Citation Nr: 21069529 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-15 455 DATE: November 18, 2021 ORDER Entitlement to service connection for head injury residuals is denied. Entitlement to service connection for lumbar spine disability is denied. Entitlement to service connection for cervical spine disability is denied. REMANDED Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and mood disorder, is remanded. FINDINGS OF FACT 1. The Veteran does not have head injury residuals that originated in service, within a year of service, or otherwise etiologically related to his active service. 2. The Veteran does not have a lumbar spine disability that originated in service, within a year of service, or otherwise etiologically related to his active service. 3. The Veteran does not have a cervical spine disability that originated in service, within a year of service, or otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for head injury residuals have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to July 1970. He died in October 2011. The appellant is the Veteran's widow and has been substituted as the claimant. See June 2018 Board Decision. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2009 (head injury, lumbar spine, bilateral knee and psychiatric disorder) and March 2010 (cervical spine and right shoulder) rating decisions by a Department of Veterans Affairs Regional Office (RO). In June 2018, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations. The Board notes that the requested VA examinations have been obtained and associated with the claims file. Accordingly, with regard to the issues decided below, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Head Injury Residuals, Lumbar Spine, Cervical Spine Disabilities The Veteran seeks entitlement to service connection for head injury residuals, and lumbar spine and cervical spine disabilities. His contentions for these disabilities are the same. Specifically, he asserts that he developed the above-mentioned conditions as a result of becoming trapped under a pole or log during basic training, and as a result of two falls sustained during combat operations in Vietnam. See June 2009 VA Form 21-4138, Statement in Support of Claim, and October 2009 Claim. As the theories of entitlement and the evidence related to these claims are substantially the same, they will be address together. Initially, as noted in the June 2018 Board Decision, the July 1970 separation examination is incomplete as it does not include a Report of Medical History section. When service records are incomplete the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The evidence of record includes a December 1969 STR showing the Veteran reported treatment the previous November for a 2-inch abrasion on his posterior/superior scalp. His prognosis was noted as "good." Another December 1969 STR noted that a prior November 1969 skull X-ray was within normal limits. His July 1970 separation examination noted a scar on the left arm. A clinical evaluation did not note any other abnormality including any spine, upper extremity, lower extremity or psychiatric disorder. The separation examination also indicated "none" for any significant or interval history, defects or diagnoses. Post-service evidence includes a February 2000 private medical record noting an intravenous pyelogram X-ray study revealing L4-L5 and L5-S1 degenerative disc disease (DDD). See Private Treatment Records Received May 2009. In February 2008, the Veteran reported morning stiffness in his neck lasting 2 to 3 hours. The soft tissues were found unremarkable. A cervical spine X-ray study at that time revealed mild narrowing of the C5-C6 disc space, extremely minimal subluxation at C4-C5, and mild degenerative changes in the articulating facet joint of C4-C5. See VA Treatment Records Received June 2020. A March 2008 cervical spine X-ray study revealed minimal motion at the C4-C5 disc space on flexion and extension. Mild to moderate degenerative changes were noted at the 20 facet joints of C4-C5 with minimal osteophytes present at the inferior aspect of the articulating facet joints. See VA Treatment Records Received December 2009. A July 2008 VA medical record noted a past medical history for a 1984 laminectomy with occasional back pain. See VA Treatment Records Received June 2020. In June 2009, the Veteran reported that while on active duty in Okinawa, he sustained a head injury resulting in unconsciousness and cuts necessitating stitches, and that he sustained two falls while in Vietnam. He also reported becoming pinned to the ground while trying to lift a 500 pound pipe during bootcamp in 1969, and that he was treated with an arm sling for a week. Approximately one month prior to his separation from service, he reported developing tingling sensations down his left leg, with symptoms continuing following separation from service. Approximately 6 months following separation from service, he reported receiving chiropractor care but that his pain continued. In 1978, he stated that an X-ray study revealed lumbar spine symptoms related to a disc in his lower back, and that he underwent surgery in 1984 after his disc ruptured. The Veteran sustained a fall in October 2009. An X-ray study of the back revealed a possible compression fracture on the AP view, and possible scoliosis on the lateral view. Another October 2009 X-ray study revealed scoliosis convex to the right, multilevel DDD and spondylosis from L2-L3 through L5-S1. See VA Treatment Records Received June 2020. In October 2009, the Veteran submitted letters from his brother and brother-in-law noting lumbar spine treatment in approximately 1979/1980, and that he underwent surgery for a ruptured disc in 1984. As noted above, this case was remanded in June 2018 to obtain VA medical opinions. With regard to the lumbar and cervical spine, in a June 2020 VA examination report, the examiner opined that it was "less likely than not (less than 50% probability)" that the lumbar and cervical spine disabilities were etiologically related to service. In support of this opinion, the examiner noted that the STRs did not show clinical notes regarding a metal pipe injury in January 1969. With regard to the Veteran's reports of having sustained two falls during service, the examiner noted a June 1969 record finding the Veteran physically qualified for full duty, although the examiner also noted a December 1969 STR concerning a head contusion and abrasion. However, the record was found absent of evidence documenting ongoing chronic conditions affecting the lumbar or cervical spine. The examiner further relied on the July 1970 separation examination which, although incomplete, stated "none" for defects or diagnoses, and which the Veteran had certified that he had notified the clinician of all defects, illnesses and injuries. The examiner further relied on post-service records from March 1997 to February 2000 which were negative for back complaints. Accordingly, the examiner concluded that if any in-service injuries had been anything more than acute and/or self-limiting, that the separation examination would have noted them in the section reserved for identifying defects and diagnoses. Furthermore, with regard to the Veteran's report of undergoing surgery in 1984 for a ruptured disc, the examiner concluded that it would be less likely that any in-service injury would have caused a ruptured disc approximately 15 years after the fact, or any DDD or DJD years later. In support of this conclusion, the examiner pointed to X-ray studies for both the lumbar and cervical spine that did not mention any traumatic arthritis findings. Therefore, even in consideration of the lay statements, the examiner found it less likely than not that any lumbar or cervical spine disability was due to or related to being trapped under a heavy metal pipe or due to falls sustained during combat. Lastly, with regard to any head injury residuals, in an August 2020 VA examination report, the examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran had a head injury residual that was etiologically related to service. The examiner noted a December 1969 STR showing an abrasion with apparent laceration to the posterior scalp requiring sutures. However, the examiner further noted that the separation examination did not mention any scars to the posterior scalp and records concerning any scar to that area were found. Additionally, the examiner noted no evidence of a traumatic brain injury (TBI) or concussion during service, and that the December 1969 STR made no mention of any neurological symptoms or diagnosis for a TBI or concussion. Lastly, the examiner noted no STRs describing any injury related to the reported metal pipe incident or falls during service, or in-service complaints of chronic headaches. As such, insufficient evidence was found to suggest the presence of any TBI during service. Following separation from service, the only complaint of a headache was noted to be related to taking medication for elbow pain. After a review of the evidence of record, the Board finds that entitlement to service connection for head injury residuals, or lumbar spine or cervical spine disabilities is not warranted. In this regard, the Board finds the VA examination reports the most probative evidence of record. Turning to the claim for head injury residuals, in the August 2020 VA examination report, the examiner provided a negative nexus opinion based on the fact that, even if the Veteran had sustained a head injury during service, that there was no evidence of any residual symptoms either during or after service. The only possible symptom found by the examiner was a reported headache which was related to NSAID medication taken for elbow pain. The Board finds the August 2020 VA examination the most probative evidence of record. The examiner considered the evidence of record including the lay statements. However, based on a review of that evidence, the examiner found that the evidence did not support a finding of any head injury residuals related to service. The Board finds the rationale provided by the examiner to be thorough and most persuasive. Importantly, neither the Veteran nor the appellant has identified any residual head injury condition. Accordingly, the Board finds the examiner's medical opinion is supported by the evidence of record, and there is no competent evidence to the contrary. Turning to the lumbar and cervical spine disabilities, the Board finds the June 2020 negative nexus opinions the most probative evidence of record. The examiner opined that it was "less likely than not" that the Veteran had a lumbar or cervical spine disability etiologically related to service. This opinion was based, largely in part, on a finding that the STRs did not support a finding of a lumbar or cervical spine condition during service. In this regard, the examiner recognized the Veteran's reports of being pinned under a pipe or pole as well as his reports of having fallen while in Vietnam. However, the examiner noted an absence of any evidence of any ongoing chronic conditions based on subsequent STRs including a June 1969 STR finding the Veteran qualified for full duty, and his July 1970 separation examination which did not note any current defects or diagnoses. While the Board does recognize that the separation examination is missing the Report of Medical History, the Board finds persuasive the examiner's conclusion that had there been an in-service injury that had been anything more than acute or self-limiting, that the section of the separation examination used for listing such conditions would have noted them. The Board further finds persuasive the examiner's conclusion that had there been any in-service lumbar spine injury, that such would not have caused a ruptured disc approximately 15 years after that injury. Therefore, even if one were to consider the Veteran's lay statements that he underwent a laminectomy in 1984 to treat a ruptured disc, that such would not be etiologically related to any in-service injury 15 years prior. Accordingly, with regard to the service connection claims for head injury residuals, lumbar and cervical spine disabilities, the Board finds the nexus opinions contained in the VA examination reports most probative to the inquiries on appeal. To the extent the Veteran or the appellant may be competent to opine as to medical etiology, the Board finds that the lay assertions in the present case are outweighed by the VA medical examiner's opinions, who determined that the there was no nexus between any head injury residuals, lumbar or cervical spine disabilities and service. The examiners have training, knowledge, and expertise on which they relied to form their opinions, and they provided persuasive rationales. Importantly, with regard to these claims on appeal, there is no medical evidence to the contrary. Thus, with regard to these claims, the Board finds that the third Shedden requirement has not been met. The benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claims for service connection for head injury residuals, lumbar and cervical spine disabilities. The claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). REASONS FOR REMAND 1. Right Shoulder and Bilateral Knee Disabilities As noted above, this case was remanded in June 2018 to obtain VA medical opinions. In this regard, the Board notes that the Veteran reported sustaining two falls during combat in Vietnam. As he was a combat veteran, the Board found that the circumstances of his service were consistent with his report of injury, and, thus, determined that an in-service injury had been established. A right shoulder VA examination was obtained in August 2020. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran had a right shoulder disability that was etiologically related to service. In support of this opinion, the examiner stated that no falls were documented as claimed, and that no in-service injury of significance was found. The examiner also noted that the separation examination was negative for symptoms, signs or diagnosis for a shoulder condition. Instead, the examiner concluded that the DJD appeared related to overuse in consideration of a life of manual labor and carpentry. Additionally, the examiner noted normal X-ray studies between 2006 and 2008 and stated that there was too long a gap between separation from service and the right shoulder condition for there to be any plausible nexus to service. Additionally, a VA bilateral knee examination was also obtained August 2020. The examiner opined that it was "less likely than not (less than 50 percent probability)" that the Veteran had a bilateral knee disability that was etiologically related to service. The negative nexus opinion was similarly based on a finding that no falls were documented as claimed, and that no in-service injury of significance was found. The examiner also noted that the separation examination was negative for symptoms, signs or diagnosis for a knee condition. Instead, the examiner concluded that the degenerative joint disease (DJD) appeared related to overuse in consideration of a life of manual labor and carpentry. Additionally, the examiner noted normal X-ray studies between 2006 and 2008 which was found too long a gap between separation from service and the bilateral knee conditions for there to be any plausible nexus to service. The Board finds the August 2020 VA examination reports inadequate. As noted above, based on the Veteran's combat status, his reported in-service falls have been conceded. In this regard, the Board notes the provisions of 38 U.S.C. § 1154(b) which provides a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat. See Colette v. Brown, 82 F.3d 389 (1996); VAOPGCPREC 12-99. Generally, VA will accept as true a combat Veteran's report of injury or disease in service, as long as the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. As such, the examiner's negative nexus opinions are based, in part, on inaccurate factual predicates. The Board also finds inadequate the conclusions that the claimed disabilities appeared related to overuse in consideration of a life of manual labor and carpentry. In this regard, speculative language such as "appeared related" does not create an adequate nexus for the purposes of establishing service connection, as it does little more than suggest a possibility of a relationship. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Accordingly, further VA medical opinions are necessary to adequately adjudicate these issues on appeal. 2. Acquired Psychiatric Disorder Following the June 2018 Board Remand, a VA examination was obtained in July 2020. The examiner opined that it was "less likely than not (less than 50% probability)" the Veteran had a psychiatric disorder that was etiologically related to service. In support of this opinion, the examiner noted that he endorsed experiencing depression since adolescence, and that he had attempted suicide prior to his enlistment. The examiner additionally opined that it was "less likely than not" that he had a psychiatric disorder that was proximately due to or the result of a service-connected disability. In support of this opinion, the examiner noted that the STRs were absent any mental health treatment, and that he had not pursued mental health treatment within the "conceded post discharge period." It was further noted that psychiatric symptoms reportedly began prior to service and, per the May 2009 VA examination, the Veteran reported having experienced depression since adolescence and that he had attempted suicide following the break-up of his first marriage prior to service. Therefore, the examiner found that the Veteran's depression pre-existed service. In addition, the examiner stated that "[g]iven that depression pre-existed, it is opined that it is less likely than not that Veteran's depression was the result or proximately due to his SC bilateral tinnitus. The Board finds the VA examination report inadequate. First, a review of the December 1968 enlistment examination shows that a psychiatric evaluation was noted as normal, and the Veteran denied having any depression or excessive worry, nightmares or frequent trouble sleeping. In general, a veteran is considered to have been in sound condition when examined and accepted for service, except as to defects, infirmities, or disorders noted on his entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Second, a review of the above-mentioned May 2009 VA examination report shows the Veteran reported in-service stressors including a friendly fire incident in which his unit became pinned down overnight, having comrades killed in the same bunker as a result of friendly fire, and having to carry a fellow Marine who was fatally wounded on patrol. He also reported that memories of Vietnam caused sadness and distress. The examiner noted chronic symptoms since adolescence as the Veteran reported experiencing depression and a suicide attempt prior to service. He was diagnosed with a mood disorder with Axis III diagnoses for several medical conditions including arthritis. The examiner noted that while some PTSD symptoms were present, that the full DSM-IV criteria were not met. No nexus opinion was provided. A June 2011 VA mental health record also shows the Veteran reported the same stressors during service. In this regard, he reported that his unit was evacuating an area after an ordered pullout, but that some of his unit was sent back to assist with the evacuation during which they ran into an unrecognized friendly Army unit on a hill that began firing on them. As a result, he reported that they returned fire. At that time, he reported that the enemy attacked, and they sustained many casualties. He also expressed anger towards his leaders who were young Lieutenants with no experience and who would not listen to them. He also reported seeing a friend who had his head blown off and that he thinks of that image most days. His spouse reported that he constantly checked doors and windows at home, and that she was afraid to have their grandchildren over due to weapons placed throughout the home. Other symptoms reported including avoidance, withdraw from family and friends, psychomotor agitation while asleep and nightmares, irritability, anger, anxiety, being easily agitated, and feeling hopeless and sadness with depressed mood. The Veteran was diagnosed with chronic PTSD and depression. Therefore, following the May 2009 VA examination, a VA medical record noted a diagnosis for chronic PTSD based on reported in-service stressors. The Board further notes that the May 2009 VA examiner also considered the Veteran's PTSD-related symptoms according to the standards of the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). However, the standards of DSM-5 apply to this case as it was certified to the Board in May 2016. See 80 Fed. Reg. 14308 (Mar. 19, 2015) (adopting DSM-5 effective March 19, 2015 which applies to claims certified for appeal to the Board after August 4, 2014). In this regard, the July 2020 VA examination report does not reflect that the examiner provided any diagnosis based on the evidence of record, including the reported in-service stressors, which have been conceded based on his status as a combat veteran. If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor or injury is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor or injury. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(1). This examination report, therefore, is returned for completion in accordance with DSM-5 standards and in consideration of the conceded in-service combat stressors. The matters are REMANDED for the following action: 1. Obtain a VA examination report by an appropriate examiner to determine the nature and etiology of any diagnosed right shoulder and/or bilateral knee disability. The examiner should provide the following opinions: (a) Is it at least as likely as not (an approximate balance of evidence) that the Veteran had a diagnosed right shoulder and/or bilateral knee disability that was etiologically related to his period of service? The examiner is advised that based on the Veteran's status as a combat veteran, his reported falls during his service in Vietnam are conceded. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 2. Then, obtain a VA examination from an appropriate examiner. All necessary special studies or tests should be accomplished. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. Specifically, state whether each criterion for a diagnosis of PTSD is met. Otherwise, provide a diagnosis for any acquired psychiatric disorder. The examiner is advised that based on the Veteran's status as a combat veteran, his reported in-service combat related stressors are conceded. (b) If a diagnosis of PTSD is appropriate, identify each stressor event upon which the diagnosis is based. (c) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (an approximate balance of evidence) that each such psychiatric disability was caused by active-duty service. (d) Additionally, opine as to whether it is at least as likely as not (an approximate balance of evidence) that any diagnosed psychiatric disorder was caused or aggravated by a service-connected disability. Please explain why or why not. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.