Citation Nr: 21031705 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-30 966 DATE: May 24, 2021 ORDER Entitlement to service connection for respiratory condition is denied. Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for osteoarthritis, cervical spine, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran's respiratory condition began in, or is otherwise etiologically related to, his military service. 2. The preponderance of the evidence of record is against finding that the Veteran's migraine headaches began in, or are otherwise etiologically related to, his military service. 3. The preponderance of the evidence of record is against finding that the Veteran's osteoarthritis of cervical spine began in, or is otherwise etiologically related to, his military service. CONCLUSIONS OF LAW 1. The criteria for an entitlement to service connection for respiratory condition have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.307, 3.309. 2. The criteria for an entitlement to service connection for migraine headaches have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for an entitlement to service connection for osteoarthritis, cervical spine, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to March 1981 and from September 1987 to September 1992. This case comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in January 2020 and a transcript of that hearing is of record. Having reviewed the records, the Board finds there has been substantial compliance with the previous Board remand instructions, as adequate medical addendum opinions have been obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998). Neither the Veteran nor his representative raised any issues with the duty to notify or duty to assist, or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to compensable degree within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for respiratory condition The Veteran contends that his current respiratory condition is related to his active duty, to include environmental hazard exposure in the Gulf War, such as burn pits, burning oil fields, chemical nerve agents, and radiological hazards. Specifically, he testified that during his active duty period in the Middle East, he destroyed a nerve agent plant and contaminated materials in the burn pits, drove through the oil fields while they were on fire, and breathed in a lot of dust while driving through rugged terrain. Initially, while the Board notes that the Veteran originally filed a claim for service connection for respiratory condition, as related to gulf war syndrome (GWS), he does not have an undiagnosed illness. Review of the medical evidence provides that the Veteran has various diagnoses related to respiratory conditions, so these regulations do not apply. It is not in question that the Veteran has a current respiratory disability, as he has been diagnosed with various conditions, to include allergic rhinitis, bronchitis, and COPD. His service treatment records document multiple complaints, treatments, and diagnoses related to a respiratory condition. See service treatment records from August 1988 (complaints of cough and a diagnosis of a viral syndrome); from April 1989 (complaint of bronchitis); from May 1990 (complaints of coughing and chest congestion; diagnosis of sinusitis); from March 1992 (complain of sore throat, cough, dry throat, diagnosis of sinusitis). His first separation examination (March 1981) documented all clinically normal condition, and the Veteran also denied any chronic cough, shortness of breath, or pain or pressure in chest during that time. Although the Veteran reported sinusitis, chronic cough, and ear/nose/throat trouble during his latter (March 1992) separation examination, he still manifested clinically normal sinuses, lungs and chest during that examination. His DD-214 form shows that he served in Southwest Asia from September 1987 to September 1992 (ie. second active duty period), as confirmed by his Southwest Asia Service Medal, Bronze Service Star-1, Kuwait Liberation Medal, and Overseas Service Ribbon, among others. His military occupational specialty (MOS) during the second active duty period was a M1 Abrams Armor Crewman. In light of his MOS and DD-214 form, the Board finds his statements/reports regarding in-service environmental and hazardous exposures credible and consistent with the circumstances of his service. Thus, the question for the Board is whether any of the Veteran's current respiratory conditions began in service, whether continuity of symptomatology has existed since service, or whether any condition is otherwise related to service, to include in-service environmental exposures. Turning to the medical nexus opinions of record, the Veteran first underwent a VA examination in July 2012, during which time he was diagnosed with allergic rhinitis. He reported onset of his symptoms of sneezing, nasal congestion, and facial pressure as 1988, but also stated that he had almost annual episodes until 1985. He also reported being diagnosed with bronchitis in 1998, as well as his smoking history. Ultimately, the July 2012 VA examiner furnished a negative nexus opinion by concluding that there is no current respiratory condition per examination, and that the claimed possible acute bronchitis, as well as upper respiratory infections documented in his service treatment records, are usually self-limiting and unlikely to become chronic in nature and/or cause any complications/symptoms unless triggered by personal habits, such as smoking. However, as noted in the previous Board remand, because the examiner failed to consider the Veteran's report of environmental hazardous exposures in service, the Board remanded for another medical nexus opinion. In September 2020, VA examiner indicated that any respiratory conditions documented in service were only acute conditions, and that there is no objective evidence of a chronic condition, and ultimately concluded that a current chronic diagnosis cannot be confirmed based on the currently available records/on examination. However, because the Veteran has, in fact, been diagnosed with respiratory conditions during the appeal period, the Board remanded for another medical addendum opinion. In a January 2021 medical addendum opinion, even after taking into consideration the Veteran's MOS and his exposure to environmental hazards, the VA examiner provided a negative nexus opinion. The examiner opined that the conditions noted in service were only acute in nature, underlining his separation examinations documenting clinically normal conditions. The examiner also emphasized there being no evidence of chronicity of care, as well as the Veteran's extensive tobacco abuse history. The Board assigns the most probative value to this opinion, as this was furnished after extensive review of all records, to include the Veteran's reports/statements and post-service treatment records. His VA treatment records corroborate the Veteran's long history of smoking (July 2006 VA treatment records, last stopped smoking in 2006; see also August 2017 treatment records, used to smoke (about 40 years), quit about 9 years ago, but started using chewing tobacco about 3-4 weeks ago), which was noted to have attributed to his current respiratory condition. There is also no persuasive evidence showing the condition became chronic during service or manifested to a compensable degree within a presumptive period, and thus, continuity of symptomatology is not established. Although the Veteran testified that he has experienced continuous symptoms since separating from service, he never alleged that he was diagnosed with any chronic respiratory conditions soon after separating from service. In fact, contrary to the Veteran's report made during the 2012 VA examination, review of the evidence seems to suggest that the Veteran was first diagnosed with bronchitis and other respiratory conditions in 2004. Although the Board acknowledges the Veteran's belief that his respiratory condition is related to service, the Board finds that he is not competent to render such an opinion as the issue of nexus presents a complex medical question requiring the opinion of a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Specifically, while the Veteran is competent to report the symptoms he perceived directly through the senses, he has not been shown to have the appropriate medical training and expertise to offer a competent opinion on the etiology of respiratory disability. Again, he has not alleged any medical professional has ever suggested his respiratory condition began in or was related to service, so there is no medical evidence contrary to the negative VA opinion. As the preponderance of the evidence is against the claim of service connection for respiratory condition, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 2. Entitlement to service connection for migraine headaches The Veteran seeks service connection for his migraine headaches condition, as related to gulf war syndrome. He testified that headaches began in 1992, just after returning from Desert Storm and also claims that he has had "white outs" in service. As for post-service treatment, he alleged that he first sought care in 1995 from a private medical provider (which he testified is no longer available). It is not in question that the Veteran has a current disability, as he has been diagnosed with migraine variants and sinus headaches during the appeal period. The Veteran's service treatment records show complaints of and treatments received for headaches. See service treatment records from March 1990 (complaints of recurring headaches and assessment of possible ear infection); August 1991 (complaints of congestion and sinus headaches, and diagnosis of possible cold). During both March 1981 and March 1992 separation examinations, the Veteran manifested all clinically normal conditions, and he also denied head injury, frequent or severe headaches, and dizziness/fainting spells. The Veteran first underwent a VA examination in July 2012, during which time he was noted to have been diagnosed with migraine including migraine variants in 2000 and the Veteran himself reported the onset of his headaches as 2000, but the onset of sinus headaches as uncertain. He reported that his headaches were treated with medications in service. The examiner furnished a negative nexus opinion, attributing its cause to his upper respiratory conditions, and as for sinus headaches, explained that such are acute conditions that would be related to a season/infectious process and that there was a long lapse between the time the Veteran left service and he first sought treatment. However, the examiner at the time did not consider the Veteran's reports/statements of his in-service environmental hazardous exposures, which the Board finds credible and consistent with his service. Thus, the Board remanded for another medical nexus opinion. In September 2020, in furnishing a negative nexus opinion, the examiner concluded that there is no current chronic diagnosis despite noting "migraine including migraine variants" in the diagnosis section. In doing so, the examiner failed to take into consideration diagnoses provided during the pendency of the appeal period. Additionally, the examiner failed to opine as to a potential nexus between his headaches condition and his exposure to environmental hazardous chemicals during his active duty period, as requested in the March 2020 Board remand directives. Accordingly, the Board again remanded for obtaining another medical addendum opinion. Post-Board remand, a new medical addendum opinion was obtained in January 2021, in which the VA examiner provided a negative nexus opinion. Despite acknowledging in-service environmental hazards and headaches documented in service treatment records, the examiner pointed out that the Veteran manifested normal neurological conditions at separation, and that there was no indication of diagnosis of headaches conditions in service. The examiner attributed migraines to primary neuronal dysfunction, and added that the current medical literature does not support a plausible nexus between migraine/sinus headaches to exposure to environmental hazards. The Board assigns a high probative value to this opinion, as it was provided after extensive review of all records, to include his service treatment records, post-service treatment records, and lay statements, substantiated by concrete factual findings. While the Veteran is competent to provide statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The relationship between military service and headaches disability diagnosed many years after separation from service is a complex question, not a simple one, and under the facts of this case, not a question that can be answered by a lay person. As such, the Veteran's statements to this effect are lacking in probative value. There is no medical evidence contrary to the VA opinion. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection. Therefore, the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. 3. Entitlement to service connection for osteoarthritis, cervical spine The Veteran contends that his current neck condition is related to his injuries in service and also due to his military occupational specialty (MOS) during his active duty in the Gulf War. Specifically, he claims that he had to drive for long hours in rugged terrain, which also required a lot of fast takeoffs and short stops. He also claimed that he had to wear full march gear during Desert Storm, and that he would wake up feeling strain in his neck. He also testified to two in-service incidents where he injured his back and was treated only for his backbut he now speculates he might have injured his neck as well. As for any post-service treatment, he claims that he sought treatment beginning in 1997 from a private chiropractor, who told him that the x-ray of his neck showed advanced arthritis beyond his age (but the Veteran also noted that this x-ray is no longer available). It is not in dispute that the Veteran has a current disability. During the appeal period, he has been diagnosed with osteoarthritis of cervical spine. His service treatment records are silent as to any complaints, diagnoses, and treatments related to his cervical spine. While his medical records show treatments received for lower back injury, consistent with the Veteran's statement, there is otherwise no indication that this injury resulted in or caused any cervical spine conditions. His separation examinations consistently show clinically normal musculoskeletal conditions, even when the Veteran reported swollen and painful joint (during the latter separation examination). The Veteran first underwent a VA examination in July 2012, during which time he reported having severe pain in 1997, and was diagnosed with cervical spine osteoarthritis. However, no medical nexus opinion was provided. In September 2020, the Veteran was afforded another VA examination, and he reported injuring his neck "since 1997". However, the examiner concluded that neither direct nor secondary service connection opinions could be furnished, noting that a current chronic diagnosis cannot be confirmed with currently available records. Because the Veteran has been diagnosed with osteoarthritis during the appeal period, the Board remanded for another medical nexus opinion. In January 2021, a VA examiner furnished both direct and secondary service connection opinions (negative nexus opinions), after reviewing all pertinent records. First, regarding direct service connection, the examiner explainedeven after acknowledging the Veteran's MOS of M1 Abrams Armor Crewmanthat the Veteran manifested normal spine during his separation exams, that there was no evidence of arthritis in service, and that his arthritis was diagnosed many years after service. As for secondary service connection opinion, the examiner stated that his service-connected lumbar spine arthritis and cervical spine arthritis are not medically related, emphasizing that there is no credible medical evidence or literature establishing pathophysiology between the two, and thus, denying any plausible causation or aggravation. The Board assigns the most probative value to this medical addendum opinion, as it was provided after reviewing all pertinent records, substantiated by concrete factual findings. Furthermore, the Veteran has not asserted that he has been experiencing continuous symptoms of neck condition since separation or that he was diagnosed with osteoarthritis soon after separating from service. It appears that the Veteran was first diagnosed with osteoarthritis a few years after separating from service, and the fact that the Veteran himself consistently reported the onset of pain/neck condition as 1997, several years after service, tends to weigh heavily against the finding that the Veteran has had continuous neck symptoms since separating from service. There is no persuasive evidence showing the condition became chronic during service or manifested to a compensable degree within a presumptive period, and continuity of symptomatology is thus not established. The Board acknowledges that the Veteran believes his neck condition is related to his military service. While he is competent to report any symptoms, he is not competent to provide a medical opinion linking his neck condition with service as such requires complex medical knowledge and training that are generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no medical evidence contrary to the VA opinion In summary, the Board concludes that the evidence preponderates against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the preponderance of the evidence is against the claim of service connection for neck condition, the benefit-of-the-doubt doctrine does not apply, and his claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee 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.