Citation Nr: 1756501 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-05 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a back disability (strain). 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for sinus headaches. 6. Entitlement to service connection for stomach pain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to May 1996, including in the Southwest Asia theater of operations during the Persian Gulf War. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at a hearing at the RO in July 2011 before this judge (Travel Board hearing). A transcript of the proceeding is apart of the record on appeal. By decision dated in September 2013, the Board found that new and material evidence had been received and, therefore, reopened the claims for service connection for back and bilateral (left and right) knee disabilities and for sinus headaches and stomach pain. The reopened claims, as well as the claim for service connection for a neck disability, however, were then remanded for further development. The Board's September 2013 decision also found that new and material evidence conversely had not been received to reopen the Veteran's claim for service connection for a right ear condition, yet reopened and remanded the claim for service connection for headaches. And by rating decision dated in December 2013, so since, the Agency of Original Jurisdiction (AOJ) granted service connection for migraine headaches. The claims of entitlement to service connection for sinus headaches (as opposed to migraines) and for stomach pain are being REMANDED to the AOJ for still further development and consideration. Whereas the Board, instead, is going ahead and deciding the remaining claims for a neck disorder, back disorder, and bilateral knee disability. FINDINGS OF FACT 1. The Veteran's neck disorder, including arthritis, was initially manifested years after service and is not shown to be related or attributable to his service. 2. The Veteran's back disorder, including arthritis, was initially manifested years after service and is not shown to be related or attributable to his service. 3. The Veteran's right knee disability was initially manifested years after service and is not shown to be related or attributable to his service. 4. The Veteran's left knee disability was initially manifested years after service and is not shown to be related or attributable to his service. CONCLUSIONS OF LAW 1. Service connection for a neck disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Service connection for a back disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. Service connection for a right knee disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating claims for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by way of a February 2007 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As for the duty to assist, the Veteran's service treatment records (STRs) and VA and private medical records have been obtained, to the extent relevant. As well, he was afforded VA compensation examinations for needed medical nexus opinions concerning the etiology of his neck, back and bilateral knee disabilities, including especially in terms of their purported relationship or correlation with his military service. A duty-to-assist omission is not alleged, therefore, this obligation has been satisfied. Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's STRs show that on February 1994 examination, the musculoskeletal system, spine and lower extremities were normal. In July 1994, the Veteran complained of low back pain. Straight leg raising was negative. He complained of low back pain not related to trauma in January 1995. Examination showed no edema, effusion, tenderness to palpation or deformity. Reflexes were intact. Straight leg raising was negative. Heat and medication were prescribed. X-rays of the lumbosacral spine in January 1996 revealed no evidence of an acute bony abnormality. It was noted that the X-rays were requested due to trauma. His condition was not relieved by rest or medication. The Veteran's discharge certificate shows that he served in the Southwest Asia theater. He was awarded the Parachutist's Badge. Private medical records show that the Veteran reported in December 2006 that he continued to have knee and back pain. He stated that he was a paratrooper in service, that suboptimal parachutes were used and that he was not able to control the landing speed. As a result, he sustained excessively hard landings that were hard on his joints and back. The assessments were knee pain, osteophyte formation on the cervical spine and thoracic spine and ununited spinous process L5-S1. The examiner informed the Veteran that there was a good probability that his knee and back pain were caused by parachuting with sub-optimal equipment. In January 2007, he complained of low back, cervical spine and bilateral knee pain. He stated that his low back pain started in the early 1990's and that he suspected that it might be due to the impact from jumping out of airplanes. It was noted that X-rays of the knees were within normal limits. A nurse practitioner wrote in February 2007 that the Veteran had been a patient since November 2002 and that he did parachuting in service and that since then, he had back, neck and knee pain. She opined that the Veteran's neck, back and knee pain were a direct result of using poor equipment that caused excessive strain on his back and joints. On March 2008 Persian Gulf examination, the Veteran stated that he was exposed to smoke from burning oil wells and petrochemical fumes. He related that his knees bothered him and he attributed it to his having made 37 parachute jumps in service. The assessments were history of bilateral knee injury and spinal stenosis. A VA examination of the neck was conducted in October 2013. The Veteran reported that he first had neck problems in 1990 and he attributed them to his having multiple ground impacts when he was in airborne training. He claimed he made 40 to 50 jumps during his training, but denied making any on deployment. He stated that the condition never completely resolved and that he had had neck problems ever since the airborne training. It was noted that arthritis was documented. The diagnosis was cervical spine degenerative disease. The examiner was unable to relate the condition to a specific substance exposure event the Veteran experienced during his service in Southwest Asia without resorting to mere speculation because there was no information of exposure to a specific substance known to cause the neck condition. As to whether the Veteran's cervical spine condition was related to service, the examiner, who reviewed the record, opined that he was unable to state that it was so related without resorting to mere speculation because he could find no mention of a cervical spine condition during service or until 2006 (retrospectively to 2002), such that it was not possible to establish chronicity to service. On October 2013 VA examination of the lumbar spine, the Veteran stated that he first had back problems in 1990. He said the onset of such problems was due to his parachute jumping and his training and running with rucksacks. He maintained that his back had bothered him ever since the back pain began in service. The examination report indicates that arthritis was documented. The diagnosis was lumbar spine degenerative disease. The examiner was unable to relate the condition to a specific substance exposure event the Veteran experienced during his service in Southwest Asia without resorting to mere speculation because there was no information of exposure to a specific substance known to cause the back condition. As to whether the Veteran's lumbar spine condition was related to service, the examiner, who reviewed the record, opined that he was unable to state that it was so related without resorting to mere speculation because, although lumbar spine complaints are noted in the service treatment records, he found no further mention of a lumbar spine condition until 2006 (or retrospectively to 2002), so that it was not possible to establish chronicity for the condition dated to service. The Veteran was examined by the VA for his knees in October 2013. He stated that he first had bilateral knee problems in 1990, and attributed them to his parachute jumping and military training. He said the condition never resolved. The diagnosis was bilateral knee strain. The examiner was unable to relate the condition to a specific substance exposure event the Veteran experienced during his service in Southwest Asia without resorting to mere speculation because there was no information of exposure to a specific substance known to cause the bilateral knee condition. As to whether the Veteran's bilateral knee condition was related to service, the examiner, who reviewed the record, opined that he was unable to state that it was so related without resorting to mere speculation because he could find no mention of a knee condition during service or until 2006 (retrospectively to 2002), such that it was not possible to establish chronicity to service. In December 2013, the VA examiner who conducted the October 2013 VA examinations provided additional opinions concerning the etiology of his neck, back and bilateral knee disabilities. He opined that it was not at least as likely as not that the Veteran's neck or bilateral knee conditions are related to service because he was unable to find any mention of a cervical spine or right or left knee condition during active service in currently available records and because he found no mention of such conditions until 2006 or retrospectively 2002. Thus, it was not possible to establish chronicity going back to the time of military service. With respect to the lumbar spine, although a low back condition was mentioned in the service treatment records, the examiner found no further mention of such condition until 2006 or retrospectively 2002. Thus, it was not possible to establish chronicity going back to the time of military service. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a relevant disease or an injury in service; and (3) a correlation ("nexus") between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a specified period of time post service (one year for arthritis). 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection also may be granted for these chronic diseases by showing continuity of symptoms since service under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran argues that his neck, back and knee disabilities are due to his parachute jumping in service. The STRs disclose that the Veteran complained of low back pain in July 1994 and again in January 1995. No abnormalities were identified on clinical evaluation. The STRs are unremarkable for complaints or findings concerning the neck or either knee. A nurse practitioner stated in December 2006 and again in January 2007 that the Veteran's neck, back and bilateral knee problems were related to his parachute jumping in service. It is significant to point out, however, that a VA physician reached a different conclusion. He noted that there was no indication in the record that the Veteran had been seen for neck or knee complaints in service or for at least six years thereafter. He acknowledged that the Veteran did have some back complaints in service, but also observed that there was no subsequent indication of any low back problems until at least 2002 (so not until about 6 years after the Veteran's service ended). Based on this commenter's review of the record, he concluded it was less likely than not that any current neck, low back or bilateral knee disability was related to the Veteran's service. The Veteran claims that his problems began in 1990 during his airborne training and have been present ever since. But the February 1994 examination in service found no abnormalities of the neck, low back or knees. This is inconsistent with the Veteran's assertion that he has had neck, low back and knee problems since 1990, as that intervening examination was grossly unremarkable. The evaluation of the probative value of a medical opinion and evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. The credibility and weight to be attached to such opinions are within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another's depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Here, the Board finds that the opinions of the VA compensation examiner merit greater probative value than those of the private medical provider or the Veteran's lay opinion. Contrary to the VA examiner, the nurse practitioner's opinion did not include the all-important supporting rationale citing to factual data or other explanatory evidence or underlying reasoning, nor was it predicated on a review of the record (although admittedly that, alone, is not determinative of an opinion's probative value (the competency and credibility, i.e., weight of it)). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In Neives-Rodriguez, the Court held that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). According to the holding in Stefl, to be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder, instead, must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). The evidence on the whole does not establish the Veteran was diagnosed with a neck, low back or bilateral knee disability during his service or for at least six years thereafter, and arthritis of the neck and low back also first manifested several years following the conclusion of his service, well beyond termination of the one-year presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Thus, there is no basis for granting service connection either on a direct or presumptive basis. The evidence also does not suggest the Veteran has had continuous symptoms referable to his low back since his discharge from military service. See 38 C.F.R. § 3.303(b). Thus, service connection for a low back disorder is not warranted based on continuity of symptomatology since service. There also is no competent and credible evidence that any current neck, low back or bilateral knee disability is otherwise related or attributable to his service to, in turn, invoke consideration of 38 C.F.R. § 3.303(d) (initial diagnosis post service). In summary, for these reasons and bases, the preponderance of the evidence is against the claims for service connection for neck, back and bilateral knee disabilities. ORDER Service connection for neck, back, right and left knee disabilities is denied. REMAND The Veteran also asserts that service connection is warranted for sinus headaches and stomach pain. The October 2013 VA stomach examination resulted in a diagnosis of intermittent nausea provoked by odors. It was also noted that the Veteran had been involved in a motor vehicle accident prior to service that resulted in intestinal surgery. The examiner found that the intestinal cramping condition had preexisted service and clearly and unmistakably was not aggravated in service. He further indicated that the Veteran also had intermittent nausea which was apparently brought on by certain odor. The examiner deferred the matter of whether this was attributable to service to a behavioral health specialist. With respect to the claim for service connection for sinus headaches, the Board notes that the VA examiner in October 2013 deferred the question of whether such a condition was secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD) to a behavioral health specialist. The Board acknowledges that the examiner provided a supplemental opinion in December 2013 in which he opined that it was less likely than not that the Veteran's sinus headaches are related to service. He again stated that whether the condition is secondary to PTSD she be referred to a behavioral health specialist. This has not been accomplished. The Board's September 2013 decision specifically directed that an opinion be provided regarding secondary service connection. Thus, the VA medical opinions of record are noncompliant with the Board's remand directives; and corrective action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (Where there has not been compliance with remand orders of the Board, the Board, as a matter of law, errs when it fails to ensure compliance). Accordingly, these remaining claims are REMANDED for the following additional development and consideration: 1. Schedule an examination, preferably by a behavioral health specialist or similarly qualified, to ascertain the likely etiology of the Veteran's sinus headaches and intermittent nausea. Regarding the sinus headaches, the examiner should provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that sinus headaches are related to service or were caused or aggravated by the Veteran's service-connected PTSD. With respect to the additionally-claimed intermittent nausea, the examiner should provide similar opinion as to whether it is at least as likely as not (a 50% or greater probability) that it, too, is related to the Veteran's service. It is most important the examiner provide explanatory rationale for these opinions, regardless of whether favorable or unfavorable to these claims. 2. Then review the record for completeness and readjudicate these remaining claims in light of this and all other additional evidence. If either claim remains denied, provide the Veteran a supplemental statement of the case and give him time to respond to it before returning the claim(s) to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs