Citation Nr: 21005921 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-11 929 DATE: February 2, 2021 ORDER Entitlement to service connection for a disability of the cervical spine is denied. Entitlement to service connection for a disability manifested by headaches is granted. REMANDED Entitlement to service connection for a claimed disability of the left wrist is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a current disability of the cervical spine had its initial onset during active duty service or is otherwise related to any in-service disease, injury, or event. 2. The evidence is approximately evenly balanced as to whether a current disability manifested by headaches is proximately due to, or the result of, the Veteran’s service-connected anxiety disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability of the cervical spine have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a disability manifested by headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May to September of 1974 with several additional periods of service in the Army Reserves. This matter initially came to the Board from a June 2012 decision of the Agency of Original Jurisdiction (AOJ). In January 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board denied these claims in February 2018. With respect to the issues listed above, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for both parties later filed a Joint Motion for Remand (JMR), in which they agreed that the Board decision erred because, according to the parties, the Board failed to explain its reasons sufficiently. By granting the JMR, the Court vacated the February 2018 Board decision and remanded the three issues back to the Board. To help remedy the problems identified in the JMR, the Board remanded this case for further development in February 2020. Service Connection Establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection, “basically... means that... a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces... This may be accomplished by affirmatively showing inception or aggravation during service...” 38 C.F.R. § 3.303(a). Service connection is warranted for a disease first diagnosed after the claimant’s discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veterans may also receive compensation for a disability which is proximately due to, or the result of, a service-connected disability or for a nonservice-connected disability which is aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). With respect to both of the claims addressed today, the Veteran has suggested the relevant disabilities were caused by an injury she experienced during a period of Active Duty for Training (ACDUTRA). According to 38 U.S.C. §§ 101(1), 101(23) and 101(24), status as a “veteran” for the purposes of the compensation statutes depends on the occurrence of a disabling disease or injury during a period of ACDUTRA. For a claimant whose claim is based on a period of ACDUTRA, there must be evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). In general, the presumptions of soundness, aggravation, and presumptive service connection for chronic disease do not apply to periods of ACDUTRA unless “veteran” status is attained for the relevant period. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Service Connection for a Cervical Spine Disability The Veteran has been diagnosed with degenerative arthritis of the cervical spine and cervical spondylosis. She attributes this disability to an injury she sustained in November 1993, during a period of ACDUTRA. This injury is documented in her service treatment records. But the earliest medical evidence of mild degenerative changes in the cervical spine is a radiology report from before this accident, dated January 1991. According to a March 1991 progress note, the Veteran was experiencing pain in her middle and upper back. An x-ray report, also from March 1991, indicated “minimal degenerative change” of the thoracic spine. Emergency Room records after the November 1993 accident indicate a contusion of the scalp. X-rays were negative and the Veteran was given Tylenol. The physician who treated the Veteran’s head injury in and her unit commander jointly prepared Form DA 2173 (“Statement of Medical Examination and Duty Status”), which describes the circumstances of the injury. According to the part of the form completed by the physician, the Veteran suffered a contusion of the scalp, without loss of consciousness, when she was struck in the head with a metal container. The “Details of Accident” narrative completed by the unit commander indicates that the Veteran was picking up a “merimite container” with both hands to put it away. When she lifted the container, “the flap flew open and hit her on top of [the] head. When she put [the] container down the flap hit her in the face. Soldier noticed a bump on her head and sat down for a while. She notified her supervisor that she felt some numbness on her head.” During the January 2017 hearing, the Veteran testified that she lost consciousness after the accident and that her coworkers brought her to the hospital. She also testified that her headaches and neck pains were worse after the accident. Shortly after the accident, the Veteran sought treatment from a chiropractor, who wrote a letter to her unit commander in June 1994. The letter indicated cervical spondylosis with symptoms of neck soreness. These symptoms, the letter explained, prevented her from running or doing other exercises. The chiropractor, however, wrote that the Veteran, “has arrived at her present state after a long period of progressive degeneration rather than because of some specific trauma.” To help decide this claim, a VA physician examined the Veteran’s cervical spine in May 2012. The examination report indicates a diagnosis of diffuse degenerative changes. In the examiner’s opinion, a relationship between the current disability and the November 1993 accident was less likely than not. To explain this conclusion, the examiner wrote that, “The diffuse nature of the degenerative changes of arthritis occurred over a span of time, not due to the minor traumatic incident.” In July 2016, a physician assistant in private practice provided a letter which includes a contrary opinion. According to the letter, “It is possible that her chronic neck pain and recurrent migraine headaches are results of her previous accident, however, it would be impossible to determine without imaging studies having being [sic] done at the time of her accident.” In the vacated February 2018 decision, the Board relied on the May 2012 opinion when denying service connection for a cervical spine disability. In the November 2018 JMR, the parties criticized the Board decision for failing to address the complaints of headache and back pain noted in the chiropractor’s progress notes, dated June 1994. The note indicated that these symptoms had been present for “several months” but the Veteran had not sought treatment earlier due to financial concerns. As noted in the JMR, subsequent progress notes reported continuing complaints in July of 1994, September 1994, and February 1995. Because the May 2012 VA medical opinion did not address these notes, the Board remanded the cervical spine claim to obtain a new opinion. The Board instructed the post-remand examiner to reconcile any unfavorable opinion with treatment notes indicating headaches and back pain in 1994 and 1995. After performing a post-remand examination, a physician assistant provided the requested opinion in August 2020. In his opinion, it was less likely than not that the current cervical spine disability was related to the November 1993 accident. According to the examiner, the November 1993 head injury resulted in a scalp contusion which is “a separate entity entirely” from cervical spondylosis or degenerative cervical arthritis. As requested, the examiner discussed the progress notes from 1994 and 1995. According to the examiner, the complaints described in these notes were related to the “clearly pre-existing cervical spine condition (also described in June 1994) that had developed over a prolonged period of time.” This view, the examiner explained, was supported by the June 1994 chiropractor’s letter. The August 2020 opinion concerning the claimed cervical spine disability complied with the Board’s prior remand orders by the specifically discussing and addressing the complaints described in the 1994 and 1995 progress notes. The examiner’s opinion was based on an in-person examination. The information in his report and opinion are consistent with the other evidence. And the examiner supported his conclusion with a clear rationale. With respect to whether the current cervical spine disability is related to service, the Board finds that the opinion of the August 2020 examiner is the most persuasive piece of evidence. The Board has considered the July 2016 opinion submitted by the physician assistant in private practice. But that letter’s expression of the opinion – i.e., “It is possible that her chronic neck pain and recurrent migraine headaches are results of her previous accident” – falls short of the required degree of certainty. See Winsett v. West, 11 Vet. App. 420, 424 (1998) (terminology equivalent to “may or may not” is an insufficient basis for awarding service connection). And the statement that it “is possible” that the neck pain was related to the accident was followed by another qualification indicating that an opinion would be speculative without imaging studies at the time of the accident. The Board has considered the Veteran’s hearing testimony indicating that she believes that her neck pain and headaches were worse after the accident. Her testimony might be sufficient to establish in-service aggravation of a pre-existing disability, if the presumption of soundness or presumption of aggravation applied to this case. See 38 U.S.C. §§ 1111, 1153. But the personnel records describing the period of reserve training in November 1993 overlapping with the Veteran’s accident do not include an examination report. Under these circumstances, neither the presumption of soundness nor the presumption of aggravation apply to periods of ACDUTRA or INACDUTRA. See Smith, 24 Vet. App. at 45. The Board also finds that the Form DA 2173 (“Statement of Medical Examination and Duty Status”) and the June 1994 letter form the Veteran’s chiropractor are more persuasive evidence of the Veteran’s medical condition during and after the November 1993 accident than her hearing testimony more than 20 years later. At the hearing, the Veteran testified that she lost consciousness after the container hit her. But it is clear from the form, which apparently was based on an interview with the Veteran very shortly after her injury, that she did not lose consciousness. The chiropractor who wrote the June 1994 letter examined the Veteran much closer in time to the November 1993 head injury than anyone else who prepared an opinion on the probability of a nexus between her cervical spine disability and the injury. If the cervical spondylosis noted in the letter was of recent traumatic origin, the chiropractor would have been well-equipped to say so. Instead, he wrote that the Veteran had “arrived at her present state after a long period of progressive degeneration rather than because of some specific trauma.” (emphasis added). This letter supports the August 2020 examiner’s opinion that the complaints of pain noted in the progress notes from 1994 and 1995 were related to the degenerative changes which existed before the November 1993 accident and were not aggravated beyond their natural progression by that accident. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for service connection. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Although the evidence in this case proves the existence of a current disability of the cervical spine, the preponderance of the evidence weighs against a finding that a causal connection exists between the claimed disability and service. For this reason, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. Service Connection for Headaches In February 2020, the Board remanded the claim for service connection for headaches for a new opinion on the probability that the Veteran’s headaches were caused or aggravated by the November 1993 head injury. The examiner was asked to discuss the complaints of headache in the post-injury 1994 and 1995 progress notes. The Board also asked the examiner to address the Veteran’s suggestion that she developed her headaches when wearing a Kevlar helmet during training exercises. The AOJ obtained an opinion from a VA physician in March 2020. The physician described the Veteran’s current headaches as tension headaches and concluded that the November 1993 injury was not severe enough “to cause the current headache.” The physician also rejected the possibility that the Kevlar helmet caused the current headaches. Instead, the opinion attributed the Veteran’s current headaches to “anxiety stress.” In March 2019, the AOJ granted a separate claim for service-connected compensation for unspecified anxiety disorder, with an initial rating of 50 percent disabling and an effective date of August 17, 2011. Although the March 2020 examiner’s opinion was unfavorable to the theory that the Veteran’s headaches began in service, by attributing the Veteran’s current headaches to her service-connected anxiety disorder symptoms, the examiner has established her eligibility for service connection for headaches on a secondary basis. See 38 C.F.R. § 3.310. Based on the March 2020 opinion, it is at least as likely as not that the Veteran’s currently diagnosed tension headaches are proximately due to or the result of her service-connected anxiety disorder. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’. . . , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). Accordingly, the Board will grant service connection for a disability manifested by headaches. REASONS FOR REMAND In its vacated February 2018 decision, the Board denied service connection for a disability of the left wrist on the grounds that the evidence failed to satisfy the current disability requirement of the claim. According to the JMR, the Board erred in failing to consider a medical record from a physician in private practice, dated April 2011, which indicates an assessment of De Quervain tendinitis of the left wrist. This note, the parties explained, potentially undermined the Board’s finding that the Veteran did not have a current disability of the left wrist. To remedy this weakness, the Board remanded the left wrist claim, instructing the AOJ to arrange a new examination of the Veteran’s left wrist and to obtain an opinion from the examiner to specifically address the April 2011 physician’s note indicating De Quervain tendinitis. The Veteran’s wrist was examined in August 2020. In his report, the examiner described both of the wrists as normal, nontender, not painful, and with full range of motion. According to the examiner, the de Quervain’s tendinitis noted in April 2011 “is now resolved.” Unfortunately, the August 2020 examination report does not give the Board enough information to decide the left wrist claim. In a claim for service-connected compensation, the current disability requirement of the claim is satisfied if the claimed disability existed at any time during the pendency of the claim, even if the disability resolved before the Board can issue a decision. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed the pending claim in September 2011, describing her wrist disability as “wrist tendonitis” initially diagnosed in 2011. Under these circumstances, an adequate medical opinion should indicate whether the de Quervain’s tendinitis noted in April 2011 existed at any time since September 2011. If so, then the examiner should indicate whether the disability, before it resolved, was related to service. The matters are REMANDED for the following action: 1. Send the claims file to the physician assistant who prepared the August 2020 wrist conditions disability benefits questionnaire for the purpose of preparing an opinion on the nature and etiology of the Veteran’s claimed disability of the left wrist. If the August 2020 examiner is unavailable for any reason, the AOJ should obtain the requested opinion from another qualified person. If a new in-person examination is needed before the examiner can provide the requested report, then a new in-person examination should be arranged. After the examiner has completed the requested records review and, if necessary, the new in-person examination, he or she should provide a new opinion on the nature and etiology of any current disabilities of the left wrist. The examiner is advised that the “current disability” requirement is satisfied if any left wrist disability existed at any time when this claim has been pending i.e., from September 7, 2011 to the present. The examiner should then address these questions: (a) Is it at least as likely as not (50 percent probability or more) that a disability of the left wrist (including de Quervain’s tendinitis) has existed at any time since September 7, 2011? (b) If the answer to question (1)(a) is “yes”, is it at least as likely as not (50 percent probability or more) that a diagnosed left wrist disability or functional impairment of the left wrist had its initial onset in service or was caused by or resulted from an injury, illness, or event that occurred during active duty service, to include any period of ACDUTRA? The examiner should provide a complete rationale explaining the reasons for his or her opinions. THE EXAMINER SHOULD DISCUSS THE APRIL 2011 TREATMENT RECORD INDICATING DE QUERVAIN TENDINITIS OF THE LEFT WRIST. 2. The AOJ must ensure that the requested medical opinion complies with the terms of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.