Citation Nr: 1753575 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-02 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for migraine headaches to include as secondary to service-connected disability of traumatic arthritis of the cervical spine. 2. Entitlement to service connection for right hand, 5th metacarpal condition. 3. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Monica Dermarkar, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to February 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 and April 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2017, a Board hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript is of record. FINDINGS OF FACT 1. The evidence of record is in relative equipoise as to whether the Veteran's migraine headache disorder had its onset in service. 2. The evidence of record is in relative equipoise as to whether the Veteran's right hand, 5th metacarpal condition had its onset in service. 3. The evidence of record is in relative equipoise as to whether the Veteran's back disability had its onset in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a migraine headache disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a right hand, 5th metacarpal condition have been met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In the present case, the Board is granting these claims; therefore, no discussion of VA's duty to notify and to assist is necessary at this time. II. Rules and Regulations In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Service Connection for Migraine Headaches With regard to a current disability, the Veteran was diagnosed with vascular/tension headaches. See July 2009 VA Examination. With regard to an in-service injury, the Board concedes that, in general, the very nature of the activity of boxing involves injuries to the head. In support of his contention, the Veteran submitted a July 1994 statement from his retired boxing coach, staff Sergeant J.A.S., who verified that the Veteran received a neck injury for which he was treated and placed in a neck brace at the Army championship matches at Fort Bragg in 1987. The Veteran also submitted a statement, dated June 1994, from M.W.B. who was on active duty as a Captain serving in the capacity of assistant chief/staff physical therapist at Fort Carson. He verified that the Veteran was seen and received treatment at Evans Army Community Hospital Physical Therapy Clinic for a problem related to his cervical spine. He reported that the exact details of the Veteran's problems and treatment are not clear due to the unavailability of the Veteran's medical records and the passage of time since these events took place. In addition, the record contains a memorandum from Major W.J.H., dated June 1994. Major W.J.H. verified that the Veteran was treated at Evans Army Community Hospital in physical therapy from December 1987 until June 1989 for his neck and back problems. Major W.J.H. stated that he observed the Veteran in therapy working with then Lieutenant M.W.B. The Board finds that the Veteran's testimony is credible and is supported by the statements of his boxing coach and physical and occupational therapists. Thus, the Veteran has satisfied the second element of direct service connection. As previously mentioned, entitlement to service connection also requires a third element which involves medical evidence of a nexus between the current disorder and the in-service disease or injury. After resolving any doubt in the Veteran's favor, the Board finds that the evidence provides a sufficient nexus between the Veteran's in-service boxing injuries and his current disability. In a July 2017 Headache and Pain private treatment letter, Dr. R.J.F. reviewed the Veteran's VA records and opined that the Veteran's migraine headache syndrome occurred in a posttraumatic situation and is more likely than not caused by repeated blows and injuries to the head while boxing in the military between approximately 1983 to 1990. The examiner noted that the Veteran's migraine headache syndrome is considered a permanent condition. Although, there are conflicting medical opinions of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's current migraine headache disorder first manifested during his period of active duty service. As the Veteran was a boxer and the very nature of the sport of boxing involves injuries to the head, the Board finds that service connection for migraine headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on any other basis as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C.A. § 7104 (2012). IV. Service Connection for a Right Hand, 5th Metacarpal Condition With regard to a current disability, VA treatment records showed that the Veteran had an x-ray in August 2011 which showed a minimally displaced (flexed) fifth metacarpal base fracture with minimal progression of healing. Additionally, in a January 2013 VA examination, the Veteran was diagnosed with fracture of the fifth finger. With regard to an in-service injury, the Board concedes that the very nature of the sport of boxing involves forceful, repetitive punching. Therefore, the second element of service connection is satisfied. Finally, after resolving any doubt in the Veteran's favor, the Board finds that the evidence provides a sufficient nexus between the Veteran's in-service injury and his current disability. An August 2011 VA treatment note from Dr. G.G. noted that she reviewed the CT scan and it showed some mild displacement of fifth metacarpal fracture. The physician also expressed that the Veteran's carpometacarpal joint incongruity is consistent with a previous boxing history. VA treatment note dated March 2012, revealed that the Veteran's fifth metacarpal base fracture occurred with less trauma than typical. The physician noted that the Veteran sustained a past injury in 1988 when boxing. The physician expressed that the Veteran has had pain prior to the recent new fracture of the fifth metacarpal base. The examiner noted that the chronic pain was located deep in the hand. The examiner also stated that a CT scan was obtained to better evaluate the Veteran's hand. After receiving the results of the CT scan, a chronic injury was diagnosed. Moreover, the Veteran was granted service connection for his right hand, third metacarpal condition. In this regard, the Board notes that his fifth metacarpal condition stems from the same injury upon which service connection was granted for his third metacarpal condition. Based on the above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's right hand, 5th metacarpal condition is related to his military service; thus, the criteria for service connection for a right hand, 5th metacarpal condition have been met. V. Service Connection for a Back Disability With regard to a current back disability, the Veteran was diagnosed with lumbar spondylosis. See July 2009 VA Examination. With regard to an in-service injury, the record contains a memorandum from Major W.J.H., dated June 1994. Major W.J.H. verified that the Veteran was treated at Evans Army Community Hospital in physical therapy from December 1987 until June 1989 for his neck and back problems. Major W.J.H. stated that he observed the Veteran in therapy working with then Lieutenant M.W.B. Therefore, the second element of service connection is met. With regard to the third element of service connection, a nexus between the Veteran's in-service injury and his current disability, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran's back condition had its onset in service. The record contains a treatment note dated October 1992 in which the Veteran was seen for pain in the mid thoracic to cervical spine region. The Veteran was diagnosed with recurrent chronic back pain. The record contains a medical progress note dated December 1996 in which the Veteran reported upper and lower back pain that is getting worse. The Veteran denied any recent injury or trauma to the back. The examiner noted that the thoracic spine had no local tenderness. The examiner diagnosed the Veteran with chronic thoracic and lumbosacral spine pain. The record also contains a letter from Dr. K.S. dated June 2017. Dr. K.S. noted that he is the primary care and treating physician for the Veteran for the past two years. The physician stated that boxers are known to suffer blows to their head and falling hard when "knocked out" causing concussions and head injuries. Dr. K.S. expressed that based on his review of the Veteran's medical record both service and VA and history of injuries to boxers, it is his medical opinion that the Veteran's thoracolumbar spine is at least as likely as not caused by repeated blows and injuries to his entire body. The Veteran was afforded a VA examination in July 2009. The examiner opined that the Veteran's lumbar spondylosis is less likely as not caused by or a result of active duty boxing injury and/or cervical spine arthritis. The examiner stated that the Veteran's cervical range of motion, strength, and anatomic structure is too functional to initiate, influence, or sustain a degenerative process in the lumbar spine. The examiner also noted that the service record is devoid of a high energy injury or multiple low energy injuries over a prolonged period (at least 10 years) to the Veteran's lumbar spine. The examiner opined that the Veteran's mild lumbar spondylosis is more likely age appropriate and a primary process. The examiner also opined that the Veteran's back condition is not caused by or a result of cervical spondylosis. The examiner stated that she is unaware of any plausible mechanism based on scientific data that substantiates a causative relationship between mild cervical spondylosis with functional neck range of motion, sensation, and strength and migraine headaches. Although, there are conflicting medical opinions of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's current lumbar spondylosis is related to his period of active duty service. Thus, the Board finds that service connection for a back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). ORDER Entitlement to service connection for migraine headaches to include as secondary to service connected disability of traumatic arthritis of the cervical spine is granted. Entitlement to service connection for right hand, 5th metacarpal condition is granted. Entitlement to service connection for a back disability is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs