Citation Nr: 20007003 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 08-16 930 DATE: January 28, 2020 ORDER Entitlement to service connection for headaches as secondary to service-connected allergic rhinitis is granted. Entitlement to service connection for a left ankle degenerative joint disease is granted. Entitlement to service connection for a left shoulder disorder is denied. FINDINGS OF FACT 1. The most probative evidence indicates the Veteran’s headaches are caused by service-connected allergic rhinitis. 2. The most probative evidence indicates the Veteran’s left ankle degenerative joint disease are related to active service. 3. The most probative evidence indicates the Veteran’s left shoulder disorder is not related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches as secondary to service-connected allergic rhinitis are met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018). 2. The criteria for entitlement to service connection for left ankle degenerative joint disease are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1985 to September 1985 and from February 1991 to June 1991, with additional service in the Marine Corps Reserve. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned during a Travel Board hearing in February 2019. A transcript of the hearing is associated with the claims file. These matters have an extensive procedural history going back to August 2007. The Board notes that a previous decision provided a thorough summary of the procedural history through September 2016. See BVA Decision, September 2016. Rather than repeat the summary herein, the Board incorporates it by reference. In September 2016, the Board remanded the claims currently at issue on appeal for further development. Specifically, the agency of original jurisdiction (AOJ) was asked to procure VA examinations and medical opinions discussing the Veteran’s service treatment records and medical records provided by a private physician, Dr. F.G. 38 U.S.C. § 5103A(d). The Veteran underwent VA examinations for his left shoulder, left ankle, and headache conditions in January 2018. The examiner considered the Veteran’s service medical records and the findings of Dr. F.G. when rendering his opinion. Therefore, the Board finds that the opinions are adequate for decisional purposes and the AOJ has substantially complied with the Board’s remand directives. The Board also notes that the September 2016 Board decision denied the issues of entitlement to service connection for a lower respiratory condition and entitlement to an initial compensable rating for allergic rhinitis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which initially affirmed the Board’s decision in May 2018. However, in March 2019, the Court withdrew its May 2018 memorandum decision, vacated the Board’s decision as to the above issues, and remanded the matters for readjudication. Those matters have been returned to the Board for review. However, the Veteran’s attorney has requested a videoconference hearing on those issues. As such, they will be addressed in a separate Board decision following the Veteran’s hearing, which will occur at a later date. The Veteran and his attorney will be notified in other correspondence of the hearing’s scheduled date, time, and location. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service Connection – Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury will also be service-connected. 38 C.F.R. § 3.310 (b). Every Veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. The Federal Circuit has distinguished between those cases in which the preexisting condition is noted upon entry into service, and cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. 38 U.S.C. § 1112; Wagner, 370 F.3d at 1345; Horn, 25 Vet. App. at 234. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner, 370 F.3d at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute notation of such condition. Id. at 240 (holding that “asthma” was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that “bunions” were noted at induction examination where orthopedic examiner diagnosed “bunions,” despite also stating “no problem [with] feet.”). Service connection for chronic diseases, including arthritis, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period after separation from service (in the case of arthritis, one year); or was noted in service with continuity of symptomatology since service. See 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for headaches, to include as secondary to service-connected allergic rhinitis First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Multiple VA and private medical records and VA and private medical opinions noted the diagnosis of headaches. Second, the Board finds that there is a related service-connected disability. See 38 C.F.R. § 3.310. The Veteran is service-connected for allergic rhinitis. Third, the Board finds that the most probative evidence of record supports a finding that the headaches are related to service-connected allergic rhinitis. See 38 C.F.R. § 3.310. March 2010 and April 2015 VA examination reports contained negative nexus opinions regarding direct service connection but did not address secondary service connection. A December 2015 private physician opinion did not address secondary service connection. An October 2013 VA opinion was obtained. The examiner reviewed the claims file and opined that it is less likely than not that the Veteran’s headaches are related to his sinus and respiratory disorders. She stated that his current headaches appear to be etiologically different from those reported in military service because the former were described as an achy pain involving the whole head, rather than the latter, which were located in the sinus area. The Veteran underwent a VA examination in January 2018. The Veteran reported headaches for the past five years, usually in the morning, for which he takes Tylenol. He stated that they usually last 2 or 3 hours, improve after taking medication, usually occur during the work week and are aggravated by stress. The examiner opined that it is less likely than not that the current headache condition is incurred in or caused by allergic rhinitis. He stated, among other things, that the Veteran’s current headache condition is a separate and distinct disease, and that the headaches during service were related to upper respiratory infections that resolved without sequela. The record reflects a medical opinion from Dr. M.F. dated March 2019. He reviewed the claims file and opined that it is as likely as not that the Veteran’s headaches are secondary to his service-connected allergic rhinitis. He explained that the Veteran had frequent headaches and was seen during service for the same type of headaches. He cited to imaging studies of the sinuses which showed left maxillary sinusitis with haziness in both frontal sinuses. The Board finds that each of these opinions is probative. They were each provided upon a review of the claims file and were supported by explanations that cited to evidence in the record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Thus, the evidence is in equipoise and service connection is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). 2. Entitlement to service connection for a left ankle disorder First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A 2008 bone scan showed degenerative changes. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Service treatment records from the Veteran’s first period of active duty show that, in May 1985, the Veteran reported shin splints hurting over the past two days and having a history of swelling of the ankles for the past two years. He further stated that he sprained his ankle one year ago. The clinician listed an impression of heel spur syndrome and shin splints. The Veteran underwent a physical examination as part of his release from active duty in mid-August 1985. His lower extremities were found to be normal and he did not report a history of ankle pain. However, six days later, he sought medical treatment for left ankle pain. He reported that his left ankle started hurting three days ago, but was not aware of any trauma to the joint. The clinician found no point tenderness or edema, good distal pulses, and full range of motion. He diagnosed achilles bursitis, recommended an ace wrap, and instructed the Veteran to return to the clinic as needed. STRs from the period in between the Veteran’s first period of active duty and second period of active duty contain relevant information. January 1986 and February 1987 reports of medical examination note normal lower extremities and did not document any symptoms related to a left ankle condition. The Veteran denied a history of swollen or painful joints, lameness, or foot trouble in the accompanying reports of medical history. The Veteran was examined in January 1988 and May 1988 and found to be physically qualified for duty, and for transfer to the individual ready reserve, during the respective examinations. In February 1991, the Veteran reported for active duty, underwent a physical examination, and was found to have normal lower extremities. He did not report any current symptoms of a left ankle condition. In June 1991, the Veteran signed a note indicating that he was examined within the past twelve months and was physically qualified for separation from active duty. Third, the Board finds that the evidence of record supports a finding that the left ankle degenerative disease is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Initially, the Board notes that although the Veteran reported a history of ankle pain lasting for the past year in May 1985, such a report is insufficient to overcome the presumption of sound condition. See Crowe, 7 Vet. App. at 245. The Veteran testified at the February 2019 Board hearing, that his ankles became painful after running during recruit training, and that after obtaining treatment a few times, he just worked through the pain. He stated that his ankle pain affects his ability to do his post-service civilian work for a school system. The Board finds this testimony competent and credible as ankle pain is capable of lay observation and the Veteran’s demeanor at the hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). VA treatment records show that the Veteran complained of an ache in the posterior ankles in September 2007. The clinician diagnosed achilles tendonitis and prescribed medication. The Veteran had a bone scan in October 2008. The physician found mildly increased activity in the shoulder girdles, hips, wrists, ankles, and great toes that “may suggest” degenerative joint disease. The Veteran underwent a VA examination in March 2010, which indicated there was no left ankle condition. The Board does not find this opinion probative as it ignored a 2008 bone scan that indicates degenerative changes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). The Veteran underwent another VA examination in March 2013. He described pain occurring on and off in his posterior ankle, but did not recall any specific injury. The examiner listed a diagnosis of achilles bursitis, and opined that it is less likely than not that it is related to military service. He noted that the Veteran was seen in service one time for ankle complaints and was diagnosed with achilles bursitis. However, he observed that the Veteran was in the reserves until June 1991 and did not report any further complaints or symptoms of a left ankle condition. The examiner concluded that there is no evidence of a chronic ongoing left ankle condition associated with military service. In December 2013, the examiner repeated his assertion that he could not opine without resorting to mere speculation and did not clarify whether the Veteran exhibited a current diagnosis of achilles bursitis. However, these opinions ignored the Veteran’s credible lay evidence of ongoing left ankle pain and are thus not probative. See Nieves-Rodriguez, 22 Vet. App. at 302-04. The Veteran underwent a further VA examination in April 2015. The examiner found no current symptoms associated with achilles bursitis and emphasized that his examination of the ankle was normal. He agreed with the findings of the March 2013 VA examiner and stated that the Veteran does not have any symptoms or findings of bursitis and that his current symptoms appear to be superficial and related to the skin. He noted that, although the VA treatment records contained a note of achilles tendonitis in 2007, he observed that there were no listed physical findings of such condition. The Board does not find this opinion probative as it ignored a 2008 bone scan that indicates degenerative changes. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Dr. F.G. opined that there is evidence in medical records contemporary to military service showing musculoskeletal pain involving the left ankle. He opined that the Veteran’s left ankle condition either began in service or is related to service. He indicated that the precise diagnosis of the Veteran’s condition is not supported by objective testing such as X-rays, magnetic resonance imaging (MRI) or computed tomography (CT) scans, but that a differential diagnosis would be polyarthralgia, rheumatoid arthritis or degenerative osteoarthritis. However, he did not provide further rationale to explain his conclusion that the current ankle condition began during military service or consider the Veteran’s reports of medical history in which he denied joint pain, and the military examinations in 1986, 1987, and 1991, which found normal lower extremities. The Board does not find this opinion probative as it does not address the Veteran’s credible lay evidence of ongoing left ankle pain. See Nieves-Rodriguez, 22 Vet. App. at 302-04. The Veteran underwent a VA examination in January 2018. The examiner diagnosed osteoarthritis of the bilateral ankles, as confirmed by diagnostic imaging testing. He opined that it is less likely than not that the condition had its onset during or is related to service. As rationale, he explained that the activity noted on the Veteran’s bone scan in 2008 indicates age-related degenerative changes. He cited to a medical article explaining that osteoarthritis is the most commonly encountered rheumatic disorder and is the major cause of reduced activity after fifty years of age. He also considered the findings of Dr. F.G., but observed that they were not supported by objective evidence to show degenerative joint disease, such as X-rays. The Board does not find this opinion probative as it does not address the Veteran’s credible lay evidence of ongoing left ankle pain and are thus not probative. See Nieves-Rodriguez, 22 Vet. App. at 302-04. The record reflects a medical opinion from Dr. M.F. dated March 2019. He indicated that he reviewed the claims file, and noted that the Veteran complained of left ankle pain in 1985. Dr. M.F. stated that the left ankle pain continued after service, ultimately leading to a diagnosis of achilles tendonitis, and that it is as likely as not that the Veteran’s left ankle issues began when he was in recruit training. The Board assigns this opinion significant probative value as is based upon review of the relevant evidence and addressed the Veteran’s credible lay evidence of ongoing left ankle pain. See Prejean, 13 Vet. App. at 448-9; Stefl, 21 Vet. App. at 124. Accordingly, the most probative evidence of record demonstrates that the left ankle degenerative joint disease is related to active service. 3. Entitlement to service connection for a left shoulder disorder First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In a March 2013 VA examination report, the examiner diagnosed degenerative joint disease of the acromioclavicular joint. Second, however, the Board finds that there was not in-service injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Service medical records show that the Veteran’s upper extremities were normal at his release from active duty examination in August 1985. Likewise, examinations in January 1986 and February 1987 found normal upper extremities, and the Veteran denied a history of painful or trick shoulder in the reports of medical history. The Veteran reported injuring his left shoulder a few months prior to active duty service in February 1991. However, a physical examination showed normal upper extremities and the Veteran was found physically qualified for duty. In June 1991, he signed a statement indicating that he was physically qualified for separation from active duty service. Additionally, in March 2013 and January 2018 VA examinations, the Veteran reported onset of left shoulder pain beginning around 2003. At the February 2019 Board hearing, the Veteran testified, among other things, that his left shoulder condition began hurting during physical activities in military service, including carrying a heavy weapon and a pack. He indicated that his shoulder is painful when he lies down and that it causes him to have trouble sleeping. The Board thus finds the Veteran’s lay statements of onset of left shoulder pain not credible, as there are conflicting lay statements of record post-service discharge. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, the second element of service connection is not met. Third, the Board finds that the evidence of record does not support a finding that a left shoulder disorder is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Initially, the Board observes that the presumption of soundness applies because the Veteran’s reports of a shoulder injury were not noted on the examination report within the meaning contemplated by the statute. See Crowe, 7 Vet. App. at 245. Although the Veteran reported a left shoulder injury occurring three weeks before active duty in February 1991, an examination showed normal upper extremities and the Veteran was found fit for duty. The record does not show any complaints, treatment, or diagnoses of a shoulder condition occurring in military service. The Board notes that the Veteran sought treatment for other conditions after February 1991, but did not report any left shoulder pain. See Caluza, 7 Vet. App. at 511. In September 2007, VA treatment records show that the Veteran reported pain in his shoulder and was prescribed medications. As previously noted, he underwent a bone scan in October 2008. The physician found mildly increased activity in the shoulder girdles, hips, wrists, ankles, and great toes that “may suggest” degenerative joint disease. The Veteran underwent a VA examination in March 2013. He reported that his shoulder started hurting about ten years ago, that it hurts with certain movements, and is aggravated by occasional overhead activity. The examiner diagnosed degenerative joint disease of the acromioclavicular joint and opined that it is less likely than not related to active service, reasoning that the Veteran reported injuring his left shoulder three weeks prior to active duty service, but had a normal examination and was found to be fit for duty. He found no other evidence of a shoulder condition in military service. Dr. F.G. opined that there is evidence in medical records contemporary to military service showing musculoskeletal pain involving the left shoulder. He stated that the Veteran’s left shoulder condition either began in service or is related to service. He indicated that the precise diagnosis of the Veteran’s condition is not supported by objective testing such as X-rays, MRI or CT scans, but that a differential diagnosis would be polyarthralgia, rheumatoid arthritis or degenerative osteoarthritis. However, he did not provide a rationale. The Veteran underwent a VA examination in January 2018. He reported bilateral shoulder pain for the past ten years with no injury and that it hurts to sleep on either side. The examiner diagnosed osteoarthritis of the acromioclavicular and glenohumeral joint bilaterally, and opined that it is less likely than not related to military service. He reasoned that the Veteran was found physically qualified for duty at sea after reporting a left shoulder injury prior to service and that service treatment records were silent for a chronic or recurrent left shoulder condition. He observed that the bone scan of October 2008 confirmed a pattern of degenerative arthritis that is age-related, rather than due to trauma, and cited a medical article to support his findings. He also considered the findings of Dr. F.G., but noted that they were not supported by objective evidence. As the examiner reviewed the claims file, cited to relevant medical evidence, and rendered a persuasive rationale, the Board finds his opinion to be worth significant probative weight. Nieves-Rodriguez, 22 Vet. App. at 304. In February 2019, the Veteran testified, among other things, that his left shoulder condition began hurting during physical activities in military service, including carrying a heavy weapon and a pack. He indicated that his shoulder is painful when he lies down and that it causes him to have trouble sleeping. Dr. M.F. stated that the Veteran was seen while on active duty for left shoulder pain that has continued to the present. He stated that the Veteran has been treated with analgesic, a sling and a tapering dose of prednisone, and that imaging studies have shown left shoulder bursitis with degenerative joint disease. He stated that it is as likely as not that the left shoulder problems originated in service and are service-connected. However, this opinion is based on the Veteran’s reports of continuous pain upon discharge, which the Board has found not credible. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, Associate 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.