Citation Nr: 18153285 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-55 911 DATE: November 27, 2018 ORDER Entitlement to service connection for left wrist strain is granted. Entitlement to service connection for lumbosacral strain is granted. Entitlement to service connection for left knee strain is granted. Entitlement to service connection for sinusitis is granted. Entitlement to service connection for tension headaches and migraine headaches is granted. Entitlement to service connection for irritable bowel syndrome is granted. REMANDED Entitlement to service connection for respiratory disability, including chronic obstructive pulmonary disease (COPD), is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s left wrist strain began during active service. 2. The evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain began during active service. 3. The evidence is at least evenly balanced as to whether the Veteran’s left knee strain began during active service. 4. The evidence is at least evenly balanced as to whether the Veteran’s sinusitis began during active service. 5. The evidence is at least evenly balanced as to whether the Veteran’s tension headaches and migraine headaches began during active service. 6. The evidence is at least evenly balanced as to whether the Veteran’s irritable bowel syndrome began during active service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left wrist strain are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for lumbosacral strain are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left knee strain are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for sinusitis are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tension headaches and migraine headaches are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for irritable bowel syndrome are met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2006 to March 2008, which includes service in Southwest Asia. He also had a period of active duty for training with the Army National Guard from May 2005 to August 2006. His awards include the Combat Action Badge and Army Commendation Medal. These matters come before the Board of Veterans’ Appeals (Board) from December 2013 and April 2014 rating decisions. As a final preliminary matter, in light of the Veteran’s reported symptoms and contentions and to encompass all disorders that are reasonably raised by the record, the Board has characterized the claim of service connection for COPD as a claim of service connection for respiratory disability, to include COPD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for left wrist strain, lumbosacral strain, left knee strain, sinusitis, tension headaches, migraine headaches, and irritable bowel syndrome The Veteran contends that he has current left wrist, back, left knee, sinus, headache, and gastrointestinal disabilities which had their onset in service while serving in Iraq, and that he has continued to experience left wrist, back, left knee, sinus, headache, and gastrointestinal symptomatology in the years since service. The Board concludes, for the following reasons, that the Veteran has current diagnoses of left wrist strain, lumbosacral strain, left knee strain, sinusitis, tension headaches, migraine headaches, and irritable bowel syndrome, and that the evidence is at least evenly balanced as to whether these disabilities began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). A November 2013 opinion from a VA physician assistant, the reports of VA sinus, headache, and intestinal conditions examinations dated in November 2013, and a June 2017 VA traumatic brain injury examination report show the Veteran has current diagnoses of left wrist strain, lumbosacral strain, left knee strain, sinusitis, tension headaches, migraine headaches, and irritable bowel syndrome. There is also evidence of left wrist, back, left knee, sinus, headache, and gastrointestinal symptoms in service and evidence of continuous symptoms in the years since service which indicates that the current disabilities were incurred in service. The Veteran contends that he began to experience left wrist pain, back pain, left knee pain, nasal discharge/allergies, headaches, and gastrointestinal symptoms (including alternating diarrhea and constipation) in service while stationed in Iraq. His “Certificate of Release of Discharge from Active Duty” form (DD Form 214) indicates that he served in Iraq from February 2007 to February 2008 and that he received the Combat Action Badge. His receipt of the Combat Action Badge confirms that he engaged in combat with the enemy. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154 (b). The combat rules not only reduce the evidentiary burden for establishing in-service disease, but may also assist a veteran in showing incurrence of the disability in service. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The Veteran is competent to report left wrist, back, left knee, sinus, headache, and gastrointestinal symptoms in service. His reports of such symptoms in combat situations in service are satisfactory evidence and the reports are consistent with the circumstances of his service. There is no clear and convincing evidence to the contrary. Also, the Veteran’s service treatment records confirm that in January 2008 he was treated for pain and stiffness in the left knee. Also, he reported during post-deployment health assessments dated in February and August 2008 that he experienced back pain, a runny nose, headaches, and diarrhea during his deployment to Iraq and/or at the time of the health assessments. Hence, the Board finds that the presence of left wrist, back, left knee, sinus, headache, and gastrointestinal symptoms in service is established. Moreover, the Veteran’s post-service medical records and lay statements indicate that his left wrist, back, left knee, sinus, headache, and gastrointestinal symptoms have continued in the years since service. The Veteran is competent to report left wrist, back, left knee, sinus, headache, and gastrointestinal symptoms in service and continuous symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is nothing to explicitly contradict these reports and they are consistent with the evidence of record. Thus, the Board finds that the reports of continuous left wrist, back, left knee, sinus, headache, and gastrointestinal symptoms in the years since service are credible. The Board acknowledges that the advanced practice nurse who conducted VA wrist, back, knee, sinus, and headache examinations in September 2013 provided opinions as to the etiology of the Veteran’s claimed disabilities. These opinions, however, technically address secondary service connection and/or are primarily based on the absence of specific wrist, back, knee, and sinus diagnoses (other than wrist, back, and knee pain). Thereafter, the physician assistant who provided the November 2013 diagnoses of left wrist strain, lumbosacral strain, and left knee strain opined that these disabilities were not related to service. The rationale was that there was no evidence of any significant injury, assault, or physical injury in service. Although the Veteran was injured in a terrorist blast in service, there were no specific injuries to his spine, knee, or wrist. The November 2013 opinion is of little, if any, probative value because it is essentially entirely based on the absence of evidence of treatment for specific wrist, back, and knee injuries in service. The physician assistant did not otherwise acknowledge or comment upon the evidence of back and left knee pain in the Veteran’s service treatment records and his competent and credible reports of left wrist, back, and left knee symptoms in service and in the years since that time. In this regard, a 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). Dalton v. Peake, 21 Vet. App. 23 (2007). This is particularly true in the case of a combat veteran. Congress enacted the combat statute (now 38 U.S.C. § 1154(b) because of its concern that combat veterans faced “major obstacle[s]” when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. Reeves v. Shinseki, 682 F.3d at 998 (citing H.R. Rep. No. 1157, at 3 (1941)). In many instances, medical records do not survive combat conditions. Id. Moreover, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. In sum, the evidence reflects that the Veteran experienced left wrist, back, left knee, sinus, headache, and gastrointestinal symptoms in service and that there have been continuous symptoms in the years since service. He has also been diagnosed as having current left wrist strain, lumbosacral strain, left knee strain, sinusitis, tension headaches, migraine headaches, and irritable bowel syndrome. There is no adequate and probative medical opinion contrary to a conclusion that the current left wrist, back, left knee, sinus, headache, and gastrointestinal disabilities had their onset in service. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current left wrist strain, lumbosacral strain, left knee strain, sinusitis, tension headaches, migraine headaches, and irritable bowel syndrome had their onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed left wrist strain, lumbosacral strain, left knee strain, sinusitis, tension headaches, migraine headaches, and irritable bowel syndrome is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[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”). REASONS FOR REMAND Entitlement to service connection for respiratory disability, including COPD, is remanded. For veterans with service in the Southwest Asia theater of operations (e.g. Iraq) during the Persian Gulf War, service connection may be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under this law and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of “a qualifying chronic disability” that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317 (a)(1). For purposes of 38 C.F.R. § 3.317, qualifying chronic disabilities include, among other things, an undiagnosed illness and a medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317 (a)(2). Signs or symptoms that may be manifestations of an undiagnosed illness or a medically unexplained chronic multisymptom illness include, but are not limited to, signs or symptoms involving the respiratory system (upper or lower). 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a),(b). In the present case, the Veteran served in the Southwest Asia theater of operations and he reported a chronic cough on his February 2008 post-deployment health assessment. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for respiratory disability because no VA examiner has opined as to the nature and etiology of the Veteran’s claimed respiratory disability. Hence, he should be afforded an appropriate VA examination upon remand. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Eastern Oklahoma VA Health Care System (dated to June 2017) and the Veterans Health Care System of the Ozarks (dated to August 2018). Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the remaining issue on appeal. A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for respiratory disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for respiratory disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records from the Eastern Oklahoma VA Health Care System for the period since June 2017; from the Veterans Health Care System of the Ozarks for the period since August 2018; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any respiratory disability. The examiner must opine whether any respiratory symptom experienced by the Veteran since approximately December 2013 is a manifestation of an identifiable disability (in this regard, the examiner must acknowledge and consider an April 2013 VA addendum note which indicates that x-rays revealed mild COPD). If any respiratory symptom is a manifestation of an identifiable disability, the examiner must opine whether the disability at least as likely as not (1) began during active service; or (2) is related to an in-service injury, event, or disease, including the Veteran’s reported chronic cough documented on his February 2008 post-deployment health assessment. If any current respiratory symptom is not a manifestation of an identifiable disability, the examiner must opine whether the symptom at least as likely as not represents an objective indication of chronic disability resulting from an undiagnosed illness related to service in Southwest Asia or a medically unexplained chronic multisymptom illness which is defined by a cluster of signs or symptoms. If so, the examiner should also describe the extent to which the illness has manifested. The examiner must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel