Citation Nr: 1310882 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-16 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for scars on the face and nose. 4. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to October 1998 and from May 2000 to July 2004. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa. In February 2011, the Board remanded the case to the RO for additional development. The decision below addresses the claims of service connection for a back disorder and for migraine headaches. The claims of service connection for a left shoulder disorder and for scars on the face and nose are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran's back disorder is not related to his active military service. 2. The Veteran's post-concussion headaches cannot be reasonably disassociated with his active military service. CONCLUSIONS OF LAW 1. A back disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. Post-concussion headaches were incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claims of service connection for a back disorder and for migraine headaches, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's September 2005 and March 2006 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was notified of the information and evidence necessary to substantiate a service connection claim and of the general criteria for assigning disability ratings and effective dates. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of these claims, including the opportunity to present pertinent evidence. The duty to assist the Veteran has been satisfied for these two claims. The RO has obtained the Veteran's service treatment and personnel records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's February 2011 remand, the RO sent the Veteran a letter later than month asking him to identify medical providers who have treated him for his claimed disabilities. He did not respond to the letter. The Veteran has also been afforded VA examinations that are adequate to decide the back disorder and migraine headaches claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, pursuant to the Board's February 2011 remand, the May 2011 examiner reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for fully-informed medical opinions regarding these two claimed disabilities. Id. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. at 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Analysis Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Moreover, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A. Back Disorder The Veteran contends that service connection is warranted for a back disorder as a result of his active military service. Specifically, he states that he injured his back on two occasions between approximately April 2003 and June 2003. The Veteran recalls that he injured his back when he was involved in a motor vehicle accident while traveling in a truck in Iraq and also when he fell out of a truck. He maintains that any currently diagnosed back disorder is related to the in-service injuries. The Veteran's service treatment records document treatment for low back pain following the time period of the claimed in-service injuries. In September 2003, he was seen for a complaint of low back pain that had lasted for the previous five months. The assessment was mechanical low back pain. In October 2003, he was treated for low back pain on multiple occasions and the assessment was low back pain with weak core muscles. Entries dated in November 2003 and December 2003 also show complaints of low back pain. Although a specific diagnosis was not made other than "pain," the evidence establishes that the Veteran was treated for symptoms involving the low back and tends to show that he did experience an injury to the low back as stated. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to which the witness has actually observed and is within the realm of his personal knowledge). Post-service VA treatment records show a complaint of chronic low back pain as early as August 2004. Treatment for low back pain within one month of separation from service tends to support the Veteran's assertions that he experienced low back pain since service. However, a February 2005 enlistment examination report for the Iowa Army National Guard includes a medical history where the Veteran denied having a history of recurrent back pain, arthritis, or swollen or painful joints. Additionally, the spine portion of the examination was normal. This evidence calls into question the credibility of the Veteran's assertions that he has experienced low back pain since his period of active service. This evidence also reflects a normal back and the Veteran was deemed to be physically qualified for National Guard service. VA treatment records do not contain a diagnosis of a back disorder. Additionally, the October 2006 VA examiner provided a diagnosis of musculoskeletal pain of thoracic spine after x-rays of the thoracic spine and lumbosacral spine were normal. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). With that being said, however, the May 2011 VA examiner provided a diagnosis of mild lumbar back strain. Thus, the current disability element of the claim is established. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The May 2011 VA examiner also answered the question of whether the Veteran's current back disorder is related to his active military service. The examiner gave the opinion that the spine condition is less likely as not caused by or a result of any other specific illness, injury or event during the Veteran's military service. The examiner explained that, although there are notes indicating onset of this lower back pain in approximately May 2003, the pain appears to be correctly diagnosed as mild mechanical low back pain. According to the examiner, this condition is transient, typically lasting for 6-8 weeks. The examiner noted that there is no documentation of the etiology of this condition within those notes and there are no records of a specific incidence or injury to suggest an alternative diagnosis or etiology for this condition. The examiner concluded that it is very unlikely that the Veteran's current lower back symptoms are attributable to his military service. A review of the claims file, physical examination, and a citation to a medical literature are also listed as supporting rationale. Here, the Board finds that the weight of the competent and probative evidence of record does not support a nexus between the Veteran's current back disorder of lumbar back strain and his active duty service. Importantly, after consideration of the Veteran's entire claims file, the Veteran's statements, medical literature and after performing a physical examination of the Veteran, the May 2011 VA examiner concluded that the Veteran's back disorder is not related to active service. The VA examiner provided explanation and rationale for the opinion, explaining that the Veteran's in-service symptoms were transient from which the Veteran recovered given that the symptoms were attributed to mechanical low back pain. This explanation is also supported by the post-service evidence that shows a normal back in February 2005 as the Veteran was physically qualified for National Guard service. In a February 2013 brief, the Veteran's representative contends that the May 2011 VA examination report is inadequate for purposes of deciding this claim. The representative states that the Veteran received treatment for low back pain in service, complained of similar symptoms within a year of exit from service, and the VA examiner did not offer an opinion as to whether the condition was incurred coincident to service. The Board has considered this contention, however, the Board finds that the May 2011 VA examination report is adequate for deciding this claim. The examiner did consider the Veteran's service and post-service circumstances, and provided an express opinion on the matter. As such, the examination report sufficiently informs the Board of the medical expert's judgment on the medical question and the essential rationale for the opinion. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Therefore, a remand for another examination or opinion is not necessary for this claim. Lastly, the Board has considered the Veteran's opinion on the matter whereby he relates his current back disorder to his active military service. A valid medical opinion is not required to establish nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the Veteran's case, the Board accords little evidentiary weight to the Veteran's lay opinion on the matter and finds the May 2011 VA examiner's opinion probative as to the question of nexus. The examiner is a medical expert and provided a competent medical opinion with the essential rationale for the opinion. The evidence regarding nexus weighs against the claim. Accordingly, as the competent and probative evidence weighs against a finding of the required nexus between military service and a current back disorder, service connection for a back disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). B. Migraine Headaches The Veteran also contends that service connection is warranted for migraine headaches as he believes they are attributable to a head injury during military service. Specifically, he recalls that he was injured in approximately April 2004 or May 2004 when he was hit in the head with a piece of kitchen equipment while he was setting up a temporary field kitchen in Iraq. The Veteran states that he lost consciousness and experienced headaches ever since that time. He maintains that any currently diagnosed headaches are related to the in-service head injury. The Veteran's service treatment records contain a May 2000 enlistment examination report. He reported having a history of a head injury from when a statute fell on his head in 1994. Although the Veteran reported this history, the physical examination was normal regarding the head and the report does not include a notation of a diagnosis of headaches. Because headaches were not noted at entrance, the Veteran is presumed to have been in sound condition with respect to headaches. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b)(1) ("History of preservice existence of conditions recorded at the time of examinations does not constitute a notation of such conditions"); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (childhood history of asthma did not "note" the condition at induction). The remaining available service treatment records are negative for any evidence of findings or complaints of headaches or a head injury. There are no entries from the time period of the claimed injury and there is no separation examination report. Although there is no official documentation of the Veteran's head injury during military service, the Veteran's statements are competent evidence as to what he experienced through his senses in service, to include being hit in the head with a piece of kitchen equipment and losing consciousness. See Layno, 6 Vet. App. at 469-70. In the course of his claim, the Veteran has consistently stated that this injury occurred. However, the February 2005 enlistment examination report for the Iowa Army National Guard includes a medical history where the Veteran denied having a history of headaches or a head injury. While this examination report calls into question the credibility of the Veteran's statements as to whether he experienced a head injury during his active duty service, the Board resolves reasonable doubt in his favor and finds his statements that he experienced an in-service head injury in April 2004 or May 2004 to be credible. His service records show that his military occupational specialty was "cook." An injury occurring during the process of setting up a temporary field kitchen is consistent with the Veteran's circumstances of service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Accordingly, the Board finds that the Veteran's statements are competent and credible evidence as to a head injury while in service. Post-service VA treatment records show a complaint of headaches as early as August 2004. The Veteran reported that he experienced the headaches since May 2004. Treatment for headaches within one month of separation from service tends to support the Veteran's assertions that he experienced headaches since an April 2004 or May 2004 head injury. Since that time, the Veteran has sought intermittent treatment for headaches through VA and he has been prescribed medication. A May 2005 record notes a one year history of headaches and the impression was post-concussive headaches after the Veteran reported his history of an April 2004 injury to his head and loss of consciousness. In October 2006, the Veteran underwent VA examination in connection with the claim. The examiner noted a history of loss of consciousness in April 2004 when the Veteran was injured in a mobile tent kitchen and symptoms of headaches ever since the injury. A diagnosis of post-concussive headaches was provided. The examination report is of little probative value because the claims file was not available for review and the examiner did not give an etiology opinion. See Barr, 21 Vet. App. at 312 (2007) (holding that if VA provides a veteran with an examination in a service connection claim, the examination must be adequate). However, given the diagnosis of post-concussive headaches, the report does support the Veteran's general contention that he has headaches arising from a head injury. In 2008, the Veteran was seen for multiple VA neurologic consultations in the course of treatment. Various medical providers indicated that the Veteran has post-traumatic headaches or residual symptoms from a traumatic brain injury that include intermittent headaches. The May 2011 VA examination was conducted to elicit an etiological opinion on the matter. The examiner reviewed the claims file, recorded a history provided by the Veteran, and conducted a physical examination. A diagnosis of tension headaches with migraine features was provided. The examiner gave the opinion that the Veteran's cephalgia is less likely as not caused by or a result of any specific illness, injury or event that occurred during the Veteran's military service. The examiner explained that although the Veteran presents himself in a straightforward manner, and provides a history that relatively closely matches prior narratives of events of the incident when he was apparently injured, there are also numerous self-reports within the military service records that establish significant doubt about the events and the timeline of the events. Therefore, the examiner could not attribute the Veteran's headaches to military service, nor could the examiner definitely state that they are attributable to a concussive event. The examiner noted that the diagnosis would be labeled as post-concussive headaches if it can be established that the Veteran was treated for a concussion at the time of the injury to the bridge of the nose. The VA examiner's opinion is essentially based on the examiner's perception that the Veteran's reported history lacks credibility. Although there is some inconsistent evidence, the Board has determined that the Veteran's statements concerning the in-service head injury are credible as detailed previously. When an established in-service head injury is taken into account, the May 2011 VA examiner's opinion supports the Veteran's claim as the examiner would characterize the diagnosis as post-concussive headaches under these circumstances. Such a diagnosis is also in agreement with the Veteran's VA treatment providers who have provided a similar diagnosis. At the very least, reasonable doubt exists as to the question of the relationship between the Veteran's headaches and his military service. In considering the evidence of record and when resolving reasonable doubt in his favor, the Board finds that the evidence as to whether the Veteran's current headaches are related to his active military service is in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49. The Veteran's post-concussion headaches cannot be reasonably disassociated with his active military service. Therefore, service connection is warranted for the claimed disability, which is best characterized as post-concussion headaches. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. ORDER Service connection for a back disorder is denied. Service connection for post-concussion headaches is granted. REMAND The Veteran asserts that he has a left shoulder disorder as a result of his active military service. Specifically, he states that he injured his left shoulder in April 2003 when he was involved in a motor vehicle accident. The Veteran maintains that any currently diagnosed left shoulder disorder is related to service. The May 2011 VA examiner also addressed this claim and provided an opinion that the left shoulder disorder is less likely as not caused by or a result of any other specific illness, injury or event that occurred during the Veteran's military service. The examiner noted that the Veteran underwent a left shoulder rotator cuff tear repair in May 2006. The examiner explained that, although it is possible that the Veteran could have sustained a contusion to his shoulder, the type of injury that would be anticipated from direct lateral blows to the shoulder or tip of the shoulder would be AC (acromioclavicular) joint separation and not a rotator cuff/supraspinatus tear. The examiner also noted that there are no treatment records related to a left shoulder condition found in the military service records. Therefore, according to the examiner, it is very unlikely that this Veteran's supraspinatus tear and/or current shoulder condition is in any way related to the Veteran's military service. Although the May 2011 VA examiner addressed the Veteran's left shoulder rotator cuff tear, an April 2006 VA treatment record contains the results of magnetic resonance imaging of the left shoulder, which shows mild left AC joint DJD (degenerative joint disease). The VA examiner indicated that the type of injury to the shoulder that the Veteran reported experiencing during service would be expected to affect the AC joint rather than result in a rotator cuff tear. The May 2011 report is therefore not wholly adequate because the examiner failed to provide an opinion as to all the Veteran's current left shoulder disorders. Thus, the Board finds it necessary to remand the claim for another medical opinion that addresses the etiology of the Veteran's degenerative joint disease of the AC joint of the left shoulder. See Barr, 21 Vet. App. at 312. The Veteran also asserts that he has a scar on the face, and particularly the nose, as a result of his active military service. He believes the scar is the residual of a laceration injury related to the April 2004 or May 2004 injury that occurred when the piece of equipment from the temporary field kitchen hit him in the head. After examining the Veteran, the October 2006 VA examiner provided a diagnosis of healed laceration scar to bridge of the nose. The scar measured 1.4 centimeters (cm) by .2 cm. The May 2011 VA examiner provided a diagnosis of scar due to trauma. The scar across the nose measured 3.8 cm by .1 cm. This examiner gave an opinion that a face scar is less likely as not caused or a result of a specific illness, injury or event that occurred during the Veteran's military service. The examiner explained that the Veteran's entrance examination notes a 1 cm scar across the bridge of the nose, but the scar currently present is much longer. The examiner stated that while the Veteran provides a history that could explain the presence of a larger scar in that location, the probability that he would be injured in exactly the same location (as a second smaller scar is definitely not present) is extremely small. The examiner also noted that there are no military service records to indicate treatment or follow-up for the reported injury, and the left lateral portion of the scar is easily missed and may have been missed on the intake physical examination as it appears to have been missed on other examinations. Given all of these difficulties, the examiner could not definitely say that this scar was or was not caused by military service. The Veteran's May 2000 entrance examination report does contain a notation of a 1 cm scar on the bridge of the nose. When a condition is noted at entrance, a veteran is not presumed to have been in sound condition for that condition. See 38 C.F.R. § 1111; 38 C.F.R. § 3.304(b). While the May 2011 VA examiner addressed whether the Veteran's current scar was caused by or a result of service, the question of whether a preexisting nose scar was aggravated by service was not answered. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Therefore, the Board finds it necessary to also remand this claim for another medical opinion that addresses the aggravation aspect of this claim. See Barr, 21 Vet. App. at 312 (2007). Another physical examination is also important given the varying measurements of a scar located on the bridge of the Veteran's nose. As noted previously, the February 2011 letter from the RO asked the Veteran to identify medical providers who have treated him for his claimed disabilities, to which he did not respond. He may be receiving regular treatment at his local VA Medical Center. Updated treatment records should be requested in light of the remand. Accordingly, this case is remanded for the following actions: 1. The RO must obtain the Veteran's more recent treatment records (since March 2009). 2. Thereafter, the Veteran must be afforded the appropriate VA examination to determine whether any left shoulder disorder found is related to his military service. All pertinent symptomatology and findings must be reported in detail, including whether the Veteran has arthritis of the left shoulder. Any indicated diagnostic tests and studies, including x-rays, must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed left shoulder disorder (rotator cuff tear, arthritis, etc.) is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must also be afforded the appropriate VA examination to address the etiology of the scar on the bridge of his nose. All pertinent symptomatology and findings must be reported in detail, including the measurement of the scar. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether a preexisting scar on the bridge of the Veteran's nose underwent an increase in severity during service; and if so, whether the increase can be clearly attributed to the natural progress of this disability. The examiner must also state whether any diagnosed scar on the bridge of the nose is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 6. Finally, after undertaking any other development deemed appropriate, the RO must re-adjudicate the issues remaining on appeal. If a benefit sought is not granted, the RO must furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs