Citation Nr: 1806818 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-21 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The appellant served an initial period of active duty for training (ACDUTRA) pursuant to his enlistment in the United States Army Reserves from August 1993 to December 1993, with honorable reserve service thereafter until July 2002. He has been awarded service connection for tinnitus in conjunction with this period of service, thereby establishing his "veteran" status in the instant appeal. In July 2002, he reenlisted in the Army Reserves for an eight year term of service, and his service was terminated prematurely in November 2006. Personnel records characterize his discharge as under other than honorable conditions. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In November 2009, the Veteran testified at a hearing conducted before a Veterans Law Judge who is no longer employed by the Board. A copy of the hearing transcript is of record. The Veteran was offered an opportunity to participate in a new Board hearing to be conducted by a Veterans Law Judge who would decide his appeal. He declined the offer in March 2012. The appeal was subsequently reassigned to the undersigned Veterans Law Judge for adjudication. To date, the Veteran has not requested another hearing. This case has a complex procedural history. The Veteran's appeals of his claims for service connection for a low back disability and for headaches were remanded by the Board for additional development in February 2010, May 2012, and June 2015. When the claims returned in April 2016, the Board remanded the service connection claim for headaches for an addendum medical nexus opinion, and denied service connection for a low back disability, as to the in-service element of service connection, based, in part, on a VA examiner's finding of no evidence of chronicity of the Veteran's back pain. In June 2016, the Veteran appealed the Board's denial of the low back disability claim to the United States Court of Appeals for Veterans Claims (Court). A February 2017 Joint Motion For Partial Remand (JMPR) requested the Court vacate the Board's denial of the low back disability claim. In the JMPR, the parties requested that the Veteran's claim of service connection for a low back disability be vacated because the Board had failed to obtain back-related treatment records from his private physician, M. D. West, D.C. The Court issued an Order granting the JMPR in February 2017. Thereafter, in May 2017, the Board remanded the matters on appeal to have the Agency of Original Jurisdiction (AOJ) provide the Veteran with the proper authorization form in order to obtain the outstanding back-related treatment records from M. D., West, D. C.. In a May 2017 letter to the Veteran, the RO requested that he complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information, so that it could obtain treatment records from M.D. West, D.C. The Veteran did not submit a completed 21-4142. Thus, the RO was unable to obtain records from M. D. West, D. C. In its May 2017 remand, the Board also requested that the Veteran be scheduled for additional VA opinions to determine the nature and etiology of his low back disability and headaches. VA examiners provided the requested VA opinions in June 2017. (See opinion, dated and signed by a VA Advanced Registered Nurse Practitioner (ARNP) in July 2017)). FINDINGS OF FACT 1. The evidence of record does not reflect that the Veteran had a chronic low back disorder during his initial period of ACDUTRA or during honorable reserve service thereafter through July 2002. 2. The competent medical evidence does not establish that the Veteran's lumbosacral strain, first noted in 2009, is related to ACDUTRA or subsequently dated honorable reserve service through July 2002. 3. The Veteran's headaches have not been shown to have clearly and unmistakably existed prior to his period of ACDUTRA. 4. The Veteran's headaches have not been shown to have had their onset in or to have been caused by his period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic low back disability, lumbosacral strain, have not been met. 38 U.S.C. §§ 101, 1110, 1131, 1153 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.306 (2017). 2. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board also finds that there has been compliance with its May 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As noted in the Introduction, in May 2017, the Board remanded the appeal to have the AOJ provide the Veteran with the proper authorization form in order to obtain outstanding back-related treatment records from M. D., West, D. C.. In a May 2017 letter to the Veteran, the RO requested that the Veteran complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information, so that it could obtain treatment records from M.D. West, D.C. The Veteran did not submit a completed 21-4142. Thus, the RO was unable to obtain records from M. D. West, D. C. The duty to assist the Veteran in the development of evidence pertinent to her claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in circumstances where she may or should have evidence that is essential in obtaining the putative evidence. Id. In light of the forgoing, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). II. Merits Analysis The Veteran seeks service connection for a low back disability and for headaches. After a brief discussion of the general laws and regulations governing service connection, the Board will analyze the merits of each disability separately below. Direct service connection will be granted for a disability resulting from a disease or injury incurred during or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303 (a). Where a disease is first diagnosed after service, service connection will be granted when all of the evidence establishes that the disease was incurred during active service. 38 U.S.C § 1113 (b); 38 C.F.R. § 3.303 (d). "Active service" includes active duty, a period of active duty for training (ACDUTRA) in which the individual was disabled from a disease or injury incurred or aggravated in the line of duty, and a period of inactive duty training (IDT) in which the individual was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. §§ 101 (24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. In the instant case, the appellant served on ACDUTRA and/or IDT, and he has been awarded service connection for tinnitus incurred during his military service and, therefore, he is considered a veteran for the instant appeal. Generally, to establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis and organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.§§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). Migraine headaches are considered to be an organic disease of the nervous system. See M21-1, Part IV.ii.2.B.2.b. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Arthritis and migraine headaches are qualifying chronic diseases and as such may be service-connected solely on the basis of evidence of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran has not found to have arthritis of the lumbar spine or clinically diagnosed migraine headaches, service connection solely based on the demonstration of continuity of symptomatology is not applicable to either claim in the instant appeal. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4. The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); see also Jandreau, 492 F.3d 1376-77. Generally, a Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C.§ 5107 (b)). i) Low Back Disability The Veteran seeks service connection for a low back disability. In statements and testimony of record, he maintains that his current low back problems had their onset in the early 1990s and that they have continued to the present day. The Board will deny service connection for a lumbar spine disability because the preponderance of the evidence of record is against a nexus of this disability to military service. Regarding the first element of service connection, evidence of a current disability, a VA examination in June 2014 contained a diagnosis of lumbosacral strain. (See June 2014 Spine Disability Benefits Questionnaire (DBA). Therefore, element (1) for service connection has been satisfied. Regarding service connection element number two (2), evidence of in-service injury or disease, a July 1999 report reflects that the Veteran complained, in part, of back pain while working in the field while on IDT. The Veteran was noted to have C5-7 strain from his Kevlar helmet. An assessment with respect to the lumbar spine was not reported. The remainder of the Veteran's service treatment records are devoid of any clinical findings referable to the lumbar spine. In light of the Veteran's in-service complaints of back pain from having worked in the field in July 1999, the Board finds that element number two (2), evidence of an in-service injury, has been met. Thus, the crux of the claim hinges on service connection element number three (3), nexus to military service. There are three (3) VA opinions that are against this element of the claim. In VA opinions, dated in June 2014 and October 2015, a VA Nurse Practitioner (NP) collectively opined, after a review of the record, that the July 1999 service treatment record of complaints of back pain (October 2015 opinion) without any subsequent follow-up or treatment thereafter was reflective of treatment for acute/transitory periods of back pain without evidence of chronicity. In support of this conclusion, the VA NP noted that it was many years thereafter, in 2009, before a chronic low back disorder was reported. The VA NP bolstered her opinion by noting an absence of back problems or diagnosis when VA examined the Veteran in 2001 and 2005. The VA NP concluded that it was less likely than not that current lumbosacral strain was incurred in or caused by any claimed inservice injury, event, or illness. (See June 2014 and October 2015 VA Spine Disability Benefits Questionnaires). The Board finds the VA NP's October 2015 to be of high probative value in evaluating the claim of service connection for a low back disability because she included rationale that fully supported her opinion, to include the lack of low back complaints or diagnosis until approximately 2009, many years after service. Other evidence against the claim includes a July 2017 VA ARNP's opinion. After an entire review of the record, to include the above-cited service and post-service evidence, the VA ARNP provided the following conclusion: "There is no medical evidence of a chronic disability of the back due to, aggravated by or incurred during active duty or in LOD during training for reserves etc. Multiple repeated report of medical history (RMH) through discharge has no notation of a chronic back condition in any portion the spine. the veteran continued to be employed as a paramedic in the private sector and did sports, weightlifting etc. There is nothing to support an origin of a back condition, low, middle or cervical while involved in military activities. There is only two minor incidents noted occurring without trauma that is a typical experience of most humans and is only of an acute and transitory symptoms/nature. Medical knowledge reports 80% of the population will report a back pain symptoms occurring in the previous year. After his minor acute and transitory symptoms being reported there is no indication of continued problems. His problems are appearing in the private sector as noted in the history above. There is conjecture only of his helmet playing a part and jumping out of helicopters etc. but this is not a substantial factor or even a risk factor. Medical research notes back conditions are from peoples' natural development, postural, and inherent qualities and has no link to physical labor or activities except if there is acute onset with substantial trauma occurring-spine fracture etc. Volitional postural and other controllable factors not due to military activity is of a muscular nature due to posture, obesity, inactivity etc. This is no indication of a substantial back condition of any kind from active duty, training; etc. The medical evidence does support his current condition-upper back and neck mostly, would be due to postural factors- stooped posture, rounded shoulders etc. which are under the veteran's volitional control and would lead to his positional kyphosis as well as postural finding at this point as well. This has no link noted to his military service time or events." (See VA ARNP's July 2017 VA opinion). The VA ARNP's opinion is against the claim and is uncontroverted. In this case, the VA ARNP's July 2017 opinion examination constitutes competent and uncontroverted medical opinion that the Veteran's low back disability is not related to service. As this opinion was provided following review of the entire record, notably the service treatment records and examination of the Veteran, and included a rationale for the opinion provided, the Board affords this opinion a high degree of probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). By submitting a claim for service connection the Veteran has demonstrated his personal belief that his low back disability is related to service. However, as shown by the VA NP's and ARNP's opinions, his low back disability is more likely related to other factors, such as postural factors, and not his period of military service. Accordingly, the etiology of his low back is a complex medical question that is not within the Veteran's competence to opine upon. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). In sum, aside from a June 1999 complaint of low back pain, there is no competent and probative evidence of a chronic low back disability in in service or for many years thereafter. Moreover, the VA NP's and ARNP's uncontroverted medical opinions of record state that the currently diagnosed lumbosacral strain is not related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection for a low back disability is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence of record is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ii) Headaches The Veteran claims that he suffers from headaches which either had their onset during service, or if preexisting service, were aggravated beyond their natural progression therein. In this case, pursuant to his enlistment in the Army Reserves for a period of ACDUTRA, the Veteran underwent an enlistment examination in April 1993. At that time, a history of headaches was noted. His headaches were improved with the taking of aspirin. No pertinent disorder was shown on examination. In June 2002, the Veteran was seen for a migraine headache of two days' duration. No further treatment for headaches is indicated for many years. It is noted that examination in 2005 was negative for complaints of, or diagnosis of, headaches. A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304 (b). Accordingly, if no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). The United States Court of Appeals for Veterans Claims (Court) has held in Smith v. Shinseki that without previously established "veteran" status for a period of active duty for training, the presumption of sound condition is inapplicable. 24 Vet. App. 40, 44 (2010). In this case, the Veteran has been awarded service connection for tinnitus in conjunction with this period of service, thereby establishing his "veteran" status and the presumption of soundness for this period of ACDUTRA are also available here. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, the April 1993 service examination report strongly demonstrates that the Veteran had a history of headaches. Thus, there is a question of preexistence that must be resolved at the outset. Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). Both prongs must be proven in order to rebut the presumption. The Board finds that clear and unmistakable evidence has not been presented to show that the Veteran had a headache disability prior to service. Although he gave a history (italics added for emphasis) of headaches during an April 1993 enlistment examination for the Army Reserves for a period of ACDUTRA, there is no clear and unmistakable evidence that he was diagnosed or treated for headaches prior to ACDUTRA. The Board notes that lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). In a July 2017 opinion, a VA ARNP indicated, after a review of the entire record, that the Veteran had provided an inconsistent history with respect to the onset of his headaches. In this regard, according to the VA ARNP, the Veteran gave a history that varied from having had pre-service headaches, to self-diagnosed migraines during service, to having had headaches as a result of having to fly in Blackhawk aircraft and having to wear a Kevlar helmet, to having had tension and cluster-type headaches. (See VA ARNP's July 2017 opinion at pg. 3). Accordingly, the Board finds that the Veteran's headaches are not clearly a pre-existing condition, and that he is entitled to the presumption of soundness. Given the above, the Board's analysis must turn to the question of whether the Veteran currently suffers from headaches, and, if so, whether they began in or are otherwise due to his military service. In this regard, the Board finds that there is ample evidence that the Veteran currently suffers from headaches as noted by the above-cited VA NP in her June 2014, October 2015 and June 2016 opinions and VA ARNP in a July 2017 opinion. (See June 2014, October 2015, June 2016 and July 2017 VA opinions). Thus, the crux of the Veteran's claim hinges on whether there is evidence of a nexus of the Veteran's headaches to his period of military service. The Board finds that the preponderance of the evidence of record is against a nexus of the Veteran's headaches to military service and it will deny the claim. To the extent that the VA NP in her June 2014, October 2015 and June 2016 opinions found against the claim on the basis that the headaches had preexisted service and had not been aggravated therein, the Board finds these opinions to be inadequate to deny the claim. Indeed, it has been determined that there was no preexisting disorder, and thus aggravation is not the appropriate question at issue here. The only opinion of record that addresses the Veteran's claim for service connection for headaches on a direct service connection basis is a VA ARNP's July 2017 opinion, and it is against the claim. After a review of the entire record, the VA ARNP provided the following conclusion in July 2017: "There is no indication of a headache condition due to service or aggravated by service. The STR's only indicate minor episodes of headache and there is no history of profiles or even of a headache condition/disability occurring during his active duty service and on repeated RMH. His headaches have changed over time as well in their nature and presentation. There is no nexus showing that would afford a direct or secondary service connection for his headaches. The evidence notes possible headaches prior to service but there appears to be no headache condition/disability of a chronic nature at all during any active duty." (See VA ARNP's July 2017 opinion). In this case, the July 2017 VA ARNP's opinion constitutes competent and uncontroverted medical opinion that the Veteran's headaches are not related to service. As this opinion was provided following review of the claims and examination of the Veteran, and included a rationale for the opinion provided, the Board affords this opinion a high degree of probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). By submitting a claim for service connection the Veteran has demonstrated his personal belief that his headaches are related to service. However, as shown by the VA ARNP's uncontroverted opinion, there is no nexus showing that they are directly related to his period of military service. Accordingly, the etiology of his headaches are a complex medical question that is not within the Veteran's competence. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board assigns higher probative value to the opinion of the VA ARNP's July 2017 opinion. In sum, aside from a June 2002 complaint of headaches, there is no competent and probative evidence of headaches during service or for many years thereafter. Moreover, the VA ARNP's uncontroverted medical opinion of record states that the currently diagnosed headaches are not related to service. Accordingly, the preponderance of the evidence of record is against the claim, and service connection for headaches is denied. ORDER Service connection for a low back disability is denied. Service connection for headaches is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs