Citation Nr: 20006952 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-48 206 DATE: January 28, 2020 ORDER Entitlement to service connection for a neck/cervical spine disability is denied. Entitlement to service connection for a headache disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left shoulder disability is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), as secondary to service-connected disability, is remanded.   FINDINGS OF FACT 1. The earliest post-service evidence of a neck disability is not for more than nine years after the Veteran’s separation from service; he is less than credible as to continuity of symptoms since service. 2. The clinical records are unremarkable for a chronic headache disability, to include a finding that the Veteran’s medication for service-connected disability causes or aggravates a headache disability. 3. The most probative (competent and credible) evidence of record is against finding that the Veteran has a neck disability, headache disability, right hip disability, and/or left shoulder disability causally related to, or aggravated by, his service and/or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability due to, or aggravated by, service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 2. The criteria for service connection for a headache disability due to, or aggravated by, service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 3. The criteria for service connection for a right hip disability due to, or aggravated by, service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. 4. The criteria for service connection for a left shoulder disability due to, or aggravated by, service or service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 1. Entitlement to service connection for a neck disability The Veteran has alleged that service connection is warranted on a direct basis and also on a secondary basis. Initially, when he filed his claim for service connection in 2015, the Veteran asserted that he had a neck disability secondary to his service-connected right shoulder disability. A May 2016 VA examination report reflects that the Veteran had a history of a cervical strain and degenerative arthritis of the spine. Upon examination, he had a normal range of motion. The examiner found that medical literature does not support a clear causative mechanism between the Veteran’s right shoulder function and over-use type cervical injury. The examiner opined that while the Veteran’s right shoulder function was imperfect it was still within a functional range and is unlikely to cause or aggravate a cervical pathologic progress. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Moreover, the VA opinion noted above is against a finding that his service-connected right shoulder disability causes or affects his neck. Thus, service connection on a secondary basis is not warranted. The Veteran testified at the December 2019 Board hearing that when he was in service, he dove into a swimming pool and hit another body. He further testified that he has “always had a neck problem” from that point on. The Veteran’s service treatment records (STRs) reflect that in June 1980 he sought treatment for pain in the posterior neck for two days in duration. It was noted that the Veteran had been swimming and another man was thrown into the water and fell on him. He reported pain which is worse in the morning and after sleep. Upon examination, he had no edema, and no obvious deformities. A range of motion greater than 50 percent was noted to cause “great pain”. He was assessed with a neck strain and prescribed hot soaks. There are no further complaints in the remaining 20 years of service with regard to the neck. The Veteran was seen on more than 60 occasions since his one-time neck complaint for a variety of complaints including the shoulder, elbow, achilles, back, ankle, knee, rash, bronchitis, and sinuses, but there are no further complaints of the neck. The Board finds that if the Veteran had chronic neck complaints, it would have been reasonable for him to have reported it, and for it to have been noted in the STRs as his other complaints were. In other words, he obviously sought treatment for complaints, and those complaints were noted, so if he had complaints of the neck, such would reasonably be in the STRs. The claims file also includes Reports of Medical Examination which note a normal neck upon evaluation (see February 1985, August 1986, March 1988, April 1989, July 1994, September 2001 Reports). The Veteran separated from service in September 2001. There are no clinical records noting complaints of the neck for the next nine years. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A November 2010 private medical record notes that the Veteran was seen for a CT of the cervical spine. The reasons for the examination was noted to be “[motor vehicle accident neck pain].” The impression was degenerative changes, straightening of the cervical lordosis, no fracture. Another November 2010 record notes that several days earlier the Veteran had been a patient in a motor vehicle accident and suffered cervical whiplash. None of the 2010 records note chronic pain in service, or chronic pain since service. The Board finds that if the Veteran had chronic complaints due to a service injury, he would have reported such and it would have been noted in the record. A 2016 VA clinical record reflects that the Veteran had neck pain after his “wife pushed him and assaulted him.” Again, there is no mention of a service injury. (Records note that he fell on a bannister post on the right side of his head, hit his right jaw, broke a tooth, and that his wife was punching him and kicking him in July 2016.) March 2017 VA records note that the Veteran reported neck pain which was “acute” or “[less than] 6 months” in duration. It was noted that he had physical therapy for his neck after “the fall last year”. He was further noted to have cervicalgia. Based on the foregoing, the Board finds that any contention as to chronic complaints in service and/or since service are less than credible. In addition, the Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion that his current disabilities are related to the 1980 incident. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). There is no competent opinion that the Veteran’s strain in service may be causally related to his current neck disabilities; thus, a VA opinion on the issue of direct service connection is not warranted. In sum, the record reflects that the Veteran had a neck sprain in 1980, a normal neck upon several subsequent evaluations, to include at separation from service, and no complaints within a year of separation from service. Subsequently, he had neck complaints after a motor vehicle accident and an assault by his wife. In the absence of credible continuity of symptoms from service, and/or a competent nexus opinion relating a current disability to service, service connection is not warranted.   2. Entitlement to service connection for a headache disability The Veteran has given two theories as to the etiology of his headaches. Initially, in 2015, when he filed his claim, the Veteran asserted that he had a headache disability secondary to a right shoulder disability. A May 2016 VA examination report reflects the examiner’s opinion that it is less likely than not that the Veteran has a headache disability proximately due to or the result of his service-connected disability. The examiner noted that she had searched through the VA records and found no mention of a headache or migraine. The Board acknowledges that a lay person is competent to report a headache. However, in this Veteran’s case, not only are the post-service VA records negative for chronic headaches, but the Veteran actually denied having headaches on several occasions (e.g. October 2010, June 2011, January 2012, June 2012, January 2013, August 2015). Thus, the Board finds that the examiner’s finding of no disability is adequately supported by the record. However, even if the Veteran did have headaches, the examiner found no connection between headaches and the Veteran’s right shoulder disability. The examiner noted that tension headaches are caused by neck tightness, not shoulder issues. The examiner also noted that the Veteran had reported that his headache is from a traumatic brain injury. He reported that he had hit his head in 2005 (post service) and since then has had head pain daily. (Although the VA records did not note headaches prior to the VA examination, a 2011 private record noted headaches after a motor vehicle accident; the Board finds that the examiner’s rationale is supported by this record which notes a whiplash injury. The Board finds no prejudice to the Veteran in that the examiner did not consider the 2011 record.) The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Moreover, the VA opinion noted above is against a finding that his service-connected right shoulder disability causes or aggravates headaches. Although the examiner did not specifically use the term “aggravation”, the rationale supplied is indicative that there was no aggravation (especially given no finding of a current disability). Thus, service connection on a secondary basis is not warranted. In his 2017 VA Form 9, the Veteran asserted that his headaches are due to his military service. The Veteran testified at the December 2019 Board hearing that he believes that he has headaches due to the medication which he takes for his PTSD. (The Veteran’s May/June 2017 Disability Benefits Questionnaire (DBQ) for PTSD reflects that he had been on medication for his PTSD for four years.) He asserts that his psychiatrist told him that his headaches are related to his medication; however, the “the connection between what a physician said and the layman’s account of what he purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to constitute ‘medical’ evidence.” Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Veteran testified in 2019 that when he changed his medication, the headaches were not as severe but that he still has them four or five nights a week. The Veteran has not been shown to make such an etiology finding and there is no competent evidence of record to support such; thus, another VA opinion is not warranted. Moreover, the evidence does not support that the Veteran’s headaches are due to medication. To the contrary, they reflect headaches due to physical conditions. The Board also notes that the record reflects that he has been on PTSD medication since 2013 but does not reflect a headache disability between 2013 and 2017 thus, his contention that his medication was causing his headaches and that a change in medication, reduced their severity is unsupported and less than credible. The Veteran’s STRs reflect a severe headache with nausea and vomiting in May 1985; he was diagnosed with gastroenteritis. He was also noted to have a headache in November 1986 which was a frontal sinus headache. There are no complaints of chronic headaches in service. His 1986, 1994, 1991, and 2001 Reports of Medical History reflects that he denied frequent or severe headaches. The earliest post service evidence of a headache disability is more than nine years after separation from service. A January 2011 private record reflects that the Veteran reported that he had a whiplash injury approximately six weeks earlier and that he developed an occipital headache which has persisted since then. He was assessed with tension headaches. As noted above, a 2016 VA clinical record reflects that the Veteran reported that his wife had pushed him into a bannister causing him to hit his head in July 2016, and causing him to have a right sided headache. In sum, when initially seeking treatment for a headache disability, the Veteran has reported a post-service motor vehicle accident and a post-service assault by his wife as the causes. However, when seeking VA compensation, he has reported headaches as related to his service-connected right shoulder disability and his service-connected PTSD. (He has also reported a post service 2005 traumatic brain injury.) He is not competent to determine an etiology as secondary to a service-connected disability, the clinical evidence does not support a current chronic headache disability, and the clinical evidence supports that his post service headaches, when occurring, were due to post service injuries. The Board finds, that the evidence as a whole, is against a finding that the Veteran has a headache disability which is causally related to, or aggravated by, service and/or a service-connected disability. 3. Entitlement to service connection for a right hip disability In October 2015, when filing a claim for service connection, the Veteran contended that his right hip disability was secondary to his nonservice-connected left hip and his service-connected back disabilities. The Veteran testified at the 2019 Board hearing that he has a right hip disability due to wearing a brace on each knee and that the service-connected knees cause an altered gait which in turn has affected his right hip. However, the clinical record does not support such. For example, a January 2012 VA clinical record notes that the Veteran ambulated independently with a normal gait. In February 2012 when undergoing physical therapy, it was noted that the Veteran had decreased range of motion of the hips. A June 2012 VA clinical record and a January 2013 VA clinical record note that the Veteran ambulates independently with a normal gait but uses a cane for long distances. Thus, the record does not support the Veteran’s contention that he had an abnormal gait causing a right hip disability. An October 2013 private record notes that the Veteran did not have any hip pain with flexion and rotations; however, an October 2013 VA examination for peripheral neuropathy reflects that the Veteran had an antalgic gait with a cane due to his knees and back. In contrast, a June 8, 2015 VA clinical record notes that the Veteran had a gait with a normal base, step, and arm swing. His heel/toe/tandem walk was normal. A June 9, 2015 VA clinical record reflects that the Veteran had a poor range of motion in both hips. A June 15, 2015 record notes that the Veteran had pain with right hip flexion. Further June 2015 records note that the Veteran had a right hip iliopsoas abscess, and right groin pain exacerbated by right hip flexion. It was noted that the likely source of the Veteran’s infection was his chronic left 3rd toe osteomyelitis. (Subsequent records reflect it was a left iliopsoas; regardless, it does not warrant service connection even if it was on the right.) The Veteran is not in receipt of service connection for his left 3rd toe. An August 2015 VA clinical record reflects that the Veteran ambulated independently with a normal gait but uses cane for long distances, and wears bilateral rigid knee braces. A May 2016 VA examination report reflects that the Veteran reported to the examiner that he had a gradual onset of bilateral hip pain over the past five years. He was diagnosed with osteoarthritis. The examiner opined that the Veteran’s hip disability was less likely as not due to a service-connected disability. The examiner noted that the Veteran’s left knee function while imperfect is still within a functional range and is unlikely to cause or aggravate a hip disability. A June 2017 VA (DBQ) opinion reflects that it is less likely than not (less than 50% probability) that the Veteran has a right hip disability which is proximately due to or the result of the Veteran's service-connected condition. The examiner opined, in pertinent part, as follows: [medical] literature does not support a clear causative mechanism between left hip pathology/lumbar pathology and over use type right hip degenerative process. Moreover, veteran's residual left hip and lumbar function (strength, stability, range of motion, alignment, gait pattern), while imperfect is still within a functional range and is unlikely to cause or aggravate a right hip pathologic process. Based on the foregoing, service connection is not warranted on a secondary basis. Finally, the Board also notes that there is no competent and credible evidence of record that service connection is warranted on a direct incurrence basis. The evidence does not support continuity of symptoms, a chronic disability or injury in service, or arthritis manifesting to a compensable degree within a year of separation from service. 4. Entitlement to service connection for a left shoulder disability The Veteran testified at the 2019 Board hearing that he felt that his left shoulder disability was caused by overcompensating for a service-connected right shoulder disability. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. The Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of arthritis, trauma, age, and/or wear and tear. A May 2016 VA examination report reflects a diagnosis of left acromioclavicular joint osteoarthritis. The Veteran described a gradual onset of left shoulder pain over the past five years. The examiner found that it is less likely as not that the Veteran has a left shoulder disability related to his right shoulder disability. The examiner found that the medical literature does not support a clear causative mechanism between right shoulder pathology and over use type left shoulder injury. The examiner further found that the Veteran’s right shoulder function, while imperfect, is still within a functional range and is unlikely to cause or aggravate a left shoulder pathologic process. Based on the foregoing, service connection on a secondary basis is not warranted. In addition, there is no probative evidence that service connection for a left shoulder disability is warranted on a direct incurrence basis; there is no continuity of symptom since service, no positive nexus opinion, and no competent and credible evidence that his disability manifested to a compensable degree within a year of separation from service. Conclusion The Board finds that the preponderance of the evidence is against a finding that service connection is warranted for any of the above-claimed disabilities. Any contention of continuity of symptoms since service lacks probative value. Moreover, any opinion based on an unsupported and less than credible history would also lack probative value. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for OSA as secondary to service-connected disability The Veteran testified during his recent 2019 hearing before the Board that he believes his OSA stems from his PTSD. A June 2017 VA DBQ opinion indicates it is less likely than not that the Veteran’s OSA is proximately due to or the result of his service-connected condition. The examiner explained that PTSD causes flashbacks, bad dreams, and anxiety; however, it is a mental health condition and does not cause OSA. The examiner further explained that OSA is a physical problem of the upper airway of the throat area caused by the architecture of the upper airway and that PTSD does not cause structural changes of the upper airway or throat area. A supplemental opinion is still needed, however, concerning whether the Veteran’s PTSD alternatively aggravates his OSA. Claims predicated on secondary service connection require opinions on both causation and aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). And when VA obtains an opinion, it must ensure the opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This matter is REMANDED for the following action: Obtain a supplemental opinion to the one already offered in the June 2017 VA DBQ. If, as the prior examiner concluded, the Veteran’s service-connected PTSD did not cause his OSA, the examiner must additionally address whether alternatively it is as likely as not (50 percent or greater probability) that the Veteran’s service-connected PTSD instead aggravates his OSA. If the examiner finds that it is as likely as not that the Veteran’s PTSD aggravates his OSA, the examiner should also state the degree of aggravation. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.