Citation Nr: 18106930 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-06 409A DATE: June 1, 2018 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for degenerative disc disease (DDD) of the cervical spine is granted. Entitlement to service connection for brain cancer, to include as due to an undiagnosed illness, is denied. Entitlement to service connection for migraines, to include as due to an undiagnosed illness and/or secondary to brain cancer, is denied. Entitlement to service connection for left leg numbness, to include as due to an undiagnosed illness and/or secondary to brain cancer, is denied. Entitlement to service connection for right leg numbness, to include as due to an undiagnosed illness and/or secondary to brain cancer, is denied. REMANDED Entitlement to service connection for right arm numbness, to include as due to an undiagnosed illness and/or secondary to brain cancer, is remanded. FINDINGS OF FACT 1. The most probative evidence of record shows the Veteran’s back disability is causally related to service. 2. The most probative evidence of record shows the Veteran’s cervical spine disability is causally related to service. 3. The Veteran’s brain cancer did not manifest in service and is unrelated to service. 4. The Veteran’s migraines did not manifest in service and is unrelated to service, 5. The Veteran’s bilateral leg numbness did not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for establishing entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for brain cancer, to include as due to an undiagnosed illness, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.317 (2017). 4. The criteria for service connection for migraines, to include as due to an undiagnosed illness and/or brain cancer, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310, 3.317 (2017). 5. The criteria for service connection for bilateral leg numbness, to include as due to an undiagnosed illness and/or brain cancer, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.310, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Air Force from May 1979 to May 1999, and additional service in the reserves from August 2002 to October 2009. 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a cervical spine disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). To establish a right to compensation for a present disability, a Veteran 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, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran seeks service connection for a back disability and a cervical spine disability contending that his current neck and back disabilities were caused by injuries he incurred while in service. Service treatment records show that the Veteran complained of neck stiffness in July 1985 and injured his back in March 1988 in which the Veteran was diagnosed with cervical strain and lumbar spasms, respectively. Post-service records show that the Veteran received a VA examination in June 2013 for his back disability where he reported injuring his lower back in 1995 while lifting pallets during active duty. He reported feeling a sharp pain, and was given treatment and placed on quarters. The Veteran reported that since then, he periodically has back aches, and that his pain became worse in 2006. After fully examining the Veteran, the examiner diagnosed the Veteran with lumbar strain finding that the Veteran’s back condition was not related to service. In so finding, the examiner noted that the Veteran’s back pain began in 2006 and that he did not relate his current back pain to his injury in 1988. The examiner further noted that the Veteran’s STRs do not reflect chronicity or continuity of back pain beginning in 1988; therefore, the condition is less likely than not related to service. In August 2014, the Veteran received a VA examination for his cervical spine disability in which the Veteran reported that he has pain and stiffness of his neck that occurs daily. He reported that he began to notice the pain and stiffness in 2006 when he was diagnosed with a brain tumor. The examiner noted range of motion findings showed forward flexion and extension were both limited to 15 degrees, and that the Veteran had pain on movement, tenderness, and muscle spasms which resulted in an abnormal gait or abnormal spinal contour. The examiner diagnosed the Veteran with degenerative arthritis of the spine finding that the Veteran’s cervical spine condition was not related to service. In support of her conclusion, the examiner noted that the Veteran had a one-time complaint of pain in the neck with radiation to the left shoulder in July 1985 while in service in which the Veteran was diagnosed with cervical strain. The Veteran received medication and had a follow-up appointment where it was noted that he was improving. The examiner noted that there was no continued symptomatology related to the Veteran’s neck while in service; and post-service, symptoms did not present until 2006. Therefore, the Veteran’s one-time cervical strain did not cause his current neck condition. Alternatively, the Veteran submitted an expert opinion from a board certified orthopedic surgeon who opined that the Veteran’s back and neck disabilities were causally related to service. In reviewing the Veteran’s claims file, the physician noted details surrounding the Veteran’s cervical strain and lumbar spasms that occurred during service. The physician explained that initial diagnoses such as the Veteran’s do not exclude the possibility of discogenic sources of pain, and that medical literature shows that work-related lifting can, and often does, produce disc injury. The physician further noted that the Veteran’s work during service involved frequent heavy lifting of machinery and parts. As a result, the physician concluded that it is at least as likely as not that the Veteran suffered a discogenic injury in service that has continued to degenerate. After reviewing the record and weighing the evidence both in support of and against the claim, the Board finds that the preponderance of evidence weighs in favor of the Veteran as to whether the Veteran’s back and cervical spine disabilities were incurred in, or related to, his injuries during active service. In evaluating the medical opinions discussed above, the Board has placed limited probative value on the June 2013 and August 2014 VA examinations for the following reasons. First, the examiner in the Veteran’s June 2013 examination of his back noted that the Veteran’s back pain began in 2006; however, this is contrary to the Veteran’s report in the examination that his back pain began in 1995 and that he has had back aches off and on. Additionally, the examiner relied on the Veteran’s failure to relate his back pain to his March 1988 back injury, and the absence of additional symptomatology to his back during service; however, this reliance is misplaced. As mentioned in the Veteran’s previous representative’s appellate brief, the determinative issue is “whether the Veteran’s current back condition is related to his military service.” The evidence shows that the Veteran sustained a back injury in 1988. During his examination with the June 2013 examiner, the Veteran reported injuring his back in 1995 and that he has had back aches since that time. This statement is evidence of continuity of symptoms which the Veteran is competent to report; and as such, should have been considered in the rendered opinion. Therefore, the Board finds the examination inadequate in this regard. The Board notes a second back examination from August 2014 is also of record; however, the examination does not address the relationship between the Veteran’s current back condition and his military service. Similarly, in the Veteran’s August 2014 neck examination, the examiner relied on the absence of additional in-service symptomatology and the Veteran’s report of symptom onset in 2006; however, the examiner did not provide a medical rationale to support her conclusion as to why these reasons would not lead to the Veteran’s current neck disability. In contrast, the expert physician noted a review of the Veteran’s claims file, with a detailed interview of the Veteran. The physician further referenced pertinent information from the Veteran’s in-service and post-service medical records, as well as lay statements of record. Further, the physician provided a detailed medical rationale supported with medical literature. As such, the Board finds this opinion to be the most probative evidence of record. Given the inadequacies of the VA examinations and the absence of any other evidence of record that is determinative of the Veteran’s current neck and back conditions and their relationship to service, the Board finds the preponderance of evidence weighs in favor of granting the Veteran’s claims. Accordingly, service connection for a back disability and neck disability is granted. 3. Entitlement to service connection for brain cancer, to include as due to an undiagnosed illness. With regard to the Veteran’s claim of service connection for brain cancer, the Board finds that service connection is not warranted as the evidence does not show that the Veteran’s brain cancer originated in service, was caused by service, nor is there evidence to support an undiagnosed illness. As mentioned previously, service connection requires an in-service event or injury, a current diagnosis, and a causal relationship between the two. In addition, service connection may also be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces 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, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117, 38 C.F.R. § 3.317 (2017). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). In this case, the Veteran contends that his brain cancer was caused by an undiagnosed illness or that his brain cancer was the result of being hit by a baseball while in service. Initially, the Board notes that the Veteran is a Persian Gulf War Veteran having served in Saudi Arabia; and, his in-service injury of being hit with a baseball is conceded as the Veteran’s STRs show this particular injury occurred in April 1983. A factual background of the evidence shows that the Veteran was diagnosed with a low-grade brain tumor in May 2006 which resulted in resection of the tumor. In June 2013, the Veteran received a VA examination to determine the etiology of his brain tumor. In a subsequent August 2013 medical opinion, the examiner found that the Veteran’s brain tumor was not related to service noting that there is no evidence of a brain tumor or symptoms or manifestations associated with the tumor in the Veteran’s STRs. The examiner further explained that the Veteran’s tumor is not due to an undiagnosed illness as his tumor was diagnosed as a glioma. The examiner noted that the diagnosed glioma is not associated with environmental hazards due to Gulf War undiagnosed illness, or a diagnosed illness with an unknown etiology. In response to the Veteran’s submission of medical literature suggesting that head trauma is a risk factor for gliomas and other brain tumors, the RO obtained a second medical opinion in August 2014. In the medical opinion, the examiner found that the Veteran’s brain tumor was not related to his injury with the baseball while in service. In doing so, the examiner referenced several authorities of medical literature to support her conclusion. Specifically, the examiner noted that epidemiological studies do not support a definitive connection between head injury and intracranial glioma. The examiner further noted that although there have been a few case reports in the literature linking head trauma to the subsequent development of brain tumors, these studies are not relevant to the Veteran’s case. The examiner explained that the criteria for the acceptance of a causal relationship between trauma and the onset of cerebral tumors has not been met in the Veteran as the Veteran’s head trauma was frontal in location, and there is no evidence of brain contusion or traumatized brain. The examiner further explained that the Veteran’s STRs indicate that, objectively, there was ecchymosis of the forehead and it was tender to touch; however, x-rays were negative resulting in an assessment of “soft tissue injury to forehead,” and “no treatment needed.” In addition, the Veteran’s tumor was not in direct continuity with the traumatized area; and in fact, no area of the Veteran’s brain was shown to be traumatized by the injury. As a result, the examiner concluded that it is less likely than not that the Veteran’s brain cancer was incurred in or caused by being hit with a baseball while in service. Considering the above and remaining evidence of record, the Board finds that service connection for brain cancer is not warranted. The Board also finds the VA medical opinions to be the most probative evidence of record as the opinions are credible, persuasive, and consistent with one another. Moreover, the August 2014 examiner provided a detailed medical rationale with numerous medical literature to support her position. Further, there is no other evidence of record that contradicts either examiner’s opinion. Therefore, the Board finds the preponderance of evidence weighs against the claim and the benefit of the doubt doctrine does not apply. Accordingly, the claim for service connection for brain cancer is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for migraine headaches to include as due to an undiagnosed illness and/or secondary to brain cancer. For the Veteran’s claim of migraine headaches, the Board has reviewed the evidence and finds that service connection is not warranted. In so finding, the Board notes that the Veteran’s STRs are silent for complaints, treatment, or a diagnosis of headaches. Additionally, in the Veteran’s June 2013 VA examination for headaches, the Veteran reported that he had “normal” headaches beginning in the 90’s, and that the pain was tolerable where he was able to continue his functional activity despite the headaches. However, he reported that in February 2006, he began to have a different type of headache which were markedly worse and were associated with numbness of his right arm. The Veteran reported that his headache pain is localized to the right side of the head, which lasts less than one day. The examiner diagnosed the Veteran with migraine headaches with a diagnosis date of 2006, and tension headaches with a diagnosis date in the 1990s and found that the Veteran’s headaches are not related to service. In support of his conclusion, the examiner explained that the Veteran has two different types of headaches, noting that the more severe type began in 2006 and are temporally associated with his brain tumor. Alternatively, the other type being less severe, began many years after service. The examiner further noted that although the Veteran sustained two head trauma incidents while in service, it is less likely the headaches were caused in service as the Veteran’s STRs show no complaints or treatment of headaches, and the Veteran’s headaches began many years after service. Additionally, the examiner found that the Veteran’s migraine headaches are not caused by an undiagnosed illness as the Veteran’s migraines have a partial etiology. Moreover, the examiner noted that medical literature does not support a causal relationship between migraine headaches and service in southwest Asia. Considering the above, the Board finds the examiner’s opinion probative as it is consistent with the evidence of record. As mentioned, the Veteran did not complain of headaches while in service, and he reported having “normal” headaches in the 90’s which did not limit his functional ability. In contrast, the Veteran noted that his headaches became more severe in 2006, and after presenting to his doctor and being referred to a neurosurgeon, he was diagnosed with a brain tumor. The Board also notes that the Veteran reported that his migraines occur to the right side of his head which is consistent with the Veteran’s April 2006 MRI which shows the Veteran’s tumor involved the posterior right temporal lobe. Given that the preponderance of evidence shows that the Veteran’s migraines are not related to service, but are related to his brain tumor, which the Board has denied service connection for in the decision herein; service connection is denied on a direct and secondary basis. Likewise, as the Veteran’s migraines have an etiology, and are not an undiagnosed illness due to the Veteran’s service in southwest Asia, service connection is also denied on this basis. 5. Entitlement to service connection for bilateral leg numbness, to include as due to an undiagnosed illness and/or secondary to brain cancer. With regard to the Veteran’s claims of service connection for bilateral leg numbness, the Board also declines to find that service connection is warranted for these conditions. In so finding, the Board notes that the Veteran’s STRs are silent for any complaints, treatment, or diagnoses relating to the Veteran’s legs. In the Veteran’s June 2013 and August 2014 examinations for his back, the examiners found no evidence of radiculopathy to the Veteran’s lower extremities. Further, in the Veteran’s June 2013 Gulf War Examination, the examiner found that the numbness of the Veteran’s extremities is a diagnosable illness with a known etiology caused by neurological deficits due to the Veteran’s diagnosed brain tumor. Thus, the examiner concluded that it is less likely than not caused by exposure events in southwest Asia. The Board notes that although the Veteran seeks service connection for bilateral leg numbness, there is no evidence of record, in-service or post-service, that shows complaints, treatment, or a diagnosis related to such. Therefore, as there is no other evidence to contradict the findings noted above, the Board finds the preponderance of evidence weighs against the Veteran’s claims. Accordingly, the Veteran’s claims for entitlement to service connection for bilateral leg numbness is denied on a direct and secondary basis, to include as due to an undiagnosed illness. REMANDED Entitlement to service connection for right arm numbness, to include as due to an undiagnosed illness and/or brain cancer. REASONS FOR REMAND In light of the Board’s decision herein to grant service connection for the Veteran’s cervical spine disability, the Board finds that further development is necessary prior to adjudicating the Veteran’s service connection claim for right arm numbness. Of record is a June 2013 medical opinion in which the examiner found that the Veteran’s right arm numbness was not related to service, but rather, that the Veteran’s numbness was caused by his brain tumor diagnosed in 2006. However, in the Veteran’s March 2006 cervical spine MRI, a clinical note shows the following statement: “neck pain; right arm radiculopathy.” The Veteran’s MRI showed mild central stenosis. This evidence seems to suggest that the Veteran’s right arm numbness may be caused by his cervical spine disability. The matter is REMANDED for the following action: 1. Obtain all of the Veteran’s outstanding VA treatment records, and any other medical evidence that may have come into existence or is identified since the time the Veteran’s claim was filed. All efforts to obtain these records must be documented in the Veteran’s claim file. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right arm numbness condition. The claims file must be made available to, and reviewed by the examiner. The examiner should provide an opinion as to the following: a). Whether it is at least as likely as not (50 percent probability or better) that the Veteran’s right arm numbness is etiologically related to the Veteran’s active service, to include the Veteran’s in-service right forearm injury. b). Whether it is at least as likely as not (50 percent probability or better) that the Veteran’s right arm numbness is proximately caused or aggravated by his service-connected cervical spine disability. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If the examiner determines that he or she is unable to provide the requested opinion without resort to speculation, the examiner must provide a reasoned explanation for such conclusion. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel