Citation Nr: 21010911 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-19 446 DATE: February 26, 2021 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to service connection for a headache disability is granted. Entitlement to service connection for a left shoulder disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, her current neck, headache, and left shoulder disabilities began in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a headache disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1993 to June 1995. This appeal is before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. In January 2019, the Board denied the claims addressed here and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Partial Remand (Joint Motion). In December 2019, the Court granted the motion and remanded the case to the Board. The Court instructed the Board to remand the claims to obtain new VA examinations and medical opinions and instructed the Board to reconsider the evidence of record. The claims were remanded by the Board in May 2020. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a neck disability The Veteran contends she is entitled to service connection for a neck disability. After review of the entire record, the Board finds there is an equal balance of competent and credible evidence for and against a finding of a medical nexus between active service and the Veteran’s neck disability. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service treatment records from May 1995 show the Veteran complained of a dull ache on the left side of her neck that had persisted for a week. She described the pain as extending from her neck down to her left shoulder. She was assessed to have a mild to moderate neck sprain. The Veteran’s received an X-ray of the cervical spine. The radiological report states there was straightening of the normal lordotic curve, which could be due to muscle spasm versus position, but there was no bony abnormality. Post-service VA treatment notes from February 2002 show the Veteran reported a previous neck injury in 1995 that has caused relatively constant pain since that time. Upon examination, the physician noted a palpable lump on the left side of the Veteran’s neck, which she reported had been present since 1995. The Veteran again sought treatment for neck pain in March 2002, April 2002, and January 2003. However, an MRI of the cervical spine in March 2002 was normal. The Veteran was afforded a VA examination in August 2015. The Veteran reported having neck pain from carrying backpacks. Prior to the examination, the Veteran received an X-ray of the cervical spine in July 2015, which showed straightening of the cervical spine with possible ossification of posterior longitudinal ligament at the C5-C6 and C6-C7 level. Although the VA examiner provided a medical opinion, he failed to address the Veteran’s in-service treatment for a cervical spine strain. Therefore, the opinion is considered inadequate, as was discussed and agreed upon in the Joint Motion. In her December 2016 Notice of Disagreement, the Veteran stated her neck has always bothered her, but she did not continuously seek medical treatment for the condition. Subsequently, the Veteran attended a VA examination in October 2020. The Veteran reported that she carried heavy rucksacks in service and began to have neck pain that has progressively worsened. The VA examiner diagnosed a cervical strain. He opined that the claimed neck disability is less likely than not incurred in or caused by the in-service neck condition. The examiner discussed how a May 1995 X-ray showed some straightening of the normal lordotic curve, an MRI from 2002 showed normal alignment, and a July 2015 X-ray again showed straightening of the cervical spine. According to the VA examiner, the imaging reports of the Veteran’s cervical spine suggest that she gets periodic cervical strains that sometimes have resulting muscle spasms in the neck. Therefore, the VA examiner concluded that he was unable to establish a chronic neck condition that was either incurred in or caused during active service. Based on the forgoing, and resolving all doubt in favor of the Veteran, there is evidence of a current cervical spine disability and evidence of cervical spine strain during service. The Board notes there is both favorable unfavorable evidence regarding the onset of the Veteran’s current cervical spine disability and associated symptomology. The Veteran is not competent to offer an opinion as to the etiology of her current neck disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. However, in this case, the Veteran has consistently reported, and the medical records show, she has a history of neck pain that began during service. The Veteran’s reports of continuous pain are credible, and she is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to her through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, X-rays taken during service and in 2015 show straightening of the cervical spine. Accordingly, the Board finds that service connection for a neck disability is warranted. 2. Entitlement to service connection for a headache disability The Veteran seeks service connection for headaches, which she contends originated in service. After review of the entire record, the Board finds there is an equal balance of competent and credible evidence for and against a finding of a medical nexus between active service and the Veteran’s headache disability. Service treatment notes from June 1994 indicate the Veteran complained of headaches. In May 1995, the Veteran reported having occasional migraines, and that a doctor previously told her she experienced migraines. However, she also stated that her migraines stopped once she began taking birth control pills. Post-service VA treatment notes from February 2003 show the Veteran reported having recurring migraines. She was again noted to have a history of migraines in May 2013. The Veteran was afforded a VA examination in June 2015. She reported that her headaches began in basic training. The VA examiner noted the Veteran was diagnosed with migraines in May 2013, and opined that the migraines were less likely as not related to military service. However, as discussed in the Joint Motion, the examiner failed to discuss the Veteran’s May 1995 reports of migraines during service. Therefore, the opinion is considered inadequate. In her April 2017 VA Form 9 Appeal to the Board, the Veteran stated that she was diagnosed with migraines while in the military and was advised to undergo surgery and enroll in a headache clinic. However, she was not comfortable with undergoing the suggested treatment. At an October 2020 VA examination, the Veteran reported that her headaches began in 1993 while in service. She denied suffering any specific head injury or trauma during service, and that the condition has persisted since discharge. The Veteran explained that she experiences headaches a couple of times each month that sometimes cause nausea and impaired vision. The VA examiner opined that the claimed migraines were less likely than not incurred in or caused by the migraine disability noted during service. As rationale, the VA examiner stated that aside from the May 1995 report of migraines, he was unable to find any other complaints of migraines during service and noted that the condition resolved with birth control pills. He further stated that the Veteran did not report symptoms during the examination that are consistent with migraine etiology, yet also noted that her headaches appear to still occur infrequently. Therefore, the VA examiner concluded that he was unable to establish a chronic migraine condition caused by service. Based on the forgoing, and resolving all doubt in favor of the Veteran, there is evidence of a current headache disability and evidence of headaches during service. The Board acknowledges the unfavorable medical opinion regarding the nexus between the Veteran’s headaches and military service, but also notes the examiner’s failure to consider the Veteran’s lay statements regarding her headaches. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006). The Veteran’s reports of headaches developing in-service and continuing since service are competent and credible. See Layno, 6 Vet. App. at 469 (1994). Further, the VA examiner acknowledges that the Veteran’s headaches actually still occur, yet determined that despite her reports and even post-service medical records showing she complained of headaches, the condition was not chronic since service. As the evidence is at least evenly balanced as to whether the Veteran’s current headache condition is related to the in-service reports of, and treatment for, headaches, reasonable doubt must be resolved in favor of the Veteran. Entitlement to service connection for a headache disability is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a left shoulder disability The Veteran also seeks service connection for a left shoulder disability. In the Joint Motion, the parties agreed that in the January 2019 decision, the Board failed to discuss the functional impairment and continuity of symptomatology of the Veteran’s left shoulder. The evidence is discussed in detail below. After review of the entire record, the Board finds there is an equal balance of competent and credible evidence for and against a finding that the Veteran’s current left shoulder disability onset during service. While the Veteran did not specifically complain of or seek treatment for a left shoulder condition during service, May 1995 service treatment records show she complained of left side neck pain. After service discharge, she was noted to have a lump on the left side of her neck and pain that traveled from her neck down the left arm in February 2002. She complained of and sought treatment for left shoulder pain in April 2002. In August 2002, the Veteran was in a motor vehicle accident and she complained of left shoulder pain. In April 2003, the Veteran underwent surgery to have the lump removed from her left shoulder, which reduced shoulder pain. During an August 2015 VA examination, the Veteran reported having left shoulder pain that began during service. She associated the pain with carrying backpacks. The VA examiner noted a diagnosis of a left shoulder strain onset in 1995. Upon examination, the Veteran was noted to have pain and reduced range of motion of the left shoulder. The VA examiner opined that the Veteran’s left shoulder disability was less likely than not incurred in or caused by service. As rationale, the VA examiner explained that the current symptoms of tenderness and decreased range of motion were more likely the residuals of the Veteran’s 2003 left shoulder surgery rather than from an in-service cervical strain in 1995. In her December 2016 Notice of Disagreement and April 2017 VA Form 9, the Veteran stated that she injured her left shoulder in service, and that a lump developed due to carrying heavy rucksacks. At an October 2020 VA examination, the Veteran was diagnosed with left shoulder acromioclavicular joint osteoarthritis, and left shoulder impingement syndrome. The Veteran reported that her left shoulder disability onset in service in 1994 due to carrying heavy rucksacks, and the condition had progressed since discharge. The Veteran described having intermittent pain in the left shoulder, and difficulty with overhead and behind the back reaching. The VA examiner opined that the claimed left shoulder condition is less likely than not incurred in or caused by service. The VA examiner stated that during service, the Veteran was diagnosed with a left shoulder strain, but there were no further complaints until 2002. The VA examiner determined that the 1995 left shoulder strain was acute in nature and ultimately resolved. As for the Veteran’s current diagnoses associated with the left shoulder, the VA examiner believed those diagnoses are associated with the 2002 accident, and the 2003 surgery. The VA examiner concluded that he was unable to establish a chronic shoulder condition that was either incurred in or caused during service. Based on the forgoing, and resolving all doubt in favor of the Veteran, there is evidence of a left shoulder disability that onset during service. The Board acknowledges the unfavorable medical opinion regarding the nexus between the Veteran’s left shoulder and military service. However, we find the VA examiner has overlooked the medical evidence that shows even before the August 2002 car accident, the Veteran complained of and sought treatment for her left shoulder. In February 2002, a VA physician noted the lump on the left aspect of her neck, and she again complained of left shoulder pain in April 2002. The medical evidence dated prior to the motor vehicle accident, along with the Veteran’s lay reports that she had left shoulder pain and a lump since service goes against the VA examiner’s conclusion that the in-service left shoulder strain was acute and resolved. (Continued on the next page)   As the evidence is at least evenly balanced as to whether the Veteran’s current left shoulder condition is related to service, reasonable doubt must be resolved in favor of the Veteran. Entitlement to service connection for a left shoulder disability is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.