Citation Nr: 21013683 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-32 048A DATE: March 10, 2021 ORDER Entitlement to service connection for headaches is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left upper extremity disability, to include left hand, left thumb, left wrist, left elbow, and left shoulder, is remanded. FINDING OF FACT The Veteran does not have a headache disability that is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a headache disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1971 to May 1975. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2017. A transcript of the hearing has been associated with the claims folder. The Board notes that initially on appeal, as well, were additional issues of service connection for a right ankle disability and tinnitus. However, a January 2016 rating decision granted service connection for a right ankle disability, and the Board granted service connection for tinnitus in a March 2018 decision. As this represents a full grant of the benefits sought, these claims are no longer before the Board. In March 2020 and August 2020 Board decisions, the remaining claims on appeal were remanded for further development. The Board notes, however, that in the March 2020 decision, the Board denied service connection for bilateral hearing loss and for a left elbow disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the parties entered into a Joint Motion for Partial Remand (JMPR) and agreed to vacate that portion of the Board’s decision that denied service connection for a left elbow disability. As the matters have been returned to the Board, the Board will proceed with further appellate review. 1. Entitlement to service connection for headaches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). The Veteran is seeking service connection for a headache disability. In his May 2017 hearing, he reported that his headaches were caused from falling down concrete stairs in service. After considering the evidence of record, the Board finds that service connection is not warranted. The record shows several VA examinations and medical opinions have been obtained to determine the etiology of the Veteran’s headaches. In November 2019, the Veteran received a VA examination for his headaches where he reported that his headaches began in the “mid-80s.” He reported no specific triggers and that they simply occur at random, once a week. He denied having head trauma and reported having relief with an icepack and over the counter analgesics. The examiner diagnosed the Veteran with headaches, common; and found it less likely than not that the Veteran’s headaches were related to service. In doing so, the examiner noted service treatment records (STRs) were silent for headaches during active duty, and post-service records show no documentation for chronic headaches proximate to the Veteran’s military service. The examiner concluded that the Veteran’s physical examination was unremarkable, and his clinical history is inconsistent with headaches to a possible residual to injury 45 years ago. In April 2020, the Veteran received a second VA examination for his headaches where the examiner agreed that the Veteran’s headaches were not caused by service. The examiner reasoned that the Veteran’s STRs are silent for a headache condition and the Veteran has not sought care after service for a headache condition. The Board notes that this opinion was deemed inadequate in the Board’s August 2020 decision; therefore, an additional medical opinion was obtained in September 2020. In the September 2020 VA medical opinion, the examiner found that the Veteran’s headache disability did not pre-exist service and continued to find that his headaches were less likely than not related to service. The examiner explained that there is no evidence of chronic headaches in the Veteran’s service medical records or thereafter. Moreover, documentation of headaches appeared almost three decades later, and there is nothing in the history, or in the description, from the few times that it is documented in private or VA records that would indicate the Veteran’s headaches are related to service. Similarly, in a November 2020 VA medical opinion, a different examiner also found that the Veteran’s headaches did not pre-exist service and were less likely than not related to service. The examiner noted that there are no STRs reflecting complaints, treatment, or a diagnosis similar to that complained; and medical evidence supports the conclusion that a persistent disability was not present in service. Further, the examiner reiterated findings from the November 2019 examiner which concluded that post-service records are silent with no documentation for chronic headaches, none proximate to his military service, and that his clinical history is inconsistent with headaches as a possible residual to injury 45 years ago. Based on the above and remaining evidence, the Board finds that service connection for a headache disability is not warranted. As noted above, all of the examiners found that the Veteran’s headaches did not pre-exist service, and/or were less likely than not related to service. With regard to whether his headaches pre-existed service, the Board notes that STRs show the Veteran complained of headaches from a motor vehicle accident he was involved in prior to service; however, this is not clear and unmistakable evidence that his headaches pre-existed service. In this regard, the Board particularly notes that during his May 2017 hearing, the Veteran testified that he had no headaches prior to service, although he had an accident. He explained that he had a headache when he went to the doctor, and that his headache was short term and was not something that lasted for any period of time. Additionally, he denied having headaches prior to service in his November 2020 headache examination. Therefore, the Veteran is entitled to the presumption of soundness. As to his headaches being caused by service, the Veteran has attributed his headaches to falling on concrete; however, STRs do not show that the Veteran sustained a fall in service and his only other complaint of headaches in service was attributed to flu symptoms and viral syndrome. Post-service records are also silent for complaints of headaches until September 2017 when the Veteran established care with VA. At that time, the Veteran reported having headaches, neck pain, and left shoulder pain. The Board notes that in a subsequent October 2017 VA treatment visit, the Veteran reported having a headache about every day; however, he has attributed his headaches to circumstances unrelated to service. For example, in his May 2017 hearing, the Veteran testified that his headaches come and go, and that he gets headaches with being stressed out. He also testified that he almost always has a headache at the end of the day from the CAD work he does; and he indicated that he sits in front of the computer too long. In addition, a November 2019 VA treatment record shows the Veteran reported that he still has headache related to neck pain. Notably, the Veteran was diagnosed with cervical spondylosis at his initial VA visit in 2017. Likewise, a June 2020 VA treatment record shows the Veteran attributed his headache to neck pain. Other evidence which does not show his headaches were due to a fall in service include statements made by the Veteran in his November 2019 VA examination. Specifically, he reported that his headaches began in the “mid-80s,” which is years after his discharge from service; and, he reported no specific triggers and that they simply occur at random. He also denied having any head trauma. Furthermore, a total of seven buddy statements were submitted in support of the Veteran’s appeal which included statements from friends, a former employer, a co-worker, a former serviceman who served with the Veteran, and his wife. The Board notes that only one person attested to the Veteran’s headaches; however, the individual noted that the Veteran mainly gets them at work, which is consistent with the Veteran’s hearing testimony. The Board also notes that, in his hearing, the Veteran stated that he and his wife have been married for 43 to 44 years, so she would know about his injuries. However, in her written statement, the Veteran’s wife referenced complaints with the Veteran’s back, shoulders, elbows, wrist, and hand, but she did not mention a complaint or treatment for headaches. Given the above, the Board finds the preponderance of evidence is against the claim as there is no evidence that the Veteran’s current headaches were caused by service. Rather, the most probative evidence of record shows the Veteran did not have a chronic headache condition in service, nor did he have continuity of symptoms that would indicate his current headache condition was related to service. As such, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim of service connection for headaches is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a back disability is remanded. In his May 2017 hearing, the Veteran contended that his current back and right knee disabilities were caused by a fall he sustained while stationed in Okinawa, Japan. Pursuant to the Board’s August 2020 decision, medical opinions were obtained to determine the etiology of the Veteran’s back and right knee disabilities; however, the Board finds the opinions are inadequate. In a September 2020 medical opinion, the examiner found no clear and unmistakable evidence that the Veteran had a back or right knee disability that existed prior to service, and that it was less likely than not that his back and right knee disabilities were related to service. In so finding, the examiner noted that service treatment records are silent for a chronic back condition or chronic knee condition in service and there is no evidence that the Veteran’s fall in 1972 caused a chronic problem or a current problem. The examiner seems to support his finding by noting generally that it is common that a person can experience back pains and knee pains during their lifetime, or during their occupations, which can cause a chronic condition. However, the Board finds this conclusion is speculative. In addition, the remainder of the examiner’s conclusion is unclear as the examiner noted, “in one moment likely due to aging, degenerative arthritis occurred and current problem started and we have the current condition, that is unlikely related to service, or the alleged fall.” Therefore, as the opinion is speculative and requires clarification, remand is required to obtain a new medical opinion. Additionally, in a November 2020 medical opinion, a different examiner found that the Veteran’s right knee and back disabilities did not pre-exist service, and that the conditions were not caused by service. The examiner noted that STRs are silent and the exit examination does not report a condition. The examiner also noted that there were no records available proximal to discharge from service. However, this opinion is also inadequate as the examiner relied on the absence of treatment in service, and it does not appear the examiner considered the lay statements of record, including statements from the Veteran’s friends, co-worker, employer, and wife who attests to the Veteran’s knee and back pain in service and thereafter. Further, the examiner found that the Veteran’s right knee and back disabilities are most likely related to his age, but the examiner did not include a medical rationale to support this position. Therefore, the Board finds an adequate opinion is warranted. 3. Entitlement to service connection for a left upper extremity disability, to include left hand, left thumb, left wrist, left elbow, and left shoulder, is remanded. In September and November 2020 medical opinions, the examiners found that the Veteran did not have a left hand or left thumb diagnosis, but found that the Veteran had diagnoses of left cubital tunnel syndrome/ulnar nerve compression and carpal tunnel syndrome (CTS), left upper extremity, that is less likely than not related to service. Specifically, the September 2020 examiner found that neuropathy was documented around 2010-2011 and is unlikely related to any injury occurred in service, but the examiner did not include a medical rationale to support his position. Similarly, the November 2020 examiner noted the Veteran’s EMG showed a mildly abnormal study suggestive of early versus mild CTS, but no other opinion or rationale was noted. Therefore, the Board finds the opinions are inadequate. In addition, as noted above, the examiners found no diagnosis for a left hand or left thumb disability. Likewise, the Veteran’s November 2019 elbow examination found no diagnosed elbow disability. However, in the Veteran’s November 2019 peripheral nerves examination, it was noted that the Veteran’s left fifth finger/hand grip is chronically weaker than the right with intermittent shooting pain from the elbow down to the fifth finger. In this regard, the Board notes that pain with functional impairment is a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the evidence suggests the Veteran may have a left hand, left thumb, and/or a left elbow disability for VA compensation purposes. The Board also notes that the Veteran’s left hand, left elbow, and left thumb conditions appear to be related to the Veteran’s cubital tunnel syndrome/ulnar nerve compression as this was the diagnosis provided by the September 2020 examiner. Further, an April 2019 VA treatment record has associated the Veteran’s carpal tunnel syndrome with his wrist. Given these findings, the Board will recharacterize the Veteran’s claim as entitlement to service connection for a left upper extremity disability, to include left hand, left thumb, left wrist, left elbow, and left shoulder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records and associate them with the Veteran’s claims folder. 2. Schedule the Veteran for VA examinations with a qualified clinician to determine the etiology of the Veteran’s back, right knee, left hand, left thumb, left wrist, left elbow, and left shoulder disabilities. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. BACK: a) The examiner should provide an opinion as to whether there is clear and unmistakable evidence that the Veteran’s back disability existed prior to service. b) If the condition pre-existed service, is there clear and unmistakable evidence that the Veteran’s back disability was NOT aggravated by his active service, to include his reported in-service injury. c) If the condition did not pre-exist service, is it at least as likely as not (a 50% or greater probability) that the Veteran’s back disability manifested during service, or is otherwise related to service, to include his reported in-service injury. RIGHT KNEE: a) The examiner should provide an opinion as to whether there is clear and unmistakable evidence that the Veteran’s right knee disability existed prior to service. b) If the condition pre-existed service, is there clear and unmistakable evidence that the Veteran’s right knee disability was NOT aggravated by his active service, to include his reported in-service injury. c) If the condition did not pre-exist service, is it at least as likely as not (a 50% or greater probability) that the Veteran’s right knee disability manifested during service, or is otherwise related to service, to include his reported in-service injury. d) Is it at least as likely as not that the Veteran’s right knee disability was proximately caused or aggravated by his service-connected right ankle disability. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology prior to any post service injury, must be acknowledged and considered in formulating any opinion. LEFT UPPER EXTREMITY: a) Identify all currently diagnosed disabilities of the left upper extremity, to include the Veteran’s left hand, left thumb, left wrist, left elbow, and left shoulder. b) For each identified disorder, provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the identified disorder manifested during service or is otherwise related to service, to include his reported in-service injury. The examiner should specifically comment on the relationship, if any, between the Veteran’s diagnosed cubital tunnel syndrome/ulnar nerve compression, and carpal tunnel syndrome and his asserted disabilities relating to his left hand, left thumb, left wrist, left elbow, and left shoulder. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, and all other lay evidence of record, including those of continuity of symptomatology prior to any post service injury, must be acknowledged and considered in formulating any opinion. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. The AOJ must review the examination reports and all opinions to ensure they are complete, adequate, and comply with the Board’s specific remand directives. 4. After the above development is completed, the claims should be re-adjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.