Citation Nr: 20007150 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-31 446 DATE: January 28, 2020 ORDER Entitlement to service connection for cervical strain and associated residuals, to include spondylosis and degenerative disc disease (cervical spine condition), is granted. Entitlement to service connection for sinusitis is granted. Entitlement to service connection for allergies and associated residuals, to include chronic conjunctivitis (allergy condition), is granted. Entitlement to service connection for headaches is granted. FINDINGS OF FACT 1. The Veteran’s cervical spine condition is due to her active duty service. 2. It is at least as likely as not that the Veteran’s sinusitis is due to her allergy condition. 3. It is at least as likely as not that the Veteran’s allergy condition is due to her active duty service. 4. The Veteran’s headaches predated her active duty service. 5. The Veteran’s headaches have been aggravated by her active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the Veteran’s cervical spine condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303(a). 2. The criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303(a), 3.310(a). 3. The criteria for entitlement to service connection for the Veteran’s allergy condition have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303(a). 4. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303(a), 3.304(b), 3.306(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to October 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of July 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Following the rating decision on appeal, the Veteran timely filed her notice of disagreement (NOD) in March 2014. The RO issued a statement of the case (SOC) in April 2017 and the Veteran’s timely appeal to the Board followed in June 2017. The Veteran testified before the undersigned VLJ via videoconference in November 2019. A transcript of the hearing is of record. Service Connection Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. 1. Entitlement to service connection for cervical strain. The Veteran has consistently asserted that her cervical strain was incurred as the result of an injury sustained while treating a patient as part of her active duty service. See April 2012 VA 21-4138 at 1 (“My initial neck injury was when… I was taking care of a patient in the Dispensary”); see also March 2014 NOD at 2 (“I was treated for Cervical Sprain after preventing an intoxicated soldier from falling”); see also Transcript at 4 (“I was working the dispensary and I was taken [sic] care of a Veteran and I was breaking his fall off of the table… according to the school of training back then, if somebody was going to fall, you were to break their fall and that’s what I did”). The Veteran’s testimony is corroborated by her service treatment records (STR). See March 2014 STR at 6 (noting “[Veteran] returns for [follow-up] of neck pain beginning [4] days ago”). The Board therefore finds that the second Shedden factor has been met. The Veteran underwent a VA examination on this issue in June 2013. The VA examiner diagnosed the Veteran with cervical strain, spondylosis, and degenerative disc disease. See June 2013 VA Examination Report at 35-36. The Board therefore finds that the first Shedden factor has been met as well. However, the VA examiner opined that the Veteran’s “current cervical spine condition was not incurred in or caused by complaints of and treatment for bilateral cervical neck pain with spasms while on active duty[.]” See June 2013 VA Examination Report at 48. While the VA examiner noted additional subsequent neck injuries incurred after the Veteran’s active duty service, he did not expressly state that he considered such injuries a more likely cause of the Veteran’s cervical spine condition, nor did he explain the reasoning that might support such a conclusion. “[Most] of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight… if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board assigns the VA examiner’s conclusion on this point only minimal probative weight. The Veteran submitted a private medical opinion in support of her claim. See December 2019 Medical Treatment Records at 1 (describing the Veteran’s symptoms and treatment and opining that “[given] the time course of her symptoms it is most probable that her chronic pain condition is [sic] service-related injuries at that time”). While the private medical opinion does not discuss its reasoning with as much detail as might be wished, and notably omits discussion of the Veteran’s subsequent post-service neck injuries, the Board nonetheless assigns it moderate probative weight because it is based on opportunities to observe the Veteran over multiple years of treatment. See id. (noting that the Veteran has been treated “since 2016”). The Board therefore finds that the third Shedden factor has been met and that the assignment of service connection is warranted. 38 C.F.R. § 3.303(a). 2. Entitlement to service connection for sinusitis. The Veteran asserts that “I’ve been treated for sinusitis throughout my military career and presently.” See April 2012 VA 21-4138 at 1; see also March 2014 NOD (asserting that “[in October 1984] I complained of sore throat… my nasal passages were swollen and I was hoarse”); see also March 2014 STR at 15 (contemporaneous service treatment records corroborating same). The Board therefore finds that the second Shedden factor has been satisfied. The Veteran underwent a VA examination on this issue in June 2013. The VA examiner found no diagnosis of a sinus-related condition. See June 2013 VA Examination Report at 8. Furthermore, the VA examiner stated that “[there] is nothing found in the service treatment records regarding complaints or treatment of a sinus condition.” Id. at 17. As noted above, this is not consistent with the Veteran’s STR. See March 2014 STR at 15; see also id. (noting additional history of sore throat symptoms from July 1981). The Board therefore assigns the June 2013 VA examiner’s conclusions on this issue no probative weight. The Board notes that the Veteran’s entrance examination indicates that the Veteran either has, or has had previously, “ear, nose, or throat trouble.” See October 2012 STR at 6. As will be discussed at greater length below, Veterans are generally presumed to have been in sound condition when inducted unless conditions are “noted at entrance into service[.]” 38 C.F.R. § 3.304(b). However, the Board notes that the portion of the Veteran’s entrance examination reserved for clinical evaluation by a physician found the Veteran’s mouth and throat “normal.” See October 2012 STR at 3. Furthermore, the entrance examination notes that the Veteran previously underwent a tonsillectomy. Id. at 7. The examiner’s summary, while only partially legible, does not appear to reflect any notation of sinus conditions. The Board therefore considers it at least as likely as not that the “throat trouble” referenced by the Veteran in the entrance examination is her prior tonsillectomy and that there are no sinus conditions “noted at entrance into service” as contemplated by 38 C.F.R. § 3.304(b). The Veteran submitted a private medical opinion in support of her claim on this issue. This opinion is insufficient to support the third Shedden factor on its own, as the physician expressly disclaims the ability to render an opinion as to causation. See November 2019 Medical Treatment Records at 2 (providing that “I am not in a position to comment if these conditions are directly related to [the Veteran’s] service”); see also id. at 5 (providing that “I am not able to say that the symptoms are caused by her service”). However, the private physician clarified that “I am comfortable attesting that [the Veteran’s] chronic symptoms [including ‘sinus and allergy symptoms’] appear to have existed and been treated during her time in the service as well.” Id. at 5; see also id. at 2 (opining that “it appears that these are chronic problems that she has dealt with [for] most of her life, including her time in service”). The Board infers from the medical evidence of record that the symptoms of sinusitis and the Veteran’s allergy condition are overlapping. See id. (treating sinus and allergy conditions as intertwined); see also December 2019 Medical Treatment Records at 6 (consultation notes identifying “symptoms of allergies related to nose, eyes, postnasal drainage, cough and especially sinuses”) (emphasis added). As will be discussed further below, the Veteran has submitted an additional private medical opinion supporting the issue of service connection for her allergy condition. The Board therefore finds that there is sufficient evidence of record to support the conclusion that it is at least as likely as not that the Veteran’s sinusitis is due to her allergy condition. 38 U.S.C. § 5107(b). The assignment of service connection on a secondary basis is therefore warranted. 38 C.F.R. § 3.310(a). 3. Entitlement to service connection for the Veteran’s allergy condition. The Veteran has consistently asserted that “I was in basic training when I first had an allergic reaction[.]” See April 2012 VA 21-4138 at 1; see also March 2014 NOD at 1 (asserting that “my eyes were swollen to the point that they were closed during a field exercise”); see also Transcript at 5-6 (same); see also October 2012 STR at 76 (partially legible records of April 1979 noting “allergic/histamine [headache]) and 95 (partially legible records of May 1979 describing the Veteran’s treatment for “something in [her] eyes”). The Board therefore finds that the second Shedden factor has been satisfied. The Veteran underwent a VA examination on this issue in June 2013. The VA examiner diagnosed the Veteran with “mild chronic allergic conjunctivitis” of both eyes. See June 2013 VA Examination Report at 4. The Board therefore finds that the first Shedden factor has been satisfied as well. However, the VA examiner opined that there was “[no] mention of previous symptoms or diagnosis found on review of [the Veteran’s] C-file.” See June 2013 Medical Treatment Records at 17; see also June 2017 VA Medical Records at 28 (providing addendum opinion that the Veteran’s allergy residuals are less likely than not related to her active duty service). As previously noted, this is not consistent with the Veteran’s STR. See October 2012 STR at 76, 95. The Board therefore assigns the June 2013 VA examiner’s conclusions on this point only minimal probative weight. The Veteran submitted a private medical opinion in support of her claim on this issue. See November 2019 Medical Treatment Records at 2 (describing symptoms and treatment and opining that “[the Veteran’s] symptoms are probably related to her service”). While the private physician’s opinion is not as detailed in its explanation as might be desired, the Board nonetheless assigns it minimal probative weight because it is consistent with the other evidence of record. As the medical opinions for and against service connection are of equal probative weight on this issue, the Board finds that the third Shedden factor has been met. 38 U.S.C. § 5107(b). The assignment of service connection is therefore warranted. 38 C.F.R. § 3.303(a). 4. Entitlement to service connection for headaches. Generally, veterans are presumed to have been in sound condition when inducted, “except as to defects, infirmities, or disorders noted at entrance into service[.]” 38 C.F.R. § 3.304(b). The Veteran’s entrance examination notes “menstrual period headaches.” See October 2012 STR at 7. The Board therefore finds that the presumption of soundness has not attached as to this issue and that the Veteran’s headaches predated her active duty service. As previously discussed, service connection may be awarded on the basis of aggravation of a condition as well as by its causation. 38 C.F.R. § 3.303(a). A condition that predates active duty service “will be considered to have been aggravated by [such] service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” 38 C.F.R. § 3.306(a). The Veteran’s STR reflect multiple instances in which the functional impairment attributable to her headaches appears to have been increased by factors other than her menstrual cycle. See October 2012 STR at 76 (noting treatment for “allergic/histamine [headache]”); see also id. at 91 (noting treatment for headaches experienced subsequent to injury after falling on ice); see also March 2014 STR at 10 (noting headaches and dizziness during pregnancy resulting in loss of consciousness). The Board therefore concludes that it is at least as likely as not that the Veteran’s headaches increased in severity during her active duty service. See 38 C.F.R. § 3.306(b) (providing that the determination of whether a disability underwent an increase in severity during service is made “on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service”). The Board has found no specific finding in the record that this increase is due only to the natural progress of the condition, nor any evidence to support such a finding. The assignment of service connection on the basis of the presumption of aggravation is therefore warranted. 38 C.F.R. §§ 3.303(a), 3.304(b), 3.306(a). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.