Citation Nr: 21020999 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 14-25 552 DATE: April 9, 2021 ORDER Entitlement to service connection for a right upper extremity neurological disorder is denied. Entitlement to service connection for a right lower extremity neurological disorder is denied. REMANDED Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. According to the evidence of record, it is clear and unmistakable that the Veteran’s right upper extremity neurological disorder preexisted his active service, and it is clear and unmistakable that the Veteran’s right upper extremity neurological disorder was not aggravated by his active service. 2. According to the evidence of record, it is clear and unmistakable that the Veteran’s right lower extremity neurological disorder preexisted his active service, and it is clear and unmistakable that the Veteran’s right lower extremity neurological disorder was not aggravated by his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right upper extremity neurological disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 2. The criteria for entitlement to service connection for a right upper extremity neurological disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to November 1970. In June 2016, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ) with the Board of Veterans’ Appeals (Board). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of a VA Regional Office (RO). The Board denied the Veteran’s claim for service connection in November 2019. Subsequently, the Veteran appealed the denial of his service connection claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a November 2020 decision, the Court granted the parties’ Joint Motion for Remand (JMR), vacated the Board’s November 2019 decision, and remanded the matter to the Board for action consistent with the ruling. The claims are now once again before the Board. 1. and 2. Entitlement to service connection for a right upper extremity neurological disorder and to service connection for a right lower extremity neurological disorder is remanded. The Veteran asserts that his right upper extremity and right lower extremity neurological disorders arose during or as a result of his active service In the November 2020 JMR, the parties agreed that the Board erred in two respects in its November 2019 denial of the claims for service connection for neurological disorders. First, the Board stated that the Veteran’s service treatment records (STRs) clearly showed that he had weakness and atrophy of the right side of his body prior to entering active service; however, his entrance examination showed no such notations upon entry. The Board did not resolve this discrepancy in its decision. Second, the Board applied the preponderance of the evidence standard rather than the clear and unmistakable evidence standard when denying the Veteran’s claims. After addressing these two matters, the Board finds that the Veteran’s claims for service connections must still be denied. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d). For purposes of establishing service connection, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term “noted” denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence that there was a preexisting condition and that it was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an “onerous” evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). If, on the other hand, a preexisting disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. In that circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a preexisting disability has been aggravated. According to this statute and regulation, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The Board finds that the most probative evidence of record with respect to these two issues also consists of the Veteran’s lay statements, STRs, VA and private treatment records, and the relevant VA examination reports in the claims file. The Veteran claims, in his lay statements, that he had a neurological disorder affecting his right upper and lower extremities as a child, before entering active military service, and that the disorder was aggravated during that service. The Veteran’s August 1966 entrance medical examination is negative for evidence of his right-side conditions; therefore, the presumption of soundness will attach unless there is clear and unmistakable evidence that his right-side conditions preexisted service. The Board finds that there is clear and unmistakable evidence that the Veteran’s right upper extremity and right lower extremity conditions preexisted his active service. His STRs show that he had weakness and atrophy of the right side of his body upon entrance into active military service due to a prior viral infection (possibly a polio infection) at age two. See, e.g., June 1967 STR; August 1967 USAF Physical Evaluation Board summary statement. That weakness and atrophy of the right side of the Veteran’s body (including his right upper and lower extremities) was well-documented throughout the Veteran’s STRs, from the beginning of his active service until his discharge. Additionally, the Veteran has not disputed that his right-side conditions preexisted service. In his December 2020 memorandum, the Veteran argues that he should be presumed to have been sound upon entrance to service because his entrance medical examination did not reflect his right-side conditions; however he does not argue that the conditions did not exist prior to service. Instead, his intention appears to be to insist that because the conditions were not noted, he should be treated as having possessed no preexisting conditions. This is only true if there is not clear and unmistakable evidence of said conditions. No medical opinion or evidence indicates that the conditions did not preexist his active service. There is clear documentation, including records that are roughly contemporaneous with his entrance into active service, that show his right-side conditions preexisted service. In fact, the Veteran was only allowed to continue in active service because the Veteran was found to be able to complete his duties despite the preexisting conditions. Accordingly, and in light of the June 2019 VA examination report described below, the Board concludes that the conditions clearly and unmistakably preexisted active service. While the Veteran’s STRs do show that the claimed conditions preexisted service, they do not show that his right-side weakness and atrophy worsened during his service. The Veteran’s VA and private treatment records show that he was injured in an automotive accident in or about 2003, that he complained immediately thereafter of left upper extremity neurological symptoms, and that he has complained of a neurological disorder affecting his upper extremities since that accident. In fact, immediately after the accident, the Veteran complained of left arm paresthesias. Later, in 2005, he complained of cervical pain radiating into his arms and positive paresthesias to his hands bilaterally, along with continued weakness in his bilateral upper extremities. The Veteran was afforded VA examinations to determine the etiology of his claimed upper right and a lower right extremity neurological disorder(s) in November 2011, September 2016, February 2017, and June 2019. The November 2011 VA examiner opined that the Veteran’s current weakness, numbness, and pains in his upper and lower extremities were less likely than not related to the polio at age two, and more likely than not related to the spinal stenosis of his cervical and lumbar spine that he sustained in the automobile accident in or about 2003. As a rationale for that opinion, the examiner explained that polio would not cause spinal stenosis after 50-plus years. The examiner also opined that the Veteran’s right upper and lower extremity weakness did not progress beyond its normal progression during the Veteran’s active military service. The September 2016 VA examiner opined that the Veteran had polio-related right upper and lower extremity weakness and motor neuron problems prior to his active military service and as a result of his polio infection at age two. In the rationale, the examiner relied on the Veteran’s STRs as evidence that the right upper and lower extremity problems preexisted the Veteran’s service and were not aggravated by his service. The examiner opined that the Veteran’s current right upper and lower extremity neurological complaints, and his subsequent development of both cervical and lumbar spinal stenosis with advanced cervical spondylosis and foraminal stenosis, were due to normal aging, were aggravated by the Veteran’s cervical spine injury during the 2003 automobile accident, and were not related to his pre-service poliomyelitis at age two. The February 2017 VA examiner opined that “[i]t is less likely as not that the Veteran’s preexisting RUE/RLE (right upper extremity/right lower extremity) neurological disorders were not aggravated by his military service.” Then, the examiner opined that the Veteran’s preexisting right upper and lower extremity neurological disorders were not aggravated by his military service. In the rationale, the examiner noted that the Veteran’s STRs show that he had right upper and lower extremity neurological dysfunction prior to entering active military service and that it was not aggravated during the Veteran’s active military service. Reconciling these statements, the Board finds that the examiner’s intention was to opine that the Veteran’s right upper and lower extremity neurological disorders were not aggravated beyond their natural progression by or during his active military service. The June 2019 examiner opined that the Veteran’s upper right and lower right extremity neurological disorders were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness (including the in-service upper right and lower right extremity neurological disorders). The examiner also opined that the Veteran’s upper right and lower right extremity neurological disorders clearly and unmistakably existed prior to service and were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. The examiner’s rationale for those opinions was essentially that the Veteran’s STRs document that his right upper and lower extremity symptoms preexisted his service, that they do not document any in-service worsening or aggravation of those symptoms, and that the 2003 automobile accident was a contributing factor to the Veteran’s current right upper and lower extremity neurological complaints. Upon review of the Veteran’s claims file, including but not limited to the evidence discussed above, the Board finds that the evidence of record indicates that the claimed conditions clearly and unmistakably preexisted active service, and the claimed conditions clearly and unmistakably were not aggravated beyond their natural progression by active service. The totality of the Veteran’s service has been considered, and the Board notes that there is no documentation of complaints or treatment for worsening of the preexisting conditions during service. There is also no evidence of increased complaints or treatment for his right-side conditions in the years immediately following separation from active service. All of the VA examination reports support these conclusions, and once again, the Board finds that those reports are the most probative evidence of record, since they are based on a review of the Veteran’s claims file and are consistent with the rest of the medical evidence therein. No medical opinion supports the Veteran’s claim. The Board also notes that he did not file a claim for service connection until June 2011, roughly forty years after leaving active service. The Veteran claims that his right upper and lower extremity neurological disorders were aggravated during his active military service, but this is not supported by any in-service documentation or medical opinions. The Board has considered the Veteran’s lay assertions in this case, but he lacks the medical training or credentials to provide a competent opinion as to a diagnosis or etiology. Such opinions therefore lack probative value. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds that the Veteran is not entitled to service connection for upper right and lower right extremity neurological disorders, and the claims are denied. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. The Veteran asserts that his chronic headache condition began during or as a result of his active service or was aggravated by active service. In the November 2020 JMR, the parties agreed that the VA examinations of record for the Veteran’s headache claim did not adequately consider his lay statements asserting that he had experienced chronic headaches since active service. Instead, the VA examinations relied on the lack of documented treatment for headaches to conclude that the condition had not been caused or aggravated by service. Consequently, they concluded that the VA examinations were inadequate for adjudication purposes, and the Board had erred in relying on them to deny the Veteran’s claim. Accordingly, this claim must be remanded for an addendum VA medical opinion on the nature and etiology of the claimed condition. The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion by a qualified medical professional on the nature and etiology of the claimed conditions. The examiner must review the Veteran’s claims file, including all lay statements and reports. The Veteran’s lay statements and reports, including his assertions that he has experienced chronic headaches since active service, must be explicitly considered in any rationale the examiner provides regarding the claimed conditions. Any indicated studies should be performed. The examiner should provide the following opinions: Did the Veteran’s claimed right upper or right lower extremity neurological disorders or his headaches clearly and unmistakably preexist service, and if so, was the disability clearly and unmistakably NOT aggravated by service? If not, are such disorders at least as likely as not (a 50 percent or greater probability) etiologically related to service. If any such disorders are not found to exist presently, the examiner should so explain. All opinions must be supported by a detailed rationale and must consider the Veteran’s lay contentions. The examiner may not rely solely on the lack of documented treatment in supporting their conclusions. If accurate diagnoses and opinions can be provided without an in-person examination, then an in-person examination is not necessary. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.