Citation Nr: 1802783 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-15 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the cervical spine. 2. Entitlement to service connection for migraine headaches as a result of electrical shock. 3. Entitlement to service connection for degenerative changes of the thoracolumbar spine. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran, Spouse and Co-worker ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Marine Corps from July 1983 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board notes that the issues of entitlement to service connection for degenerative changes of the left knee and entitlement to service connection for residuals of vaccination, were withdrawn by the Veteran in April 2014. FINDINGS OF FACT The more probative evidence indicates that the Veteran's degenerative arthritis of the cervical spine is not related to service. The more probative evidence indicates that the Veteran's migraine headaches, as a result of electrical shock, are related to service. The more probative evidence indicates that the Veteran's degenerative changes of the thoracolumbar spine are not related to service. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW 1. The criteria for service connection for degenerative arthritis of the cervical spine have not been met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for service connection for migraine headaches as a result of electrical shock have been met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for service connection for degenerative changes of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran's representative has not raised any procedural arguments regarding the notice or assistance provided in this case. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit held that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). See also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310 (a) (2016); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which factual determinations are going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In addition, as noted above, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In addition, the U.S. Court of Appeals for Veterans Claims (Court) held that the credibility of lay evidence can be affected and even impeached by factors such as inconsistent statements, internal inconsistency of statements, and inconsistency with other evidence of record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997). Cervical Spine The Veteran asserts that his cervical spine disorder is related to his active duty service. The April 2011 VA examination shows a diagnosis of degenerative changes of the cervical spine with mild C7 radiculopathy. Therefore, the Veteran has a current disability as required by 38 C.F.R. § 3.303. As to the second element, an in-service incurrence, the Veteran reports that he was injured when a hatch came loose and knocked him to the ground. Service treatment records from June 1985, show the Veteran was injured due to a trauma caused while lowering an estimated 400 pound hatch door, that dropped on the posterior aspect of his shoulder. There is no other record of treatment during service. Medical treatment records indicate the Veteran was involved in a motor vehicle accident in 1989 which impacted his neck and chest. While the examiner did diagnose the Veteran with degenerative changes of the cervical spine with mild C7 radiculopathy, the examiner determined the condition was not caused by or the result of active duty service. The April 2011 examiner opined that there was no evidence that the Veteran suffered an accident or illness related to the cervical spine while in service. He did opine that there was evidence of a cervical spine injury post service. The April 2011 VA examiner determined that the degenerative changes of the Veteran's cervical spine were not caused by or the result of active duty service. The examiner opined that the Veteran suffered no accident related to the cervical spine during active duty. The examiner's notes reflect review of the treatment notes related to the right shoulder injury after, the above mentioned, 400 pound hatch fell sharply on the posterior aspect of his right shoulder. The Veteran submitted private treatment records showing he has been receiving treatment for back pain after service; however, they do not offer a sufficient nexus opinion. The medical correspondence from December 2016 is insufficient for purposes of determining service connection. In that regard, the examiner provided essentially no rationale for the opinions stated. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion). It should be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements, buddy statements, and hearing testimony. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue of whether the Veteran's cervical spine disability was caused by active service, or is otherwise related to service or a service-connected disability, falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not been shown to possess the necessary medical expertise to provide such opinions, and the competent medical opinion of record, namely the April 2011 examiner, provided a negative nexus opinion regarding the Veteran's cervical spine disability. The Board places great weight on the opinion of the April 2011 VA examiner, as the examiner has the medical training and expertise necessary to offer a medical opinion in such a complex matter. Although the Veteran contends that he has a cervical spine disability that is either directly or secondarily related to his active duty service, the factual picture presented here is complex. Whether the Veteran's currently diagnosed cervical spine disability is related directly or secondarily to his active duty service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran's cervical spine disability is related to his active duty service is not within the realm of knowledge of a non-expert given the above facts. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that the Veteran's statements and contentions in this regard are not probative of whether the Veteran's cervical spine disability is related to his active duty service either directly or secondarily. Thus, the Veteran's statements are afforded less probative value with respect to the medical question of whether the Veteran's thoracolumbar spine disability is related to his active duty service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this instance, the Board finds that the medical evidence is more probative than the Veteran's lay statements with regard to the issue of entitlement to service connection for cervical spine disability. Because the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board is sympathetic to the Veteran's claim and appreciative of the Veteran's honorable service to our country, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Migraine Headaches The Veteran asserts that his migraine headaches are related to his active duty service. At the May 2011 VA examination, the Veteran was diagnosed with migraine headaches. Therefore, the Veteran has a current disability as required by 38 C.F.R. § 3.303. As to the second element, in-service incurrence, the Veteran reports that while working as an electrician on an AC aircraft, he received an electric shock. The April 2014 buddy statement, from an eyewitness to the incident, corroborates the Veterans account of the event. The Veteran's service treatment records do not show any complaint or treatment of an incident occurring during service. However, at the June 2017 Board hearing, the Veteran testified that he did not report being injured on leave because he damaged government property and did not want to get in trouble for it. Consequently, he didn't go to the hospital or report the incident. At the April 2011 VA examination, the Veteran indicated he had been having headaches for the past 15 years. He does report that his headaches have gotten worse. The headaches occur weekly and last for hours. In light of the above, the Board finds the following evidence should be afforded the greatest amount of weight: (1) the Veteran's medical evidence of a current disability, (2) his reports of headaches during service including the April 2011 VA examination where the Veteran states he had migraines for the past 15 years, (3) his competent and credible statements, along with his spouse's statements that his headaches have been severe since service, (4) his competent and credible history of relevant symptoms since service discharge, (5) the eyewitness testimony, from a fellow electrician, corroborating the Veteran's account of the in-service event and his subsequent injury and the Veteran's experience as an aircraft electrician. The evidence tends to show that the current condition is at least as likely as not related to his active duty service. Therefore, the Board finds the evidence is at least in equipoise, with regard to the Veteran's migraine headaches being related to his active duty service. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for migraine headaches as a result of electrical shock, has been established. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thoracolumbar Spine The Veteran asserts that he has a thoracolumbar spine condition that is related to his active duty service. At the April 2011 VA examination, the Veteran was diagnosed with degenerative changes of the thoracolumbar spine. Therefore, the Veteran has a current disability, as required by 38 C.F.R. § 3.303. As to the second element, an in-service incurrence, the Veteran reports that he was injured when a hatch came loose and knocked him to the ground. Service treatment records from June 1985, show the Veteran was injured due to a trauma caused while lowering an estimated 400 pound hatch door that dropped on him. In December 2016, the Veteran's private examiner submitted correspondence stating that the Veteran suffered a back injury due to an airplane platform falling on his upper back. The examiner indicated that the Veteran has had a worsening of his entire back pain and has been treated with pain medication, nerve stimulators and physical therapy, without much success. The physician's letter links the Veteran's back injury to an in-service event. However, the examiner's letter does not provide the basis for the nexus opinion. The opinion is not supported by an explanation, and does not explain if it is based on a review of the claims folder, and supported by the evidence of record. In that regard, the examiner provided essentially no rationale for the opinions stated. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion). The April 2011 VA examiner determined that the degenerative changes of the thoracolumbar spine was not due to, or a result of active duty service. The examiner noted that the Veteran did have an acute flare up of a thoracic lumbar spine condition in September 1984, due to an injury he had prior to active-duty service, which he was treated for during active-duty service. The September 1984 examiner did not find any structural abnormality in either the lumbar spine or the right hip. The Veteran recounted a history of having chronic back pain, for a number of years, while doing heavy work on a farm, prior to active duty service. Service treatment records from September 1984, reflect the Veteran's complaint of diffuse pain throughout his lumbar spine and hip. Ultimately, the examiner determined the Veteran did not suffer an injury or illness related to the thoracolumbar spine during active duty service. The examiner further opined that there is no indication that the Veteran's thoracolumbar spine condition, that existed prior to active-duty service, was aggravated by active-duty service. She indicated that the Veteran's condition represents a natural progression of his pre-service back condition. The Board finds this medical opinion to be adequate, as it is based on consideration of the veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). It should be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements, buddy statements, and hearing testimony. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the issue of whether the Veteran's thoracolumbar spine disability was caused by active service, or is otherwise related to service or a service-connected disability, falls outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not been shown to possess the necessary medical expertise to provide such opinions, and the competent medical opinion of record, namely the April 2011 examiner, provided a negative nexus opinion regarding the Veteran's thoracolumbar spine disability. The Board places great weight on the opinion of the April 2011 VA examiner, as the examiner has the medical training and expertise necessary to offer a medical opinion in such a complex matter. Although the Veteran contends that he has a thoracolumbar spine disability that is either directly or secondarily related to his active duty service, the factual picture presented here is complex. Whether the Veteran's currently diagnosed thoracolumbar spine disability is related directly or secondarily to his active duty service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran's thoracolumbar spine disability is related to his active duty service is not within the realm of knowledge of a non-expert given the above facts. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that the Veteran's statements and contentions in this regard are not probative of whether the Veteran's thoracolumbar spine disability is related to his active duty service either directly or secondarily. Thus, the Veteran's statements are afforded less probative value with respect to the medical question of whether the Veteran's thoracolumbar spine disability is related to his active duty service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this instance, the Board finds that the medical evidence is more probative than the Veteran's lay statements with regard to the issue of entitlement to service connection for thoracolumbar spine disability. Because the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board is sympathetic to the Veteran's claim and appreciative of the Veteran's honorable service to our country, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). (CONTINUED ON NEXT PAGE) ORDER Service connection for degenerative arthritis of the cervical spine is denied. Service connection for migraine headaches as a result of electrical shock is granted. Service connection for degenerative changes of the thoracolumbar spine is denied. ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs