Citation Nr: 18160061 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 10-18 095 DATE: December 21, 2018 ORDER Entitlement to service connection for a mid-back condition is denied. Entitlement to service connection for headaches is granted. FINDINGS OF FACT 1. The Veteran’s mid-back disability is not etiologically related to service. 2. Resolving all doubt in favor of the Veteran, his current headaches originated during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a mid-back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 2003 to August 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This claim was previously remanded by the Board in July 2017 for further development, to include providing VA examinations. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed, Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for a mid-back condition. The Veteran contends that his mid-back condition is related to his active service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The statute provides that the presumption of soundness applies when a veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. There is some indication in the evidence that the Veteran’s back disability is a pre-existing disease that manifested prior to service. The Board notes that a back disability was not “noted” upon the February 2003 entrance examination. On physical examination at entrance in February 2003, clinical evaluation of his back was normal. Therefore, the presumption of soundness applies here. Service treatment records show that in his September 2006 post-deployment health assessment, the Veteran reported that he experienced back pain during his deployment. VA treatment records note complaints of chronic low back pain and neck pain, which was treated with medication. In his February 2008 VA examination, the Veteran was diagnosed with cervical and lumbar strain. The Veteran reported that he was injured during his training by routine running and carrying heavy objects. The onset of the Veteran’s cervical and lumbar strain was noted as January 2004. The Veteran complained of pain and tenderness in his neck intermittently for the past year. On examination, the thoracic and cervical spine were normal. The examiner opined that the current lumbar and cervical strain disabilities were less likely as not related to that for which the Veteran was treated in military service, as the Veteran stated his condition on his post-deployment physical but there were no medical visits to confirm the diagnosis and the Veteran had pain before his entrance examination. In a September 2017 VA spine examination, the Veteran described pain from his mid-back to the top of his shoulders. He reported that he was seen for this pain in-service and that the pain continued since his separation in 2007. The diagnoses were intervertebral disc syndrome and neck pain. On the thoracolumbar spine examination, the Veteran reported sharp lower back pain with bending over, lifting, walking, and sitting and with cold weather. His pain was alleviated with rest. The Veteran reported not seeing his VA providers on a regular basis and denied any active injuries or trauma to his lumbar spine in service. Range of motion of the cervical and lumbar spines were normal, and pain noted did not result in functional loss. The examiner opined that it was less likely as not that the Veteran’s cervical and lumbar strains were incurred in active duty service, as the Veteran did not carry a diagnosed cervical and lumbar strain in-service or post-service other than pain. With respect to aggravation, the examiner stated that he could not provide an aggravation medical opinion without resorting to speculation due to the lack of sufficient details in the treatment records regarding the baseline level of severity and whether the current severity is greater than the baseline level. The Board finds that the evidence of record does not support a finding of service connection for a mid-back disability. The Board finds the VA examiners’ opinions to be the most probative evidence of record regarding the relationship between the Veteran’s back disability and service. The examiners expressed familiarity with the record and provided a clear explanation of the rationale. The examiners outlined the Veteran’s medical history and found it less likely than not that the Veteran’s back disability was related to service. The February 2008 examiner noted the Veteran’s service treatment records did not indicate a diagnosed back disability, but rather contained one complaint of back pain at a post-deployment physical without any subsequent treatment. The September 2017 VA examiner noted that the Veteran’s post-service treatment records contained complaints of neck and back pain but that the Veteran had not been diagnosed with a cervical or lumbar spine disability. The Board notes the Veteran’s reports of pain but the record does not reflect that he has had a functional disability, to include one caused by pain, of his back. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board finds no reason to question the providers’ expertise or the rationales given. In forming these opinions, the examiners clearly considered the Veteran’s lay statements. The Board has also considered the statements from the Veteran attributing his mid-back disability to service. However, the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to provide a diagnosis or a competent opinion as to medical causation. The question of causation involves a complex medical question, and he does not have the medical expertise to provide such an opinion. Therefore, he is not competent to provide opinions as to the etiology of a mid-back disability. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a mid-back disability. Accordingly, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for headaches. The Veteran contends that service connection is warranted for his headaches as a result of his active duty service. Service treatment records reflect that, in an October 2004 post-deployment health assessment, the Veteran reported that he currently had headaches. In a September 2006 post-deployment health assessment, the Veteran reported that he experienced headaches during his deployment. In an August 2007 statement, the Veteran reported that he has had at least two severe headaches per day since he returned from Iraq. In a February 2008 VA examination, the Veteran was diagnosed with headaches, and the Veteran reported that he developed headaches of an unknown type while serving without a known cause. Additionally, the headaches had progressively worsened since onset. The examiner noted that the injury or disease in question – i.e. headaches – occurred during active service yet opined that it was less likely than not that the Veteran’s current headaches were caused by or a result of cephalgia or headaches in service. The examiner stated that his opinion was based on lack of an established diagnosis of headaches in the Veteran’s military records. The Veteran was afforded a VA examination in September 2017 in accordance with the Board’s remand directives. The noted diagnosis was atypical vascular headaches, which the examiner noted was diagnosed in 2016. The Veteran described his headaches as pressured and stabbing on the frontal region around both eyes, lasting all day until bedtime with occasional symptoms of photophobia. The examiner opined that the diagnosed headaches were less likely as not incurred in or caused by service. The examiner reasoned that, although the Veteran’s post-deployment forms showed complaints of headaches, his separation examination was negative for complaints of headaches. The examiner also noted that the Veteran had not been seen for any complaints of headaches since February 2016. With respect to aggravation, the examiner stated that he could not provide an aggravation medical opinion without resorting to speculation due to the lack of sufficient details in the treatment records regarding the baseline level of severity and whether the current severity is greater than the baseline level. After a careful review of the record, and resolving all doubt in favor of the Veteran, the Board has determined, based upon the probative evidence of record, that the Veteran’s headaches were incurred during his active service. The probative medical evidence of record reflects that the Veteran has been diagnosed with a current headache disability. See February 2016 VA treatment records. Service treatment records reflect complaints of headaches following the Veteran’s deployments to Iraq and Afghanistan. Furthermore, the Veteran sought service connection for headaches in August 2007, the same month of his separation from service. At that time, the Veteran stated that he had had 2 headaches a day since he returned from Iraq. The Veteran has also stated to VA physicians that his headaches began in service and continued on a daily basis. The Veteran’s statements of a continuity of headaches since his active service are competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).   Taken together, these records place the evidence in relative equipoise. Thus, resolving all doubt in favor of the Veteran, the probative evidence of record demonstrates his current headache disability had its onset during his active service. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel