Citation Nr: 21023608 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 11-27 278 DATE: April 21, 2021 ORDER Entitlement to service connection for left arm pain and limited motion, to include as secondary to migraine headache pain, is denied. Entitlement to service connection for left leg pain and limitation of motion, is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety, and unspecified trauma-related disorder is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that left arm pain and limited motion, to include as secondary to migraine headache pain, began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that left leg pain and limitation of motion began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left arm pain and limited motion, to include as secondary to migraine headache pain, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for left leg pain and limitation of motion have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from March 1971 to March 1974. The Veteran’s final enlistment contract was for 3 years, signed in March 1971. He was separated from active service in March 1974 (2/11/2015 Military Personnel Record, pg. 3; 3/11/2020 Certificate of Release or Discharge From Active Duty; 2/11/2015 Military Personnel Record, pg. 3) and continued to be affiliated with the standby reserve until he was removed in January 1977 (2/11/2015 Military Personnel Record, pg. 2). The Veteran contends to have had active service after March 1974 that is not reflected by the record. This case is before the Board of Veterans’ Appeals (Board) from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at an October 2012 hearing. These matters were before the Board in May 2014, at which time the claim for service connection for PTSD was reopened and all matters were remanded for additional evidentiary development. They were remanded in June 2019 for additional development. Except as addressed in the remand section, the Board finds there has been substantial compliance with prior remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Appellate review may proceed. 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). 1. Left arm pain and limitation of motion, to include as secondary to migraine headaches. The Veteran contends that he has left arm pain, to include as secondary to his migraine headaches, or alternatively, resulting from an in-service physical assault. The Veteran is not service connected for migraine headaches, and therefore his claim of service connection for a left arm disability as secondary to migraine headaches cannot be granted. The question for the Board remains, whether the Veteran has a current left arm disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, specifically an in-service assault. In August 2010, the Veteran's bilateral wrist, elbow, and shoulder joints were examined and assessed as normal (8/17/2010 VA Examination, pg. 10). The examiner considered the Veteran’s in-service complaints of bilateral upper extremities arthralgias but found that the Veteran’s joints were normal. In contrast, a March 2020 VA examination confirmed the Veteran’s 2013 diagnosis of left arm derangement with functional loss due to pain (3/06/2020 C&P Exam, pgs. 1 and 3). Resolving doubt in favor of the Veteran, the Board finds that he has a current left arm disability, meeting the first element of service connection. The Veteran’s service treatment records reveal January 1973 complaints of upper quadrant pain, hand, elbow, and knee arthralgia, and a January 1974 complaint of right-hand pain noting a possible old fracture (1/26/2005 STR – Medical, pgs. 5 and 9). During his January 1974 separation physical, the Veteran complained of swollen or painful joints. The physician’s findings noted swollen or painful joints of the lower extremities intermittently since 1971 on prolonged standing or walking. There was no reported history of any injuries. No statements with regard to the Veteran’s left upper extremity were specified. Upon separation, the Veteran was clinically evaluated as normal (1/26/2005 STR – Medical, pgs. 9, 10, 12). In a written statement, the Veteran described a March 1973 assault by military police in Korea, who took all of his money and left him at the roadside. He reported seeking treatment for his arm (9/15/2010 VA 21-0781, Statement in Support of Claim for PTSD). The records do not reveal treatment as described by the Veteran, and as discussed previously, other evidence of record weighs against finding the in-service assault occurred as described. With regard to the left upper extremity, in a statement to the Social Security Administration, the Veteran indicated that his arm pain began in May 2001. In March 2008, a physician stated Veteran suffers migraine headaches. The Social Security records included a description that the left body pain commonly accompanies the headaches (11/18/2019 Medical Treatment Records - Furnished by SSA, pgs. 40 and 114). The Board finds this evidence weighs against the Veteran’s claim and suggests left upper extremity pain and disability did not begin until years after his active service. As previously referenced, the Veteran was afforded a VA examination in August 2010. At that time his left upper extremity was assessed as normal, despite consideration of the inservice complaints, and no nexus opinion was provided. The Veteran was afforded a March 2020 VA in-person examination. The examiner reviewed the Veteran’s records, considered the assault that the Veteran asserts occurred in 1970s, and the Veteran’s conflicting description of onset, as described in the Social Security Administration records. The examiner ultimately opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The Board has considered the Veteran’s lay statements that his current upper extremity pain is related to an in-service injury, event, or disease. While he is competent to describe his symptoms to include the onset, the record does not suggest he is competent to provide a nexus opinion regarding medically complex diagnoses, requiring understanding of anatomical relationships and interpretation of diagnostic medical testing. The record does not suggest he has medical training or credentials to make a diagnosis or provide a nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Moreover, the March 2020 medical opinion was proffered with an accurate understanding of the underlying facts of record and was accompanied by a clear rationale. For these reasons, it is deemed highly probative. The Board concludes that, while the Veteran has a current diagnosis of left arm derangement, the preponderance of the evidence weighs against finding that a left upper extremity disability began during service or is otherwise related to an in-service injury, event, or disease. As the preponderance of the evidence is against entitlement to service connection for a left upper extremity disability, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. See 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Left leg pain and limitation of motion. The Veteran contends he has left leg pain related to his active service, including as a result of a physical assault described to have occurred during service. The Veteran’s social security records suggests that he has associated his left lower extremity pain with his migraine headaches. The Veteran is not service connected for migraine headaches, therefore any claim of entitlement to service connection for a left leg disability as secondary to migraine headaches cannot be granted. No left leg diagnosis was found during the March 2020 VA examination for the Veteran’s left knee and lower leg. However, pain causing functional loss was noted. A diagnosis of a left leg crush injury with residual limp and pain with swelling was confirmed during a December 2014 VA examination (1/07/2015 C&P Exam, pg. 1). Finding a current disability, the question for the Board is whether the Veteran’s current left leg disability began during service or is at least as likely as not related to an in-service injury, event, or disease, including an in-service assault. During his January 1974 separation physical, the Veteran complained of swollen or painful joints. The physician’s findings provided swollen or painful joints of lower extremities intermittently since 1971 on prolonged standing or walking. There was no reported history of any injuries. Neither the examiner nor the Veteran referenced a left leg crush injury or a limp as described by the Veteran post-service. Upon separation, the Veteran’s lower extremities were clinically evaluated as normal (1/26/2005 STR – Medical, pgs. 9, 10, 12). The service treatment records do not reference an automobile accident or lower extremity crush injury. During his December 2014 examination, the Veteran stated that his leg was crushed between a car bumper and a wall, leaving him with a limp in 1975, which post-dates his active service. A November 2018 post service treatment note for a complain of back pain into his leg, references that the Veteran broke his leg years ago; no additional details were provided (11/14/2019 CAPRI, pg. 239). With regard to the left lower extremity, in a statement to the Social Security Administration, the Veteran indicated his leg pain began in May 2001. In March 2008, a physician stated Veteran suffers migraine headaches and the Social Security records included a description that the left body pain commonly accompanies the headaches (11/18/2019 Medical Treatment Records - Furnished by SSA, pgs. 40 and 114). The Board finds this evidence weighs against the Veteran’s claim, suggesting the Veteran’s left lower extremity pain and disability began after his active service had ended. The Veteran was afforded a December 2014 VA examination for the knee and lower leg (1/07/2015 C&P Exam, pg. 1). After the examination and review of the record, the examiner opined the Veteran’s leg disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event or illness. The December 2014 examiner noted that the medical records and the Veteran’s lay statements did not correlate. A July 2015 addendum opinion addressed whether the Veteran’s current left leg condition was caused by or related to his complaints of joint pain or swelling at separation. The examiner provided a negative nexus opinion, noting the statement on a separation examination in 1974 that the Veteran had joint pain when walking or standing. The examiner considered the Veteran’s assertion service from 1974 to 1977, finding no separation examination in 1977. The record does not suggest any periods of active service for VA purposes after March 1974. In 2010 the Veteran complained of left leg pain. X-rays of the left knee revealed mild degenerative joint disease of the left knee. An examination in 2014 revealed moderate varicosities and mild venous insufficiency in the left lower leg resulting in chronic edema in the left lower leg. The examiner explained the cause of the Veterans complaints of limping, pain, and swelling are multifactorial. His weight and venous insufficiency and varicosities contribute to the edema in the lower leg. The examiner attributed the Veteran’s limp to pain and DJD in the left knee, finding no continuing symptoms regarding his left leg from 1974 until 2010, almost 34 years later. The Veteran was most recently afforded a March 2020 VA examination for the knee and lower leg. The examiner reviewed the Veteran’s records, considered the assault that the Veteran asserts occurred in 1970s, and the conflicting description of onset, as described in the Social Security Administration records. The examiner ultimately opined the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The March 2020 medical opinion was proffered with an accurate understanding of the underlying facts of record and was accompanied by a clear rationale. For these reasons, it is deemed highly probative. The Board has considered the Veteran’s lay statements that his left leg pain is related to an in-service injury, event, or disease to include swelling in service and an in-service assault and crush injury. While the Veteran is competent to describe his symptoms to include the onset, the record does not suggest he is competent to provide a nexus opinion regarding medically complex diagnoses, requiring understanding of anatomical relationships and interpretation of diagnostic medical testing. The record does not suggest he has medical training or credentials to make a diagnosis or provide a nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The record reflects the Veteran has attributed his left lower extremity pain to a number of incidents. With regard to onset after an in-service personal assault, for reasons outlined previously, the Board does not find the occurrence of a personal assault causing leg injury to be credible. With regard to the crush injury, the Board finds, if a crush injury occurred, it did not occur during service, and therefore finds the medical opinions in that regard to be most probative. The Board finds the Veteran’s statements made to the Social Security Administration with regard to onset of his left leg pain in 2001 after an assault occurring in May 2001 to be the most credible of record and the most consistent with the medical evidence of record. The Board concludes that, while the Veteran has a current diagnosis of a left lower extremity crush injury with pain and swelling, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of a left lower extremity disability began during service or is otherwise related to an in-service injury, event, or disease. As the preponderance of the evidence is against entitlement to service connection for a left lower extremity disability, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. See 38 U.S.C.§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 3. Migraine headaches. 4. Memory loss. 5. Acquired psychiatric disability, to include PTSD, depressive disorder, anxiety, and unspecified trauma-related disorder. The Veteran contends he has migraine headaches and memory loss issues that began toward the end of his active service, as a result of a physical assault that the he described as having occurred while he was on leave in Korea (10/03/2012 Hearing Testimony, pgs. 6, 11, 12). The Veteran has also claimed entitlement for PTSD, recharacterized based on the record as a claim of service connection for an acquired psychiatric disability to include PTSD, depressive disorder, anxiety, and unspecified trauma-related disorder. The Veteran has asserted that his acquired psychiatric disorder results from herbicide agent exposure, and alternatively, from the described in-service assault (9/15/2010 VA 21-0781, Statement in Support of Claim for PTSD; 9/15/2010 VA 21-4138 Statement In Support of Claim; 7/20/2010 VA 21-0820 Report of General Information; 10/03/2012 Hearing Testimony, pg. 16). During his hearing, the Veteran asserted he may have been exposed to herbicide agents while visiting Vietnam and Korea, to include at the DMZ (10/03/2012 Hearing Testimony, pgs. 8 and 10). The record does not document assigned service in either Vietnam or Korea. The Veteran has suggested he had active service after March 1974. The Board finds the Veteran’s personnel records may be incomplete. Remand is therefore required for the AOJ to ensure all personnel records have been obtained, to include any documentation of the Veteran’s presence in either Korea or Vietnam. Evidence that the Veteran was in Korea would be relevant to the Veteran’s claims for acquired psychiatric disability, headaches, and memory loss. All of these claims are therefore remanded for additional development. The matters are REMANDED for the following action: 1. The AOJ should confirm all personnel records have been obtained, including but not limited any active service after 1974. All efforts in this regard should be documented in the claims file. (Continued on the next page)   2. The AOJ should pursue through all appropriate sources any evidence of the Veteran’s temporary duty to Korea or Vietnam, and any other evidence of travel to or presence in those locations. All efforts in this regard should be documented in the claims file. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.