act Section 406 (to be codified at 38 U.S.C. § 1120(b)(4)).

As such, resolving all doubt in the Veteran's favor, as is required by law, the Board finds the Veteran's chronic sinusitis and allergic rhinitis had their onset in service, and the claims of entitlement to service connection for sinusitis and allergic rhinitis are granted on a direct basis prior to August 10, 2022, and on a presumptive basis thereafter. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Bilateral Knee Disability

Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.
had their onset in service, and the claims of entitlement to service connection for sinusitis and allergic rhinitis are granted on a direct basis prior to August 10, 2022, and on a presumptive basis thereafter. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Bilateral Knee Disability

Service connection for a recognized chronic disease can be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Arthritis or degenerative joint disease is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a).

For any Veteran who engaged in combat with the enemy in active service of the United States during a period of war, campaign, or expedition, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by that service satisfactory lay or other evidence of service incurrence or aggravation of that injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of that incurrence or aggravation in such service. VA shall resolve every reasonable doubt in favor of the Veteran. Service connection of that injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996) (under 38 U.S.C. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place, and circumstances of such service).

The Veteran contends that service connection is warranted for a bilateral knee disability as a result of carrying heavy equipment during his deployments in 2003 and 2012.

Turning to the relevant evidence, the Veteran endorsed swollen, stiff, or painful joints at a February 2004 Post-Deployment Health Assessment. At a May 2006 Army National Guard retention medical examination, the Veteran answered yes to knee trouble but had a normal clinical evaluation of the lower extremities. A May 2011 medical visit reflects that the Veteran injured his left knee in a March 2011 motor vehicle accident as part of the Mississippi National Guard. However, both these incidents occurred after the Veteran's 2003 deployment to Iraq. As no clear and unmistakable evidence has been shown to rebut the presumption of soundness, the Board finds that the Veteran is presumed to have been sound on entrance to service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1).

At the October 2020 VA knee and lower leg conditions examination, the Veteran reported gradual onset of knee pain which he attributed to carrying heavy equipment while on deployment in 2003. He stated that the pain had become manageable until 2012 when he was deployed again and was required to do a lot of training and carrying heavy equipment. He endorsed intermittent aching pain in bilateral knees that he rated as 8 out of 10. He reported that the pain is worse in the morning but gradually decreased throughout the day depending on his activity. The VA examiner diagnosed the Veteran with degenerative arthritis of the bilateral knees. In rendering a negative nexus opinion, the VA examiner opined that the Veteran's bilateral knee disability clearly and unmistakably preexisted service but provided no evidence or reasoning to support such an opinion. Further, she also opined that the there was no evidence of permanent aggravation beyond normal progression of the Veteran's bilateral knee disability, which applies the incorrect legal standard. As such, the Board finds that this opinion is inadequate. The examiner's statements regarding the Veteran's in-service injury, diagnoses, and treatment are inaccurate and reflect a less than thorough review of the evidence.
worse in the morning but gradually decreased throughout the day depending on his activity. The VA examiner diagnosed the Veteran with degenerative arthritis of the bilateral knees. In rendering a negative nexus opinion, the VA examiner opined that the Veteran's bilateral knee disability clearly and unmistakably preexisted service but provided no evidence or reasoning to support such an opinion. Further, she also opined that the there was no evidence of permanent aggravation beyond normal progression of the Veteran's bilateral knee disability, which applies the incorrect legal standard. As such, the Board finds that this opinion is inadequate. The examiner's statements regarding the Veteran's in-service injury, diagnoses, and treatment are inaccurate and reflect a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

After review of the record, the Board finds that service connection for a bilateral knee disability is warranted.

In Maxson v. Gober, the Federal Circuit stated that the combat presumption is an "evidentiary mechanism [that] involves a three-step analysis." 230 F.3d 1330, 1332 (Fed. Cir. 2000). The first two steps require (1) determining "whether the veteran has presented 'satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease'" and (2) determining "whether the evidence is 'consistent with the circumstances, conditions, or hardships of such service.'" Id. at 1323-33 (quoting 38 U.S.C. § 1154(b)). The Federal Circuit established that, "[i]f these two steps are met, the Secretary shall accept the evidence as 'sufficient proof of service-connection,' regardless of the absence of official records." Id. at 1333 (quoting 38 U.S.C. § 1154(b)). The third step then requires an analysis of whether service connection "may be rebutted by clear and convincing evidence to the contrary." 38 U.S.C. § 1154(b); Maxson, 230 F.3d at 1333.

The combat presumption not only allows the occurrence of both the "cause" of a disability, but the "disability itself." See Reeves v. Shinseki, 682 F.3d 988, 998-9 (Fed. Cir. 2012) ("In short, although the record contained evidence of the cause of Reeves' disability... he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.") (citing Shedden, 381 F.3d at 1166-67).

The combat presumption reduces for veterans who have engaged in combat the burden of presenting evidence of incurrence of an injury in service, but does not eliminate the nexus requirement. Collette, 82 F.3d at 392. The Veteran must show that the disability he incurred in service was a chronic condition that persisted in the years following his active duty. Reeves, 682 F.3d. at 988.

Here, the Board finds the Veteran's reports that he injured both knees while in combat in Iraq, and worsened while in combat in Afghanistan, competent, credible, and consistent with the circumstances of his service in Iraq and Afghanistan, as noted in his service personnel records. 38 U.S.C. § 1154(b).

Turning to the third criterion, a nexus to service, the Board finds the Veteran's reports of bilateral knee symptoms both competent and credible, especially given the Veteran's complaints of bilateral knee pain in service and bilateral knee pain immediately following service to the present.

The above also reflects that the evidence before the Board as to the issue of whether the bilateral knee disability is related to service consists of an inadequate negative VA opinion, service treatment records documenting a complaints of knee pain following his deployment to Iraq in 2003 and 2004, and post-service treatment records reflecting a complaints of bilateral knee pain in 2006 and 2011, and competent, credible lay and medical testimony indicating that since service the Veteran has had symptoms of bilateral pain and limitation of motion from service to present. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). In these circumstances, a remand for another VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying
treatment records reflecting a complaints of bilateral knee pain in 2006 and 2011, and competent, credible lay and medical testimony indicating that since service the Veteran has had symptoms of bilateral pain and limitation of motion from service to present. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). In these circumstances, a remand for another VA opinion on this issue could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003).

Resolving all doubt in the Veteran's favor, as is required by law, the Board finds that the Veteran developed a bilateral knee disability in service, and the claim of entitlement to service connection for a bilateral knee disability is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

Remand is permissible only to correct pre-decisional duty to assist errors, or other errors which, if corrected, raise a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802. Based upon the deficiencies described below, the Board finds that a remand is warranted for correction of the pre-decisional errors.

The Board notes that the Veteran's claims file does not appear to have complete military personnel records from his time in the Army National Guard, including for periods of ACDUTRA and INACDUTRA. As such, the Board is unable to determine the nature of the Veteran's service for those periods.

Regarding the Veteran's claims for service connection, the Board will address each claim applying the legal framework outlined above, with similar claims being grouped together in the interest of brevity.

Bilateral Shoulders, Bilateral Feet

The Veteran contends that service connection is warranted for a bilateral shoulder disability and a bilateral foot disability as a result of physical training during his active duty deployments and ACDUTRA.

Service treatment records reflect that the Veteran was diagnosed with moderate pes planus at the August 1986 enlistment examination for the Army National Guard. Further, at that same August 1986 examination, and at a May 2006 examination, the Veteran reported that he broke his left shoulder in 1976 with no residual problems. A May 1995 medial note reflects that the Veteran also sustained a gunshot wound to his right shoulder in his civilian job as an on-duty police officer for the Tutwiler (Mississippi) police department.

The Veteran was afforded VA examinations for these conditions in October 2020. At the VA shoulder and arm conditions examination, the Veteran reported that he began to have a gradual onset of bilateral foot pain during his 2003 deployment, which he attributed to carrying heavy equipment while in Iraq. He endorsed continued shoulder pain since his 2003 deployment that is aggravated by heavy lifting, reaching, and activities such as driving. He stated that he treats his shoulder pain with over the counter ibuprofen. At the VA foot conditions examination, he reported that he began to have a gradual onset of bilateral foot pain during his 2003 deployment, which he attributed to wear and tear as a result of his boots. He endorsed continued foot pain since deployment when he bears weight for too long, which is worse in the morning and which he treats with over the counter ibuprofen. The VA examiner diagnosed the Veteran with bilateral pes planus and bilateral plantar fasciitis. In rendering a negative nexus opinion for the bilateral shoulders and bilateral feet, the VA examiner relied on an incorrect legal standard for the theory of aggravation of a preexisting condition. Significantly, the examiner did not consider the in-service combat presumption, which provides that if the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b);
VA examiner diagnosed the Veteran with bilateral pes planus and bilateral plantar fasciitis. In rendering a negative nexus opinion for the bilateral shoulders and bilateral feet, the VA examiner relied on an incorrect legal standard for the theory of aggravation of a preexisting condition. Significantly, the examiner did not consider the in-service combat presumption, which provides that if the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Board also points out that the examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service."

Hypertension, GERD

The Veteran contends that his hypertension is caused or aggravated by his service-connected other specified trauma- and stressor-related disorder. He also contends that he began to have symptoms of GERD, such as regurgitation and nausea, while deployed to Iraq in 2003. Alternatively, he contends that his GERD is also caused or aggravated by his service-connected other specified trauma- and stressor-related disorder.

The Veteran was afforded VA examinations for these conditions in October 2020. In rendering negative nexus direct opinion for GERD, the VA examiner relied on the absence of treatment or complaints of GERD during service. The Board also points out that the examiner's rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a "medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service." In rendering a negative nexus opinion for hypertension, the VA examiner relied on an incorrect legal standard for the theory of aggravation of a preexisting condition.

The matters are REMANDED for the following actions:

1. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the Army National Guard. Verify all active duty for training and inactive duty training dates for service in the Army National Guard. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). All such available records must be associated with the claims folder. Efforts to locate these records should end only if the evidence does not exist or further efforts to obtain it would be futile. If the records are deemed to be unavailable, the claims file must be properly documented as to the unavailability of these records and the Veteran and his representative notified of such. If these records cannot be located, the AOJ should prepare a memorandum of unavailability following the procedures outlined in 38 C.F.R. § 3.159(e).

2. Schedule the Veteran for VA examinations to determine the nature and etiology of the Veteran's disabilities. The claims file should be made available to the examiner and review of the file should be noted in the full requested report. Following review of the claims file and examination of the Veteran, the examiner should respond to the following:

(a.) For each disability, is it at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) related directly to service? Please explain why or why not. The examiner must record the full history of the identified disabilities, including the Veteran's competent account of his symptoms during his deployments to Southwest Asia.

(b.) For the Veteran's bilateral shoulder disability, did it clearly and unmistakably preexist service (is it medically undebatable that bilateral shoulder disability pre-existed the Veteran's entrance into service)? Please explain why or why not.

(c.) If a bilateral shoulder disability clearly and unmistakably preexisted service, is it clear and unmistakable (medically undebatable) that it was NOT aggravated due to an event, disease, or injury in service, to include the Veteran's duties during his 2003 to 2004 and 2012 deployments to Southwest Asia? Please explain why or why not. The examiner must record the full history of the identified disabilities, including the Veteran's competent account of his symptoms. As the Veteran is a combat Veteran, under 38 U.S.C. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place, and circumstances of such service.

(d.)
bilateral shoulder disability clearly and unmistakably preexisted service, is it clear and unmistakable (medically undebatable) that it was NOT aggravated due to an event, disease, or injury in service, to include the Veteran's duties during his 2003 to 2004 and 2012 deployments to Southwest Asia? Please explain why or why not. The examiner must record the full history of the identified disabilities, including the Veteran's competent account of his symptoms. As the Veteran is a combat Veteran, under 38 U.S.C. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place, and circumstances of such service.

(d.) For the Veteran's bilateral foot disability, did it clearly and unmistakably preexist service (is it medically undebatable that bilateral foot disability pre-existed the Veteran's entrance into service)? Please explain why or why not.

(e.) If a bilateral foot disability clearly and unmistakably preexisted service, is it clear and unmistakable (medically undebatable) that it was NOT aggravated due to an event, disease, or injury in service, to include the Veteran's duties during his 2003 to 2004 and 2012 deployments to Southwest Asia? Please explain why or why not. The examiner must record the full history of the identified disabilities, including the Veteran's competent account of his symptoms. As the Veteran is a combat Veteran, under 38 U.S.C. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place, and circumstances of such service.

(f.) Is the Veteran's GERD, at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) caused by a service-connected disability, to include service-connected other specified trauma- and stressor-related disorder?

(g.) Is the Veteran's GERD, at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) aggravated (worsened beyond the natural progression) by a service-connected disability, to include service-connected other specified trauma- and stressor-related disorder?

(h.) Is the Veteran's hypertension, at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) caused by a service-connected disability, to include service-connected other specified trauma- and stressor-related disorder?

(i.) Is the Veteran's hypertension, at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) aggravated (worsened beyond the natural progression) by a service-connected disability, to include service-connected other specified trauma- and stressor-related disorder?

(j.) The examiner should note that, pursuant to the Court of Appeals for Veterans Claims holding in Frost v. Shulkin, 29 Vet. App. 131 (2017), service connection for GERD or hypertension as caused or aggravated by other specified trauma- and stressor-related disorder is not barred merely because an GERD or hypertension was diagnosed prior to an acquired psychiatric disorder.

(k.) A rationale for all opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Bilstein, 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.

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