Citation Nr: 18154858 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 17-24 090 DATE: December 4, 2018 ORDER Service connection for a lower back condition, to include as due to an undiagnosed illness, is denied. Service connection for headaches, to include as due to an undiagnosed illness, is denied. Service connection for coronary artery disease, status post myocardial infarction, to include as due to an undiagnosed illness, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding the Veteran’s claimed lower back condition began during active service, or is otherwise related to an in-service injury, event, or disease. There are no medical findings or symptoms to conclude his claimed back condition is 10 percent disabling. 2. The preponderance of the evidence is against finding the Veteran’s headaches began during active service, or are otherwise related to an in-service injury, event, or disease, or are due to an undiagnosed illness. 3. The preponderance of the evidence is against finding the Veteran’s coronary artery disease, status post myocardial infarction, began during active service, or is otherwise related to an in-service injury, event, or disease, or is due to an undiagnosed illness. CONCLUSIONS OF LAW 1. The criteria for service connection for a lower back disability, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 106(d), 1110, 1117, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for a headache disorder, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 3. The criteria for service connection for a coronary artery disease, status post myocardial infarction disability, to include as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1987 to February 1988 and from October 1990 to July 1991. He also participated in the Army National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran’s claims for service connection for a lower back condition, headaches, and coronary artery disease. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the October 2016 statement of the case and are not repeated here in full. The Veteran has not raised any issues with the duty to notify or the duty to assist, thus, the Board need not discuss any potential issues in this regard. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Veteran has not raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Service Connection 1. Lower back condition The Veteran seeks service connection for a lower back condition, which he contends is related to carrying weapons, duffel bags, and personal chemical protection gear while deployed to Saudi Arabia during the Gulf War. See March 2016 notice of disagreement; October 2016 VA Form 9. The Board concludes direct service connection is not warranted because the preponderance of the evidence is against finding the Veteran has a current lower back condition that began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran’s service medical records show he strained his lower back muscles while loading boxes during a weekend drill for inactive duty training (INACDUTRA) in June 1990 (prior to his deployment to Saudi Arabia from November 1990 to June 1991). The Veteran’s service medical records contain no other evidence of any complaints or treatment of any lower back condition. To the contrary, they evidence an affirmative absence of any such condition. In his October 1990 pre-deployment Report of Medical History, the Veteran specifically denied any recurrent back pain and was cleared medically, which supports a conclusion his June 1990 injury had resolved. In his May 1991 Report of Medical History, completed near the end of his deployment to Saudi Arabia, he again specifically denied any recurrent back pain and reported his present health was “good,” and his concurrent Report of Medical Examination shows he had no spine or other musculoskeletal abnormalities upon clinical evaluation. In his May 1991 Southwest Asia Demobilization / Redeployment Medical Evaluation form, he wrote “None” in response to the question “What diseases or injuries did you have while in the Southwest Asia region?” The record does not contain any post-service medical records relating to any complaints or treatment of any lower back condition until April 2015, when the Veteran went to a private physician with complaints of acute back spasms that he claimed to have had for 20-plus years. The Veteran returned to that physician in October 2015 for a general health checkup, and again reported having had “back spasms for years.” The Veteran underwent a VA examination for his lower back in February 2016. The Veteran reported “intermittent muscle spasms” but no other symptoms (such as pain) nor any functional loss or impairment. The examiner found no abnormalities nor any functional loss or impairment, and diagnosed the Veteran with “normal lumbar spine.” The examiner opined the Veteran’s claimed lower back condition was less likely than not (less than 50% probability) incurred in or caused by the Veteran’s claimed in-service injury, event, or disease. His rationale was the Veteran had only the June 1990 muscle injury, with no follow-up or post-service clinical indications of continuing back problems. The Board finds this opinion to be based on adequate rationale and sound reasoning, and thus highly probative evidence of the etiology of the Veteran’s claimed lower back condition. The Board considered the Veteran’s lay statements regarding his claimed lower back condition. Although the Veteran is competent to report the occurrence of an in-service injury or event, his report is not credible and has no probative value due to its inconsistency with and contradiction by other evidence in the record that is more credible. Specifically, the Board finds that, in addition to the absence of corroborating service and post-service treatment records, the Veteran’s statement that he injured his lower back during active service is inconsistent with the Veteran’s denials of, and the examiner’s negative findings of, any then-existing lower back injuries or conditions at his May 1991 redeployment examination. See, generally, Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (in weighing credibility, VA may consider inconsistent statements, internal inconsistency, self-interest, and consistency with other evidence of record); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Accordingly, the competent and credible evidence of record shows no active duty injury, event, or disease relating to the Veteran’s claimed lower back condition. The Board acknowledges the Veteran’s assertion that the absence of supporting contemporaneous medical evidence in his service treatment records does not mean he did not incur the in-service injuries he claims. However, this is not an instance where the Board is negating the probative value of the Veteran’s lay statements simply because they are unaccompanied by supporting contemporaneous medical evidence, which would be in contravention of Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). To the contrary, the medical evidence of record, namely the May 1991 Report of Medical History, Report of Medical Examination, and Southwest Asia Demobilization / Redeployment Medical Evaluation, which the Board finds more credible as contemporaneous evidence, are inconsistent with and affirmatively contradict the Veteran’s present claim of sustaining a lower back injury during his active duty deployment to Saudi Arabia. The Board also considered September 2015 lay statements from the Veteran’s mother and father in which they both stated they “noticed [the Veteran] had chronic back pain” upon his return from his Gulf War deployment. The Veteran’s mother further stated, “Being a healthcare professional, my opinion is that it was due to activity during his active duty war time.” The Veteran’s parents are competent to provide information on their personal observations of the Veteran, but the Board finds these statements are less probative than the Veteran’s contemporaneous in-service denials of, and the examiner’s negative findings of, any then-existing lower back injuries or conditions at his May 1991 examination near the end of his Gulf War deployment. Further, to the extent the Veteran’s mother is basing her opinion on her status as a healthcare professional, it lacks probative value because it is conclusory and does not provide any factual analysis or rationale to support it. See 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). She provided no explanation for her opinion, nor any indication that she had ever examined the Veteran or reviewed his service records, such that any opinion would be well-informed. The Board also finds the Veteran’s claimed lower back condition is not eligible for presumptive service connection consideration under 38 C.F.R. §§ 3.303(b) and 3.309(a) because the Veteran does not have a current diagnosis of arthritis or any other lower back condition that might qualify as a “chronic disease.” The Board also finds the Veteran’s claimed lower back condition is not eligible for presumptive service connection consideration under 38 C.F.R. § 3.317 because to the extent he exhibits objective indications of a qualifying chronic disability relating to his lower back, the evidence does not show it has become manifest to a degree of 10 percent or more. The Veteran does not have a current diagnosis of any lower back condition. See February 2016 VA examination. However, for Persian Gulf veterans, pain, such as muscle pain or joint pain, may establish an undiagnosed illness that causes a qualifying chronic disability for purposes of 38 C.F.R. § 3.317. Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Here, the Veteran contends he has back pain and muscle spasms that cause him to miss work, and he submitted lay statements from his parents in which they state they have observed the Veteran having back pain. The Veteran and his parents are competent to provide that information. But, even if the Board assumes there is credible evidence of objective indications of chronic disability, the evidence does not show the Veteran’s undiagnosed claimed lower back condition has manifested through any symptoms or functional impairment that would warrant a disability rating of at least 10 percent, as required by 38 C.F.R. § 3.317(a)(i). To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). Spine disabilities are rated under DC 5237 of the General Formula for Rating Disabilities of the Spine. With or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. The VA examiner found the Veteran had a “normal lumbar spine,” with no pain of any kind on examination, as well as no functional loss or impairment, to include no decrease in the Veteran’s range of motion or muscle strength, and specifically found no impact on the Veteran’s ability to work. The Veteran also denied any radicular symptoms and objective testing for radicular symptoms and sensory and reflex impairments was normal. The criteria for a 10 percent rating under the General Formula for Rating Disabilities of the Spine are not met since there was no limitations of motion, nor is there evidence of any vertebral fractures. Although the Veteran complains of muscle spasm, the Board has reviewed both the private medical records and the VA examination report, and none of that evidence confirmed the presence of muscle spasm. There is also no evidence of guarding, or localized tenderness, or abnormal gait. When evaluating musculoskeletal disabilities, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). During the VA examination, the Veteran denied having flare-ups, thus indicating the examination was conducted under conditions that fairly and accurately reflected the nature and symptomology of the Veteran’s claimed condition. The Board finds the examiner’s findings highly probative of the absence of any functional impairment resulting from the Veteran’s claimed lower back condition. Even accepting the Veteran’s lay statement regarding missing work on occasion due to back pain and spasms, with no medical evidence of any symptoms that would result in functional loss (such as decreased motion or muscle strength or evidence of pain on motion), and a medical conclusion his back complaints have no impact on his ability to work, the Board is constrained to find his disability does not meet the criteria for a 10 percent rating. Although he complains of back pain, pain alone does not warrant a compensable disability rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in evaluating the disability rating for a musculoskeletal condition, VA must determine the overall functional impairment. Here, there is no evidence of functional impairment, for the reasons given above. As some form of functional impairment or evidence of painful motion is, at a minimum, the sine qua non for any disability rating, the Veteran’s lack of any such impairment precludes granting service connection on a presumptive basis under 38 C.F.R. § 3.317. Service connection for a lower back condition is not warranted on either a direct or presumptive basis. The benefit-of-the-doubt doctrine is not applicable because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Headaches The Veteran has a current diagnosis of tension headaches. See February 2016 VA examination. He seeks service connection, contending his headaches are related to being “exposed to gas attacks requiring frequent use of gas masks and [protective] suits” while deployed to Saudi Arabia during the Gulf War. See September 2015 lay statement; March 2016 notice of disagreement (“Headaches are a result of . . . and being exposed to different gases shot at us on several occasions.”); October 2016 VA Form 9 (asserting he “had gas exposure” as basis for headaches claim). The Board concludes direct service connection is not warranted because the preponderance of the evidence is against finding the Veteran’s currently-diagnosed tension headaches began during active service, or are otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records show no in-service complaints or treatment of any chronic headaches condition. In his May 1991 Report of Medical History completed shortly prior to returning from his Gulf War deployment, the Veteran reported his health was “good” and he denied having frequent or severe headaches. In his May 1991 Southwest Asia Demobilization / Redeployment Medical Evaluation form, he also wrote “None” in response to the question “What diseases or injuries did you have while in the Southwest Asia region?” As to the Veteran’s primary contention that his headaches are the result of being exposed to chemical agents from “gas attacks,” the Veteran explicitly denied having any reason to believe he was exposed to chemical or germ warfare during his deployment. See May 1991 Southwest Asia Demobilization / Redeployment Medical Evaluation form (responding “No” to the question “Do you have reason to believe that you, or any members of your unit, were exposed to chemical warfare or germ warfare?”). The Board finds the Veteran’s contemporaneous denial of “any reason” to believe he was exposed to chemical agents during his deployment is far more credible than his later statements claiming “several” and “frequent” instances of exposure made for the purpose of obtaining VA disability compensation. See Curry, supra. The Board thus finds that although the Veteran is competent to report his headache symptoms, he is not a reliable historian regarding his claims of in-service events. Caluza, supra. Although not independently dispositive, the Board’s findings on this point are bolstered by the absence in the Veteran’s private treatment records of any complaints of headaches until October 2015, when he reported occasional migraines. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The Veteran underwent a VA examination for his claimed headaches in February 2016. The examiner diagnosed him with tension headaches and, finding no service or post-service medical records showing any headache disorder diagnosis, opined the Veteran’s non-service connected hypertension and suspected obstructive sleep apnea were conditions that can cause tension-headaches. The Board finds the examiner’s opinion is probative of the absence of any causal relationship between the Veteran’s service and his claimed headaches, as it is based on sound rationale, i.e., medical attribution of his headaches to documented, non-service connected conditions. The Board also considered September 2015 lay statements from the Veteran’s mother and father in which they both stated the Veteran has “frequent headaches.” The Veteran’s father further stated he believes the Veteran’s headaches “are from his exposure to chemicals and gas agents during his war time.” The Board finds these statements offer little probative value in support of the Veteran’s claim. The statements are vague and non-specific as to whether they have personally observed the Veteran’s headache symptomology or are relaying statements made by the Veteran, nor do they offer probative evidence regarding the onset, frequency, or duration of any symptomology they may have personally observed. Furthermore, the Veteran’s father is not competent to opine that the Veteran’s headaches are etiologically related to “exposure to chemicals and gas agents” because even if the Board did not find the evidence affirmatively weighs against finding any such exposure occurred, there is no evidence he has the necessary medical or scientific training to establish that causal link. He also does not have any first-hand knowledge of such exposures, since he was not stationed there, so his comments are merely repeating what the Veteran told him. The Board also finds the Veteran’s tension headaches are not a qualifying chronic disability for purposes of 38 C.F.R. §3.317 because his tension headaches are neither an undiagnosed illness nor a medically unexplained chronic multisymptom disability. The February 2016 VA examiner diagnosed the Veteran with tension headaches, and opined they could be attributable to his non-service connected hypertension and/or suspected obstructive sleep apnea. See 38 C.F.R. §3.317(a)(2)(ii) (“Chronic multisymptom illnesses of partially understood etiology and pathophysiology . . . will not be considered medically unexplained.”). As noted above, the Board finds the examiner’s opinion highly probative of the absence of any causal relationship between the Veteran’s service and his claimed headaches. The weight of the evidence supports finding the Veteran did not sustain any in-service injury, event, or disease, to include exposure to chemical or germ warfare agents, that is etiologically linked to his claimed headaches. The weight of the evidence supports also finding the Veteran’s tension headaches are not manifestations of a qualifying chronic disability for purposes of 38 C.F.R. § 3.317. Service connection for headaches is not warranted. The benefit-of-the-doubt doctrine is not applicable because the preponderance of the evidence is against the claim. 3. Coronary artery disease, status post myocardial infarction The Veteran has a current diagnosis of coronary artery disease (CAD), status post myocardial infarction, for which he seeks service connection. See February 2016 VA examination (confirming prior diagnosis of CAD, status post myocardial infarction). He contends this condition is related to service. See March 2016 notice of disagreement; October 2016 VA Form 9. The Board concludes service connection is not warranted because the preponderance of the evidence is against finding the Veteran’s currently-diagnosed CAD, status post myocardial infarction, began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran’s service medical records show in January 1991 he complained of having had a rapid heartbeat for two weeks. He was evaluated for tachycardia (rapid heart rate) but found to have regular sinus rhythm (normal heart rate and rhythm) upon examination, and valsalva was thought to be the probable cause of his complaint. As explained by the February 2016 VA examiner, valsalva is when one tries to force the exhale when the windpipe is closed, and occurs in situations such as straining using the toilet or lifting a heavy object while holding one’s breath, resulting in slowing or impeding the return of blood to the heart and eventually causing the heart rate to increase temporarily. The examiner stated valsalva is also used to aid the physician during a physical exam. In his May 1991 Report of Medical History, completed near the end of his deployment to Saudi Arabia, he reported his present health was “good” and specifically denied any heart trouble, to include palpitations or pounding heart, and his concurrent Report of Medical Examination shows he had no heart abnormalities upon clinical evaluation. The Veteran’s service medical records contain no other complaints of or treatment for any heart condition. The Veteran’s post-service medical records show no complaints of or treatment for any heart condition until July 2008, when he was admitted to the hospital for a heart attack (myocardial infarction) and diagnosed with CAD, status post myocardial infarction, and cardiomyopathy. At that time, he reported having had chest pain for the past three days, but reported no other history of complaints of or treatment for any heart condition. The Veteran’s post-service medical records show no other complaints of or treatment for any heart condition. The Veteran underwent a VA heart examination in February 2016. The examiner opined the Veteran’s CAD is less likely than not related to his service in Southwest Asia because his myocardial infarction and CAD were not diagnosed until 17 years after service, his in-service complaint of rapid heart rate was thought at the time to be probably due to valsalva, which does not cause CAD, and also was temporary, and thus not related to nor resulting in his CAD. The examiner pointed out the Veteran was never actually diagnosed or treated with tachycardia during service, but rather was just evaluated, and the Veteran’s service medical record for that incident shows his heart rate and rhythm were normal at the time of examination. The Board finds the examiner’s opinion is probative of the absence of any causal relationship between the Veteran’s service and his CAD, as it is based on adequate facts and a sound rationale. The Board acknowledges the Veteran’s argument that the VA examiner “cannot be certain” the Veteran’s service did not contribute to his heart attack. However, medical certainty is not the standard. The standard is whether it is at least as likely as not the Veteran’s CAD is etiologically related to his service, and the VA examiner has competently and credibly opined that it is less likely than not related. The Board considered the September 2015 lay statements by the Veteran’s father and mother stating the Veteran’s heart attack was due to Gulf War-related stress. The Veteran’s father has not shown he has medical training or experience that makes him competent to opine as to the etiology of the Veteran’s heart attack. Likewise, although the Veteran’s mother states she is a “healthcare professional,” she has not shown she has medical training or experience that makes her competent to opine as to the etiology of the Veteran’s heart attack. Moreover, even if she is competent to offer a nexus opinion, her opinion has no probative value because it is conclusory and lacks any factual or analytical foundation. The Board also finds the Veteran’s CAD is not a qualifying chronic disability for purposes of 38 C.F.R. §3.317 because his condition is neither an undiagnosed illness nor a medically unexplained chronic multisymptom disability. The February 2016 VA examiner stated CAD has a “clear and specific etiology and diagnosis.” As noted above, the Board finds the examiner’s opinion highly probative of the absence of any causal relationship between the Veteran’s service and his CAD. The Board further finds that, to the extent the Veteran’s CAD may be considered a “chronic disease” for purposes of presumptive service connection under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), the evidence of record does not indicate manifestations of the disease in service or to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, the Veteran was never actually diagnosed during service with tachycardia, CAD, or any other heart condition, and there is no medical evidence showing any complaints of or treatment for any CAD or other heart condition until 2008, approximately 17 years after service. Moreover, the February 2016 VA examiner competently and credibly opined tachycardia does not cause CAD. For the same reasons, the Board further finds that continuity of symptomatology is not established. 38 C.F.R. § 3.303(b). The weight of the evidence supports finding the Veteran did not sustain any in-service injury, event, or disease that is etiologically linked to his claimed CAD status post myocardial infarction. The weight of the evidence supports also finding the Veteran’s CAD is not a manifestation of a qualifying chronic disability for purposes of 38 C.F.R. § 3.317. Service connection is not warranted. The benefit-of-the-doubt doctrine is not applicable because the preponderance of the evidence is against the claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel