Citation Nr: 21013451 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-65 389 DATE: March 9, 2021 ORDER Entitlement to service connection for broken bones is denied. Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for right shoulder disability is denied. Entitlement to service connection for left shoulder disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis for claimed broken bones. 2. The evidence of record is against a finding that the Veteran’s migraine headaches had onset in service or are caused by or related to an in-service event, disease, or injury. 3. The evidence of record is against a finding that the Veteran’s cervical spine disability had onset in service or is caused by or related to an in-service event, disease, or injury. 4. The evidence of record is against a finding that the Veteran’s right shoulder disability had onset in service or is caused by or related to an in-service event, disease, or injury. 5. The evidence of record is against a finding that the Veteran’s right shoulder disability had onset in service or is caused by or related to an in-service event, disease, or injury. 6. The Veteran does not have a diagnosis of PTSD based on a confirmed in-service stressor. 7. The evidence of record is against a finding that the Veteran’s acquired psychiatric disorder had onset in service or is caused by or related to an in-service event, disease, or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for broken bones have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for migraine headaches have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for cervical spine disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for right shoulder disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for left shoulder disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for acquired psychiatric disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to March 1992 and on active duty for training (ADT) from April 1998 to August 1998; he also served on periods of inactive duty for training (IDT) in the National Guard until his separation in 2005. These matters comes before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded in March 2019 and has since returned to the Board for further appellate review. As the requested development has been completed, no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). This presumption of soundness can be overcome with clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. Id. Service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing ADT or IADT, or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. The Veteran claims that he suffers from broken bones in the cervical spine, migraine headaches, cervical spine problems, right and left shoulder disabilities, and an acquired psychiatric disorder, claimed as PTSD, due to military service, to include a motor vehicle accident in April 1994 on his way to IDT. Disability resulting from an injury incurred while proceeding directly to or returning directly from ADT or IDT shall be deemed to have been on ADT or IDT. 38 C.F.R. §3.6(e). The Veteran’s personnel records indicate that he was injured in a car accident in April 1994 on his way to drill. This accident was determined to have occurred in the line of duty and was not due to the Veteran’s willful misconduct. A Report of Investigation indicate his injuries were minor and he was released at the scene. He complained of a throbbing pain from the back of his neck to his right shoulder. He reported that his shoulder bent the steering wheel and his head hit the windshield. It was indicated that he possibly strained or bruised the muscles in his shoulder and neck. 1. Entitlement to service connection for broken bones As an initial matter, the RO denied the Veteran’s broken bones claim on a determination that the medical evidence of record is absent any diagnosed condition. The United States Court of Appeals for Veterans Claims (Court) has recently held, however, that pain alone that results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Medical records do not support a finding of a current existing diagnosis of broken bones. The Veteran did not report and did not receive treatment for broken bones in the cervical spine at the time of the accident or more recently and has also not alleged functional impairment due to broken bones in the cervical spine. During the December 2020 VA examination, the examiner opined that there is no objective evidence of cervical spine broken bones per today’s examination, and as such, no other opinion is needed. To the extent the Veteran asserts a continuity of symptomatology of broken bones beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran's separation examination and report of medical history, which were obtained contemporaneous to service and for the purpose of identifying a disability at that time. The record reflects that the Veteran did not assert this disability until many years after service. The Board acknowledges evidence in the service treatment records that the Veteran broke his right arm/elbow in August 1979 prior to service. See December 2003 report of medical history (indication of fractured right arm on August 11, 1979 that did not bother him at all); September 1999 report of medical history (fractured right arm 1979 – well healed with no residual deficit). As there was no broken bone disability or symptomatology noted at service entry, however, the Board finds that the presumption of soundness is not rebutted by the evidence of record. See 38 U.S.C. § 1111, 38 C.F.R. § 3.304. The Veteran’s claim, however, indicates broken bones following the April 1994 accident after which he suffered neck and shoulder pain. It does not appear that the Veteran is seeking service connection for any current condition that might be related to the fracture or break of his right arm/elbow prior to service. Regarding broken bones in the cervical spine, the service treatment records do not demonstrate such occurrence. Indeed, a November 2020 x-ray indicated no acute fracture, dislocation or aggressive bone lesion of the visualized cervical spine with unremarkable bone mineralization. And, the December 2020 VA examiner confirmed that there was no evidence of broken bones in the cervical spine upon examination. Absent a currently diagnosed broken bones or functional limitation due to broken bones, the claim for service connection for broken bones cannot be granted as there is no current disability. For the above reasons, the evidence is against the claim and service connection for broken bones must be denied. 2. Entitlement to service connection for migraine headaches The Veteran has a current diagnosis of migraine headaches. For example, at his December 2020 VA examination he was diagnosed with migraine including migraine variants. Thus, the remaining question is whether the current migraine headaches are related to service. Service treatment records show no complaints, diagnosis, or treatment related to headaches. As the Veteran reported other ailments during service, and migraine headaches are the type that a reasonable person would report, if the Veteran was experiencing problems with migraines during service, the Board would expect that he would have reported these problems to medical professionals. During the February 1992 separation examination, evaluation of the head, face, neck and scalp was normal. In a corresponding report of medical history, the Veteran specifically denied having had frequent or severe headaches. The Veteran also specifically denied having had frequent or severe headaches in his September 1999 report of medical history. If migraines were present during service or after the 1994 car accident, the Board would expect the Veteran would have responded “yes” when asked if he had frequent or severe headache at separation because a reasonable person would have interpreted the question to include symptoms of migraine headaches. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having migraine headaches. Migraine headaches are not shown by medical evidence until approximately 2017, many years after the Veteran’s separation from service and many years after the reported April 1994 motor vehicle accident. In a November 2017 Correspondence, the Veteran indicated having migraines four to five times weekly and that during the car accident in 1994, he hit his head on the windshield and bent the steering wheel. The Veteran presented for a VA examination in December 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the currently diagnosed migraine headaches is less likely than not incurred in or caused by the April 1994 car accident. In support of this conclusion, the examiner explained that the report of investigation LOD DD form 261 signed May 27, 1994 is silent for complaints related to headaches related to the April 1994 car accident. The examiner also explained that there is no objective evidence of chronicity of care, complaints, and/or treatment related to a headache condition within 2 years after the alleged car accident, and the December 2003 report of medical history is silent for complaints related to a headache condition. Therefore, the examiner opined that present findings are not related to his active duty service or to the alleged car accident. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, in the September 1999 report of medical history, the Veteran denied having frequent or severe headaches. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that his migraine headaches began due to the April 1994 car accident. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., headaches; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with multiple report of medical history following the accident where he denied frequent or severe headaches. The Board finds theses reports of medical history completed after the 1994 accident to be more reliable than more recent assertions as they were performed for the purpose of identifying disability at that time. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. 3. Entitlement to service connection for cervical spine disability The Veteran has a current cervical spine disability. For example, at his December 2020 VA examination, he was diagnosed with cervical spondylosis and degenerative disc disease. Thus, the remaining question is whether the current cervical spine disability is related to service. Service treatment records show possible bruised muscles in the shoulders and neck in the April 1994 Report of Investigation following the accident. Additional records do not show continued or continuing complaints of neck pains or concerns. Cervical spine disability is not shown by medical evidence until approximately 2017, many years after the Veteran’s separation from service and many years after the reported April 1994 motor vehicle accident. In a November 2017 Correspondence, the Veteran indicated pain and numbness radiating down his arm. He again indicated that during the 1994 accident he hit his head on the windshield and bent the steering wheel. The Veteran presented for a VA examination in December 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the current cervical spine disability is less likely than not incurred in or caused by the April 1994 car accident. In support of this conclusion, the examiner acknowledged the report of investigation LOD DD form 261 signed May 27, 1994 indicated that the Veteran suffered a neck strain in the April 1994 car accident. The examiner also explained, however, that there was no objective evidence of chronicity of care, complaints, and/or treatment related to a neck condition within 2 years after the alleged car accident, and the December 2003 report of medical history is silent for complaints related to a neck condition. The examiner opined that present findings are not related to his active duty service or to the alleged car accident and were more likely related to the normal aging process. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, while the April 1994 Veteran’s report of investigation notes strained muscles in the neck and shoulder, the Veteran did not complain of any further issues with his neck. Specifically, during a December 2017 physical, the Veteran reported no neck pain or stiffness. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that his cervical spine disability began due to the April 1994 car accident. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., stiff neck or neck pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s reports of medical history subsequent to the accident, along with his December 2017 medical file indicating that the Veteran had no neck pain or stiffness. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. 4. Entitlement to service connection for right and left shoulder disabilities The Veteran has a current bilateral shoulder disability. For example, at his December 2020 VA examination he was diagnosed with acromioclavicular joint osteoarthritis in both shoulders. Thus, the remaining question is whether the current bilateral shoulder disability is related to service. Service treatment records show possible bruised muscles in the shoulders and neck in the April 1994 Report of Investigation following the accident. Additional records do not show continued or continuing complaints of shoulder pains or concerns. The Veteran specifically denied having had painful or “trick” shoulder or elbow in his September 1999 report of medical history. If bilateral shoulder disabilities were present during service or after the 1994 car accident, the Board would expect the Veteran would have responded “yes” when asked if he had painful or “trick” shoulder or elbow because a reasonable person would have interpreted the question to include symptoms of shoulder. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having shoulder complaints. Bilateral shoulder disabilities are not shown by medical evidence until approximately 2017, many years after the Veteran’s separation from service and many years after the reported April 1994 motor vehicle accident. The Veteran presented for a VA examination in December 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner opined that the current bilateral shoulder disabilities are less likely than not incurred in or caused by the April 1994 car accident. In support of this conclusion, the examiner explained that the report of investigation LOD DD form 261 signed May 27, 1994 does confirm shoulder strain as due to April 1994 car accident. However, there is no objective evidence of chronicity of care, complaints, and/or treatment related to shoulder disabilities within 2 years after the alleged car accident, and the December 2003 report of medical history is silent for complaints related to shoulder conditions. Therefore, the examiner opined that present findings are not related to his active duty service or to the alleged car accident and more likely related to the normal aging process. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, while the April 1994 Veteran’s report of investigation notes strained muscles in the neck and shoulder, the Veteran did not complain of any further issues with his shoulders to include in his September 1999 report of medical history. There is no medical opinion or competent and credible evidence in significant conflict with the VA medical opinion. The Board has considered the Veteran’s statements, to include his assertions that his shoulder disabilities began due to the April 1994 car accident. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., shoulder pain; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s reports of medical history subsequent to the accident that did not indicate shoulder concerns or indication of disability in either shoulder. For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. The Veteran does not currently have PTSD which meets the diagnostic criteria for PTSD under DSM-5 criteria. For example, during the December 2020 VA examination, the examiner determined that the Veteran’s claimed PTSD did not conform to DSM-5 criteria. However, the Veteran does have a current acquired psychiatric disorder. For example, during the December 2020 VA examination, the Veteran was diagnosed with unspecified anxiety disorder. Thus, the remaining question is whether the current acquired psychiatric disorder is related to service. Although the Veteran indicated that he received treatment at Community Mental Health in 1987, during the February 1992 separation examination, evaluation of the psychiatric system was normal. In a corresponding report of medical history, the Veteran specifically denied having had depression or excessive worry or any nervous troubles. The Veteran also specifically denied having had psychiatric concerns in his September 1999 report of medical history. If psychiatric concerns were present during service or after the 1994 car accident, the Board would expect the Veteran would have responded “yes” when asked if he had depression or excessive worry or nervous trouble of any sort because a reasonable person would have interpreted the question to include symptoms of anxiety disorder. Moreover, the Veteran responded affirmatively when asked whether he had other conditions at separation and the Board would thus expect the Veteran to have also responded affirmatively to having mental health problems, to include anxiety or depression. While it is possible the Veteran sought treatment in 1987, treatment records on file do not indicate complaints of anxiety or mental health concerns until 2017, many years after the Veteran’s separation from service and many years after the reported April 1994 motor vehicle accident. The Veteran has submitted evidence in support of his claim; however, he has not provided evidence of psychiatric treatment prior to 2017 or indicated that his service treatment records are incomplete. In addition, the Veteran was given the opportunity to submit any additional records or provide the information for VA to assist him in obtaining them in the March 2019 remand. In a November 2017 correspondence, the Veteran indicated that he had PTSD as a consequence of the 1994 accident when he saw a “baby fly out from the other vehicle and land on the street.” The Veteran presented for a VA examination in December 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran indicated having trouble sleeping and experiencing nightmares. He indicated that the only thing he remembered from the 1994 accident was “the kid who flew from the back of his car” and “hitting the wind shield.” He claimed that the child’s head collided with the glass of the other vehicle and he experienced flashbacks when under stress. The examiner indicated the Veteran began seeking psychiatric treatment in 2017 and opined that the current anxiety disorder is less likely than not incurred in or caused by the April 1994 car accident. In support of this conclusion, the examiner explained that the Veteran did not have a current PTSD diagnosis, and that the Veteran’s records do not show evidence of a car accident within service that was sufficient to cause the Veteran’s currently diagnosed anxiety disorder. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran and review of the claims file. The opinion is also supported by other evidence of record. For example, the Veteran repeatedly denied having any psychiatric concerns in both his 1999 report of medical history and in the 2003 report of medical history. The Board acknowledges the October 2017 private medical record indicating a diagnosis of anxiety disorder and ruling out PTSD. However, the medical provider did not provide an opinion as to an in-service event or nexus. Furthermore, this indication is in line with the findings at the December 2020 VA examination that the Veteran has an anxiety disorder, but does not have diagnosed PTSD, and that his treatment began in 2017. The Board has considered the Veteran’s statements, to include his assertions that his anxiety disorder is due to the April 1994 car accident. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., depressed mood; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s reports of medical history subsequent to the accident where he specifically denied having had depression or excessive worry or nervous trouble of any sort and the record reflects the Veteran began seeking treatment for psychiatric concerns in 2017. (Continued on next page) For the above reasons, the preponderance of the evidence is against the claim and service connection is denied. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.