Citation Nr: 21022147 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-13 517 DATE: April 14, 2021 ORDER The previously denied claim of service connection for a left wrist condition is to be reconsidered. Service connection for a left wrist strain is granted. Service connection for a lumbosacral strain is granted. REMANDED An initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). Service connection for migraines. FINDINGS OF FACT 1. The Veteran’s left wrist strain is related to service. 2. The Veteran’s lumbosacral strain is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left wrist strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lumbosacral strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from September 2008 to August 2009 and on active duty from July 2010 to December 2010, along with additional periods of ACDUTRA and inactive duty for training (INACDUTRA). The case is on appeal from an August 2015 rating decision. In August 2020, the Veteran testified at a Board hearing. The record was held open 30 days and the Veteran submitted additional evidence later in August 2020. Waiver of initial RO consideration of the evidence is presumed. 1. Whether a previously denied claim of service connection for a left wrist condition should be reopened or reconsidered. Initially, the Board notes that an unappealed and final September 2013 rating decision denied service connection for left wrist strain. The rating decision stated that “[y]our complete service treatment records [STRs] were unavailable for review.” Subsequently, the Veteran filed the present January 2015 claim of service connection for a left wrist condition and in an August 2015 rating decision. Service treatment records (STRs) were received after the September 2013 rating decision in January 2015. Specifically, a June 2013 STR, which was during a period of ACDUTRA, was received. The STR stated that the Veteran was “[h]ere with [complaint of] 2.5 year [history] of left wrist pain. No trauma, but st[ate]s when lifting weights in Afghanistan…his left wrist hyperextended.” When this occurs, VA will reconsider a claim notwithstanding the standard requirement for receiving new and material evidence under 38 C.F.R. § 3.156(a). See 38 C.F.R. § 3.156(c)(1). Therefore, regardless of whether new and material evidence has been received, the claim should actually be reconsidered under 38 C.F.R. § 3.156(c) rather than considered for reopening under 38 C.F.R. § 3.156(a) due to the receipt of the STRs in January 2015 that had not yet been addressed until the current appeal. As such, the Board will reconsider the claim, which entails a de novo review on the merits, and is further addressed below. Service Connection Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 2. Service connection for a left wrist condition. With respect to the first element of direct service connection, the Veteran was afforded a VA examination in July 2015 and a Wrist Conditions Disability Benefits Questionnaire (DBQ) was completed. A diagnosis of left wrist strain was noted. As such, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran has reported that he injured his left wrist during active service in Afghanistan. In this regard, on a June 2012 VA Form 21-526, the Veteran referenced injuring “my left wrist while on deployment to Afghanistan. I was working out with some heavy weights and one of the weights I was holding became to[o] heavy during my lift and it made my wrist bend backwards.” In a July 2012 statement, the Veteran reported similar information as to injuring his left wrist in Afghanistan and also stated that “[m]y wrist continued to get worse from that point on.” Also, as discussed above, a June 2013 STR contained similar information as to the left wrist injury in Afghanistan. In addition, the Veteran testified at the August 2020 Board hearing that he injured his left wrist in Afghanistan while weightlifting. The Board finds the Veteran’s lay statements as to his in-service experiences and symptoms to be credible and thus the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran’s current left wrist strain and his active service, of record are multiple opinions. Following VA examination, a negative direct service connection opinion was provided in August 2013. The rationale referenced that “[t]he service record does not document objective findings consistent with a higher energy injury to the…left wrist” and that “nor does the service record document repetitive microtrauma.” By the apparent requirement of “service record” documentation, “it appears that the medical examiner impermissibly ignored the [Veteran’s] lay assertions” as to injuring his left wrist during active service in Afghanistan. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). The Board accordingly affords this opinion limited probative value as to the issue of nexus. Following the July 2015 VA examination, an opinion was provided addressing presumptive service connection related to Persian Gulf War veterans under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, but not the issue of direct service connection. As such, this opinion is afforded no probative value as to the issue of nexus. Finally, of record is an August 2020 private medical record from Dr. R.O. The record stated that “[a]fter review of the medical records, coupled with my treatment as [the Veteran’s] primary care physician, it is my professional opinion that the injur[y] of…wrist [was] more likely than not sustained while on active duty,” that the Veteran “is my patient and have…established care with him that dates back to 2012. I am currently his primary care physician and have seen this patient as recently as July 2020” and that “[i]t is my professional opinion that no other circumstances as evidence by his medical records were the cause of his injur[y] o[f] his left wrist…It is therefore my medical professional opinion, that it is more likely than not that his injur[y] of left wrist…occurred while serving on active duty.” The Board finds the positive private August 2020 opinion to be the most probative evidence of record as to the issue of nexus. This opinion was provided by a doctor who had treated the Veteran and reviewed medical records and included a rationale in support of the conclusion provided that, essentially, a left wrist disability was related to the Veteran’s active service. Based on the August 2020 private opinion, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran’s left wrist strain is related to service. This is particularly so when reasonable doubt is resolved in his favor.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for a left wrist strain is warranted. 3. Service connection for a low back condition. With respect to the first element of direct service connection, the Veteran was afforded a VA examination in July 2015 and a Back (Thoracolumbar Spine) Conditions DBQ was completed. A diagnosis of lumbosacral strain was noted. As such, the Board finds that the first element of direct service connection has been met. With respect to the second element of direct service connection, the Veteran has reported that he injured his back during active service in Afghanistan. In this regard, at the August 2020 Board hearing, the Veteran testified that his “back…occurred when I was in Afghanistan” and he stated that “it was a recurring, it was kind of a nagging injury…it was just a lot of pain…it just began to get worse and worse and worse.” He also responded affirmatively to a question of “for the back there wasn’t necessarily one specific injury, but it was the buildup of like wear and tear of the normal duties in Afghanistan.” The Board finds the Veteran’s lay statements as to his in-service experiences and symptoms to be credible and thus the Board finds that the second element of direct service connection has been met. With respect to the third and final element of direct service connection, a nexus between the Veteran’s current lumbosacral strain and his active service, there is only one nexus opinion of record addressing direct service connection. In this regard, following the July 2015 VA examination, an opinion was provided addressing presumptive service connection related to Persian Gulf War veterans under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, but not the issue of direct service connection. Also of record is the previously discussed August 2020 private medical record from Dr. R.O. The record stated that “[a]fter review of the medical records, coupled with my treatment as [the Veteran’s] primary care physician, it is my professional opinion that the injur[y] of back…[was] more likely than not sustained while on active duty” and that “[i]t is my professional opinion that no other circumstances as evidence by his medical records were the cause of his injur[y] o[f] his…back. It is therefore my medical professional opinion, that it is more likely than not that his injur[y] of…back occurred while serving on active duty.” The Board finds the positive private August 2020 opinion to be the most probative evidence of record as to the issue of nexus. This opinion was provided by a doctor who had treated the Veteran and reviewed medical records and included a rationale in support of the conclusion provided that, essentially, a back disability was related to the Veteran’s active service. The Board notes that there is no competent opinion of record contrary to the conclusion provided in this positive opinion. Based on the August 2020 private opinion, the Board finds that the third and final element of direct service connection has been met. In sum, the Board finds that the Veteran’s lumbosacral strain is related to service. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for a lumbosacral strain is warranted. REASONS FOR REMAND 1. An initial rating in excess of 30 percent for PTSD. Remand is warranted to afford the Veteran a new VA examination and to obtain outstanding treatment records. First, the Veteran was last afforded a VA examination for his PTSD in July 2015. Subsequently, the Veteran specifically stated that his PTSD had worsened. See March 2017 VA Form 9 (“My PTSD condition…is getting worse”). As such, in light of the reported worsening of the Veteran’s disability since the last VA examination, the Board finds that remand is warranted to afford the Veteran a new VA examination to determine the current severity of his PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Second, VA treatment records appear to be complete up to August 2015. Some records are of record dated up to January 2017, but based on a comparison of different sets of VA treatment records of record, these records appear to be incomplete. Subsequently, the Veteran referenced receiving additional VA treatment related to his PTSD. See July 2019 Statement (“I’m currently getting treatment for PTSD from VA”), August 2020 Statement (referencing upcoming treatment in November 2020). As such, all outstanding VA treatment records from August 2015 must be obtained. Similarly, while Vet Center records are of record dated up to January 2015, later VA treatment records referenced the Veteran as receiving Vet Center treatment. See, e.g. April 2016 Note (listing Vet Center treatment from “2014 – present” and noting “Vet Centers monthly visits”). As such, on remand, any outstanding Vet Center records must also be obtained. Third, the Veteran and evidence of record referenced the Veteran as receiving private medical treatment for his PTSD. In this regard, VA treatment records referenced private one on one therapy with a Dr. J. and in August 2020 the Veteran noted “PTSD Therapy Poway Medical Center.” As such, while on remand, the Veteran must be given the opportunity to either provide any outstanding relevant private treatment records, to include any records from Dr. J. or Poway Medical Center, or complete a release for such providers; if any releases are returned, VA must attempt to obtain the identified records. See 38 C.F.R. § 3.159(e)(2) (“If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records”). 2. Service connection for migraines. Remand is warranted to afford the Veteran a new VA examination and to obtain VA opinions that were not previously obtained. The Veteran was afforded a VA examination in July 2015 and a Headaches DBQ was completed. A diagnosis was noted of migraine including migraine variants. The only opinion that the examiner provided addressed presumptive service connection related to Persian Gulf War veterans under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. An April 2014 STR (during a period of ACDUTRA) noted that the Veteran presented for headaches and that he “states that he has experienced [headaches] on and off for a couple of years.” An August 2014 VA primary care treatment note stated that the Veteran complained of headaches and it was stated “[i]t is a chronic longstanding problem since his deployment,” which presumably was in reference to the Veteran’s 2010 Afghanistan deployment. Based on these records and the evidence of record, the Board finds that the requirements to obtain a VA opinion as to direct service connection are met and that remand is therefore warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Board also finds that an opinion as to secondary service connection and the Veteran’s service-connected PTSD is also warranted. In this regard, a February 2014 Periodic Health Assessment form included the Veteran’s report of having frequent headaches and his report of “[h]eadaches…when stressed.” In addition, the previously discussed April 2014 STR also stated that the Veteran “has had sleep disturbance for a few years” and noted an assessment of “headache syndromes: [signs and symptoms consistent with] migraine with recent exacerbation of [symptoms] – likely due to recurrent episodes of sleep disturbance.” The Board notes that in the August 2015 rating decision, the RO stated that the assigned rating for the Veteran’s PTSD was based on, in part, chronic sleep impairment. As such, the Board finds that the issue of secondary service connection has been reasonably raised by the record and that a secondary service connection opinion is also warranted for this claim. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from August 2015. 2. Obtain all outstanding Vet Center records from January 2015. 3. Contact the Veteran and request that he either provides any outstanding private relevant treatment records, to include any records from Dr. J. or Poway Medical Center, or completes a release for such providers; if any releases are returned, attempt to obtain the identified records. 4. Afford the Veteran an appropriate VA examination to determine the current severity of his PTSD. 5. Afford the Veteran a VA examination with respect to his migraines claim. The examiner must provide an opinion addressing the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that migraines had their onset during service or are related to an in-service injury, event, or disease. The examiner’s attention is invited to: i. An April 2014 STR (during a period of ACDUTRA), which noted that the Veteran presented for headaches and that he “states that he has experienced [headaches] on and off for a couple of years.” ii. An August 2014 VA primary care treatment note, which stated that the Veteran complained of headaches and stated “[i]t is a chronic longstanding problem since his deployment,” which presumably was in reference to the Veteran’s 2010 Afghanistan deployment. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that migraines are due to or caused by the Veteran’s service-connected PTSD. (c.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that migraines have been aggravated (i.e., increased in severity) by the Veteran’s service-connected PTSD. With respect to items “b” and “c,” the examiner’s attention is invited to: i. A February 2014 Periodic Health Assessment form, which included the Veteran’s report of having frequent headaches and his report of “[h]eadaches…when stressed.” ii. An April 2014 STR (during a period of ACDUTRA), which stated that the Veteran “has had sleep disturbance for a few years” and noted an assessment of “headache syndromes: [signs and symptoms consistent with] migraine with recent exacerbation of [symptoms] – likely due to recurrent episodes of sleep disturbance.” The Board notes that in the August 2015 rating decision, the RO stated that the assigned rating for the Veteran’s PTSD was based on, in part, chronic sleep impairment. For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.