Citation Nr: 19141306 Decision Date: 05/29/19 Archive Date: 05/29/19 DOCKET NO. 15-26 161 DATE: May 29, 2019 ORDER Entitlement to service connection for degenerative disc disease and degenerative joint disease of the cervical spine is granted. Entitlement to service connection for thrombocytopenia is granted. Entitlement to service connection for headache disability, secondary to degenerative disc disease and degenerative joint disease of the cervical spine, on a causation basis, is granted. Entitlement to service connection for cervical radiculopathy of the right upper extremity, secondary to degenerative disc disease and degenerative joint disease of the cervical spine, on a causation basis, is granted. REMANDED The application to reopen a claim of service connection for flat feet is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI), other than headache disability, is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative disc disease and degenerative joint disease of the cervical spine are related to service. 2. The evidence is at least at evenly balanced as to whether the Veteran’s thrombocytopenia began during active service. 3. The Veteran’s headache disability is caused by his degenerative disc disease and degenerative joint disease of the cervical spine. 4. The Veteran’s cervical radiculopathy of the right upper extremity is caused by his degenerative disc disease and degenerative joint disease of the cervical spine. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative disc disease and degenerative joint disease of the cervical spine are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for thrombocytopenia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for headache disability, as secondary to degenerative disc disease and degenerative joint disease of the cervical spine, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for cervical radiculopathy of the right upper extremity, as secondary to degenerative disc disease and degenerative joint disease of the cervical spine, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to February 2002. These matters come before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision. As for characterization of the issues on appeal, the Board points out that a claim of service connection for cervical spine disability (characterized as degenerative disc disease with bulging and mild radiculopathy) was denied in a March 2010 rating decision on the basis that the claimed disability did not have its onset in service and was not otherwise related to service. A statement from a servicemember (D.S.) who had served with the Veteran was subsequently received by VA in May 2010. This statement indicates that D.S. observed the Veteran experience neck pain in service. Hence, new and material evidence was received within a year of the March 2010 rating decision. The claim of service connection for cervical spine disability was again denied in the August 2014 rating decision, from which the current appeal originates. As new and material was received within a year of the March 2010 rating decision, that decision is not final as to the claim of service connection for cervical spine disability and the Veteran’s initial claim of service connection for cervical spine disability remains pending. 38 C.F.R. § 3.156 (b). Thus, the Board will adjudicate the Veteran’s cervical spine claim on a de novo basis. Also, the Board notes that the agency of original jurisdiction (AOJ) characterized the cervical spine and radiculopathy issues as the single issue of entitlement to service connection for “degenerative disc disease with bulging and mild radiculopathy, cervical spine.” As the Veteran’s medical records reflect that he experiences both cervical spine disability (degenerative disc disease and degenerative joint disease) and cervical radiculopathy of the right upper extremity, the Board has recharacterized the cervical spine appeal as including the separate issues of entitlement to service connection for degenerative disc disease and degenerative joint disease of the cervical spine and entitlement to service connection for cervical radiculopathy of the right upper extremity. Lastly, in the August 2014 rating decision, the AOJ denied an application to reopen a claim of service connection for flat feet and denied service connection for residuals of a head injury (headaches) and residuals of a head injury (TBI). The Veteran submitted a timely notice of disagreement with this decision and a statement of the case (SOC) was issued in April 2015. The SOC included the issues of entitlement to service connection for flat feet, residuals of a head injury (headaches), and residuals of a head injury (TBI). In June 2015, the Veteran submitted a substantive appeal (VA Form 9) on which he indicated that he was only appealing the issues of entitlement to service connection for cervical spine disability with mild radiculopathy and thrombocytopenia. Information contained in the Veterans Appeals Control and Locator System (VACOLS) indicates that the foot and head injury (headaches and TBI) appeals were closed as withdrawn by the Veteran. Therefore, the foot and head injury issues were not certified to the Board for appellate review (via a VA Form 8, Certification of Appeal). The Board points out, however, that following his submission of the initial June 2015 VA Form 9, the Veteran submitted a second VA Form 9 later in June 2015 on which he indicated that he wished to appeal all of the issues listed on the April 2015 SOC. Therefore, the Board finds that a timely substantive appeal pertaining to the foot and head injury (headaches and TBI) issues was submitted following the April 2015 SOC and that these issues are before the Board. See 38 U.S.C. § 7105 (b)(2); 38 C.F.R. §§ 19.35 (certification is used for administrative purposes and does not confer or deprive the Board of jurisdiction over an issue), 20.202, 20.302. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to, the result of, or aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for degenerative disc disease and degenerative joint disease of the cervical spine The Veteran contends that he has current cervical spine disability that is related to neck problems that he experienced in service following a motor vehicle accident. The Board finds, for the following reasons, that the Veteran has current diagnoses of degenerative disc disease and degenerative joint disease of the cervical spine and that these disabilities are related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The reports of VA cervical spine and neurological examinations dated in February 2010 show the Veteran has current diagnoses of degenerative disc disease and degenerative joint disease of the cervical spine. He contends that the cervical spine disability is related to neck problems that he experienced in service following a motor vehicle accident. Specifically, he has reported that although he was primarily treated for lower back problems following the accident, he also injured his neck in the accident and experienced neck pain in service. A service treatment record dated in April 1983 confirms that he was involved in a motor vehicle accident and that he reported neck pain following the accident. Also, in his May 2010 statement, D.S. reported that he had served with the Veteran and that during numerous hikes and physical training sessions in service, the Veteran complained of severe neck pain during and after hikes and runs. He often refused to go to sick call and would instead ice his neck after training exercises. The Veteran is competent to report neck symptoms (including pain) in service and D.S. is competent to report his observations of the Veteran’s symptoms in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, there is nothing to explicitly contradict his reports and his reports are consistent with the evidence of record and the circumstances of his service. Therefore, the Veteran’s reports of in-service neck symptoms are credible and in-service neck symptoms are conceded. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). As for whether the Veteran’s current cervical spine disability is related to his neck symptoms in service, there are conflicting medical opinions. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board may favor one medical opinion over another, provided an adequate statement of reasons or bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The examiner who conducted the February 2010 VA cervical spine examination opined that the Veteran’s cervical spine disability was likely (“at least as likely as not”) related to his injury during service. There was no further explanation or rationale provided for this opinion. The physician who conducted a May 2014 VA cervical spine examination opined that the Veteran’s cervical spine disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. He reasoned that despite numerous medical evaluations for back pain and other ailments, the Veteran’s service treatment records did not show any treatment for neck symptoms. After his motor vehicle accident in 1983, his neck examination appeared to be normal and there was no record of any neck complaints. Therefore, a neck condition was unlikely to have existed during service. The February 2010 opinion is of little, if any, probative value because it is based upon an inaccurate history. Specifically, although the examiner reasoned that there was no evidence of any neck problems in the Veteran’s service treatment records, his service treatment records include the April 1983 record of treatment following a motor vehicle accident, at which time he reported neck pain. Therefore, the February 2010 opinion is based on an inaccurate history and therefore of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Furthermore, the opinion does not take into account the competent and credible lay reports of neck pain in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). Although the examiner who provided the February 2010 opinion did not provide any detailed rationale for the opinion, the examiner nonetheless concluded based upon an examination of the Veteran, a review of his claims file, and consideration of his reported history, that his cervical spine disability was related to service. The February 2010 opinion is therefore entitled to some probative weight. See Monzingo, 26 Vet. App. at 106 (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In sum, the Veteran has been diagnosed as having degenerative disc disease and degenerative joint disease of the cervical spine and there is a probative medical opinion which indicates that the current cervical spine disability is related to service. There is no probative medical opinion contrary to this conclusion. Hence, the Board finds that the preponderance of the evidence is in favor of a conclusion that the current degenerative disc disease and degenerative joint disease of the cervical spine are related to service. Entitlement to service connection for these disabilities is, therefore, warranted. 2. Entitlement to service connection for thrombocytopenia The Veteran contends that he has current blood disorder that had its onset in service. The Board finds, for the following reasons, that the Veteran has a current diagnosis of thrombocytopenia and that the evidence is at least evenly balanced as to whether this disability began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a). The report of an April 2014 VA hematologic and lymphatic conditions examination shows the Veteran has a current diagnosis of thrombocytopenia. There is also evidence of blood disorder symptoms in service and evidence of continuous symptoms in the years since service, which indicates that the current thrombocytopenia was incurred in service. In this regard, service treatment records reflect that the Veteran was found to have a low blood platelet count (i.e. thrombocytopenia) on several occasions between March 1995 and October 2001. Moreover, his post-service medical records and lay statements indicate that his blood disorder symptoms have continued in the years since service. For instance, he reported in a July 2009 statement that his problem with low blood platelets began prior to his separation from service. The Veteran is competent to report continuous blood disorder symptoms in the years since service. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. Also, there no evidence that explicitly contradicts his reports and they are consistent with the evidence of record. Therefore, the Board finds that the reports of continuous blood disorder symptoms in the years since service are credible. The nurse practitioner who conducted the April 2014 VA examination opined that the Veteran’s blood disorder was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. However, this opinion is of minimal, if any, probative value because the examiner did not provide any rationale that specifically addresses why the Veteran’s thrombocytopenia was not related to service. Also, the examiner did not acknowledge or address the low blood platelet counts that were measured during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the evidence reflects that the Veteran experienced thrombocytopenia in service and that there have been continuous blood disorder symptoms in the years since service. He has also been diagnosed as having current thrombocytopenia. There is no adequate and probative medical opinion contrary to a conclusion that the current thrombocytopenia had its onset in service. In light of the above, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current thrombocytopenia had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed thrombocytopenia is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 3. Entitlement to service connection for headache disability and cervical radiculopathy of the right upper extremity, secondary to degenerative disc disease and degenerative joint disease of the cervical spine The Board finds, for the following reasons, that the Veteran experiences current headache disability, that he has a current diagnosis of cervical radiculopathy of the right upper extremity, and that these disabilities are caused by his degenerative disc disease and degenerative joint disease of the cervical spine. The Veteran’s medical records, including the reports of a February 2010 VA neurological examination and the May 2014 VA cervical spine examination, reflect that he reported radiating neck pain, tingling, and paresthesias/dysesthesias in the right upper extremity and that he has a current diagnosis of cervical radiculopathy. The nerves involved are the C5/C6 nerve roots (upper radicular group). Moreover, the report of a June 2014 VA headache examination shows the Veteran currently experiences constant daily headaches which are associated with sensitivity to sound and which reduce his productivity at work because they impair his concentration. Although there is no evidence of any specifically diagnosed headache disability during the claim period, the evidence of headache pain alone is sufficient in some circumstances to show the existence of current headache disability. See Saunders, 886 F.3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1110). Treatment records from Midwest Medicine Associates dated in August 2009 and September 2009 reveal that the Veteran reported that his neck pain and muscle tightness would occasionally cause headaches. The medical professional who conducted the September 2009 evaluation diagnosed the Veteran as having cephalgia and explained that his “headaches were probably directly related to the pain involving his neck.” There was no specific explanation or rationale provided for this opinion. The physician who conducted the June 2014 VA headache examination explained that the Veteran’s headaches “may be related to chronic neck pain with x-rays showing degenerative disc disease at C4-5 level.” There was no specific explanation or rationale provided for this opinion. While there are no clear and direct opinions that the Veteran’s right upper extremity neurological disability and headache disability are caused by his now service-connected cervical spine disability, his reports of neck pain and paresthesias/dysesthesias radiating to the right upper extremity and headaches triggered by neck pain, the findings by the May 2014 examiner that the right upper extremity symptoms were consistent with radiculopathy, the conclusions of the medical professionals who conducted the September 2009 evaluation and the May 2014 headache examination, and the diagnoses noted above in essence support the conclusion that his current headache disability and cervical radiculopathy of the right upper extremity are caused by his now service-connected cervical spine disability. There is no adequate and probative medical opinion contrary to this conclusion. With reasonable doubt resolved in favor of the Veteran, service connection for headache disability and cervical radiculopathy of the right upper extremity, secondary to now service-connected degenerative disc disease and degenerative joint disease of the cervical spine, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for residuals of a TBI, other than headache disability, is remanded. The Veteran contends that he experiences current residuals of a TBI that are related to head injuries that he sustained in service. Specifically, he contends that he suffered a head injury in the motor vehicle accident in April 1983 and that he was assaulted and struck in the head with a wooden object later in service. His service treatment records reflect that he sustained a small abrasion on his forehead in the April 1983 motor vehicle accident and that he was assaulted in December 1991 while getting out of his car. He also suffered a head injury in July 2000 when he was hit in the forehead by a tray and sustained a laceration. A VA TBI examination was conducted in June 2014 and the examiner initially noted that the Veteran was diagnosed as having a TBI in April 1983. The Veteran reported during the examination that he experienced fatigability, occasional tinnitus, and moodiness. The examiner opined that the Veteran’s claimed disability was not likely (“less likely than not”/“less than 50 percent probability”) incurred in or caused by service. He reasoned that the Veteran did experience head trauma in his April 1983 motor vehicle accident, but that there was no mention of any concussion or TBI in his service treatment records and no evidence of any aftercare or diagnostic testing for TBI. Also, the Veteran denied any cognitive deficits secondary to a concussion. The June 2014 examination is inadequate because the examination report appears to contain conflicting information as to whether the Veteran experienced a TBI in service. Specifically, the examiner initially noted that the Veteran was diagnosed as having a TBI in April 1983, but he later concluded that there was no evidence of any TBI in service. Moreover, the examiner did not comment on the significance of the Veteran’s December 1991 assault, his July 2000 head injury, or his reported fatigability, tinnitus, and moodiness at the time of the June 2014 examination. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for residuals of a TBI other than headache disability because no VA examiner has clearly and adequately opined whether the Veteran experiences any residuals of his head injuries in service. Therefore, he should be afforded a new VA TBI examination upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Kansas City Vista electronic records system and are dated to August 2014. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. The application to reopen a claim of service connection for flat feet is remanded. The Veteran has already been awarded service connection for bilateral lower extremity radiculopathy and bilateral plantar fasciitis. As the record currently stands, there is no evidence of any additional foot disability, to include flat feet. As additional treatment records are being sought upon remand which may document evidence of such disability, the application to reopen the claim of service connection for flat feet is being remanded, as well. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for residuals of a head injury and foot disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for residuals of a head injury and foot disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Kansas City Vista electronic records system for the period since August 2014; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a TBI examination by an appropriate clinician to determine the nature and etiology of any current residuals of a TBI. The examiner must opine whether any residuals of a TBI experienced by the Veteran since approximately August 2011 at least as likely as not (1) began during active service; or (2) is related to an in-service injury, event, or disease, including the head injuries documented in his service treatment records (i.e., when he was involved in a motor vehicle accident in April 1983, when he was assaulted in December 1991, and when he was hit in the head with a tray in July 2000). The examiner must provide reasons for each opinion given. In this regard, the examiner should acknowledge and comment on the Veteran’s reported fatigability, tinnitus, and moodiness during the June 2014 VA TBI examination. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.