Citation Nr: 21031746 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-25 251 DATE: May 24, 2021 ORDER Entitlement to service connection for migraine headaches, including as due to in-service exposure to environmental hazards, is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a cervical spine disability (claimed as cervical thoracic sprain) is denied. Entitlement to service connection for a lumbosacral spine disability is denied. Entitlement to service connection for numbness and tingling of the left upper extremity, including as due to a service-connected disability, is denied. Entitlement to service connection for radiculopathy of the left lower extremity, including as due to a service-connected disability, is denied. Entitlement to service connection for radiculopathy of the right lower extremity, including as due to a service-connected disability, is denied. Entitlement to service connection for a right hand disability, to include carpal tunnel syndrome (CTS), is denied. REMANDED Entitlement to service connection for an eye disability (claimed as vision loss) is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran's migraine headaches are not related to active service or any incident of service, to include exposure to environmental hazards during the Gulf War. 2. The record evidence shows that the Veteran's right shoulder disability, cervical spine disability, and low back disability are not related to service. 3. The record evidence reflects that the Veteran does not have a current diagnosis of numbness and tingling of the left upper extremity, peripheral neuropathy of the right upper extremity or of the bilateral lower extremities, or a right hand disability, including carpal tunnel syndrome, which could be attributed to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches, including as due to in-service exposure to environmental hazards, have not been met. 38 U.S.C. §§ 1110, 1117, 1118, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2019). 2. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 4. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2019). 5. The criteria for service connection for numbness and tingling of the left upper extremity, including as due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 6. The criteria for service connection for radiculopathy of the left lower extremity, including as due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 7. The criteria for service connection for radiculopathy of the right lower extremity, including as due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 8. The criteria for service connection for right hand disability, including carpal tunnel syndrome, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to February 1990 and from October 1990 to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2014 and April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters previously were remanded by the Board in April and November 2019. Service Connection 1. Entitlement to service connection for migraine headaches, including as due to in-service exposure to environmental hazards, The Veteran seeks service connection for migraine headaches. He asserts that his migraine headaches are related to his service in the Persian Gulf War. He was afforded a July 2019 VA Gulf War examination in which the examiner concluded that the Veteran did not have any undiagnosed conditions. The Board notes that the Veteran's report of migraine headaches has been attributed to known clinical diagnoses that include cervical arthritis, sleep apnea, sinusitis, and/or allergies. See June 2019 VA examination report. As his migraine headaches have been associated with other clinical diagnoses, the Gulf War Veteran presumption of service connection under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not apply in this matter. See generally 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Although the Gulf War presumption does not apply in this case, the Veteran may be entitled to service connection for migraine headaches on a direct basis. See generally 38 C.F.R. §§ 3.303, 3.304. He was afforded a VA headaches examination in June 2019. The examiner documented his report that he had recurrent headaches lasting two to three hours since returning from the Gulf War in 1991. He further reported that the pain blurred his vision at times and forced him to stay in a dark area until the headache resolved. The examiner cited to the June 2017 scan results to note that the Veteran had obstructed sinuses. The examiner opined that the headaches were less likely than not due to his service. The examiner reasoned that the headaches were likely caused by chronic sinusitis, cervical arthritis, and sleep apnea. The rationale for this opinion also was based on a review of relevant medical literature. After a review of the record, the Board finds that the preponderance of the evidence is against granting the claim of service connection for migraine headaches, including as due to in-service exposure to environmental hazards. The Veteran currently is diagnosed with cervical arthritis, sleep apnea, and sinusitis, which are known clinical diagnoses and not an "undiagnosed illness" which could be attributable to in-service exposure to environmental hazards. There also are no medical opinions of record linking the migraine headaches to service on a direct basis. The only competent medical opinion of record addressing the contended etiological relationship between the current migraine headaches and service is that of the VA examiner which is against the claim. In this regard, the Board finds the opinion of the June 2019 VA examiner to be the most probative evidence on the issue of whether the migraine headaches are related to active service. This opinion was based upon a comprehensive review of the claims file, examination of the Veteran, and a review of relevant medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran contends that his headaches are related to his military service, there is no indication that he has specialized training in diagnosing such a disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 77 (Fed. Cir. 2007). The diagnosis of headaches requires medical testing and training to identify. The Veteran's lay opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned no probative value. In summary, the Board finds that service connection for migraine headaches, including as due to in-service exposure to environmental hazards, is not warranted. 2. Entitlement to service connection for a right shoulder disability, a cervical spine disability (claimed as cervical thoracic sprain), and for a lumbosacral spine disability The Veteran asserts that he has a right shoulder disability, cervical spine disability, and lumbosacral spine disability due to injury in service. Specifically, he reports his right shoulder, cervical spine, and lumbosacral spine disabilities stem from a car accident that occurred during service. Service treatment records are negative for any complaints, treatment, or diagnosis of low back, neck, and right shoulder disorders. An April 1991 military personnel record documents that the Veteran was released from active duty and assigned to reserve service. The April 1991 military personnel record also documented that the Veteran was not released for any physical disability. Post-service treatment records document that in May 1998, a private clinician noted the Veteran's history of foot pain, sprained ankles, broken bones and noted no additional complications at the time. A December 1993 treatment record contained a Veteran's application for employment as a corrections officer. The application description noted that he was very open about his recent shortcomings at the time, which included problems with drugs. In a February 2000 Form 9, the Veteran appealed a claim for multiple joint pain, to include back spasm. He asserted that his back condition was related to the Persian Gulf War. In an August 2017 VA treatment record, the Veteran reported that he experienced low back pain, neck pain, and right arm pain since a motor vehicle accident during service in 1989 or 1990. He also reported that he did not seek care initially but noted gradual progression. The Board has considered whether service connection for lumbar spine, cervical spine, and right shoulder disorders are warranted on a presumptive basis, to include on the basis of a continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested arthritis to any degree within the one year following his discharge from active duty in the lumbar spine, cervical spine, or right shoulder. It was not until August 2000, or nine years after his service separation, that he first sought treatment for his back, neck, or right shoulder. The August 2000 VA treatment record documents that he complained of pain in his right shoulder and the clinician noted that the only previous treatment relating to arthritis was relating to a right hip. In August 2000, he also requested re-evaluation for his right wrist and hand injury. Further, the August 2000 VA clinician documented the Veteran's medical history which did not contain any complaints or treatment for a back, neck, or right shoulder condition. While the Board has considered the lay statements regarding a continuity of lumbar spine, cervical spine and right shoulder pain since service, the contemporaneous evidence fails to demonstrate that arthritis manifested within his first post-service year. It also shows that he sought treatment on multiple occasions and discussed his medical history on numerous occasions but did not mention any car accident during service or any back, neck, and right shoulder symptoms. Moreover, the reports regarding a continuity of symptomology have been found to not be credible. Therefore, the Board finds that service connection is not warranted for lumbar spine, cervical spine, and right shoulder disorders on a presumptive basis. As to direct service connection, an August 2019 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's back, neck, or right shoulder disabilities were incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the service medical records did not indicate that the Veteran was involved in a car accident or that he suffered any recurrent and chronic pain for his back, neck, and right shoulder during service. The VA examiner also noted that the Veteran would have needed to have severe symptoms during service to cause his current back, neck, and right shoulder disabilities. The VA examiner further reasoned that there was no evidence of hospitalization, rest requirement, physical therapy, days off of work, or x-rays and CT scans, all of which would be indicative of problems with the Veteran's back, neck, and right shoulder during service. The Board notes that this opinion had clear conclusions and supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran's assertions that he has chronic lumbar spine, cervical spine, and right shoulder disorders that are related to service. He is competent to report the type of musculoskeletal symptoms he experienced in and after service as this is observable through the five senses. See Layno v. Brown, 6 Vet. App. 465 (1994). A determination as to the appropriate diagnosis of the symptoms, and the etiology thereof, is a complex medical determination which goes beyond lay observation of symptoms. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship and requires the administration and interpretation of diagnostic testing, to include X-rays. The Veteran does not contend and the evidence does not show that he has any medical training. As such, the question of etiology in this case may not be addressed competently by lay evidence. In other words, the opinions of the Veteran (as a lay person) are not probative evidence on the issues of whether any of the claimed disabilities is related to active service. In addition to addressing the competency of the Veteran's statements, the Board also must address their credibility in adjudicating the currently appealed claims. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran did not discuss or mention an in-service car accident resulting in back, neck, and right shoulder injury until after he filed his claims for compensation years later. In fact, in a February 2000 Form 9, he alleged that his back spasms were caused by his Persian Gulf service. Not only did he later assert that his low back condition was due to a car accident in service, he did not claim any neck and right shoulder problems stemming from service in the February 2000 Form 9. Further, the May 1998 and August 2000 treatment records document his medical history but do not include any treatment for or problems relating to the back, neck, and right shoulder. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board finds the Veteran's statements lack credibility as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest. Thus, these statements are entitled to no probative value on the issue of whether any of the claimed disabilities is related to active service. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony). In summary, the Board finds that service connection for a right shoulder disability, a cervical spine disability, and for a lumbosacral spine disability is not warranted. 3. Entitlement to service connection for numbness and tingling of the left upper extremity, radiculopathy of the left lower extremity, and for radiculopathy of the right lower extremity The Veteran contends that he suffers from numbness and tingling of the left upper extremity due to his claimed cervical spine disability. He also contends that he experiences radiculopathy of the bilateral lower extremities due to his claimed lumbar spine disability. The Veteran's service treatment records are absent for any discussion of complaints or treatment for neurological conditions of the left upper extremity and bilateral lower extremities, to include radiculopathy. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); and Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). A review of post-service outpatient treatment records dated in December 2016 and in September 2019 shows recurring complaints of sensory problems and pain stemming from cervical spine disability and lumbar spine disability. A May 2019 VA treatment record notes an assessment of cervical spondylosis with possible radiculopathy. In a September 2019 VA treatment record, the Veteran complained of numbness and tingling in the bilateral upper extremities, after which the VA clinician noted neck pain/ DDD with radiculopathy/strain under the assessment and plan section. In a June 2019 VA examination for the lumbar spine, the examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Straight leg raising test, sensory exam, and reflex exam were all normal for the bilateral lower extremities. In a July 2019 VA examination for the cervical spine, the examiner noted that the Veteran had signs and symptoms of radiculopathy in the right upper extremity. The examiner specifically noted that there were no other signs or symptoms of radiculopathy. In a separate July 2019 VA examination, the examiner documented the Veteran's report that he was in a car accident during service that resulted in him injuring his neck and experiencing numbness down his arms since that accident. The examination found normal radicular function of the left upper extremity and no noted deficiencies. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced numbness and tingling of the left upper extremity or radiculopathy in either of the lower extremities at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). Although VA treatment records document the Veteran's complaints of symptoms and notations of radiculopathy, the Board notes that such notations were based only on the Veteran's reports. Similarly, an assessment of possible radiculopathy was noted in a May 2019 VA treatment record. There is nothing in the medical record to suggest that the Veteran was diagnosed with radiculopathy of the upper left extremity or bilateral lower extremities. Specifically, three separate VA examinations in June 2019 and July 2019 found no signs or symptoms of radiculopathy of the left upper extremity and bilateral lower extremities and objective testing reflected normal results. Accordingly, as the probative and competent medical evidence does not reflect a current disability during the appeal period, the first element of a service connection claim is not met. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for numbness and tingling of the left upper extremity, radiculopathy of the left lower extremity, and for radiculopathy of the right lower extremity. In summary, the Board finds that service connection for numbness and tingling of the left upper extremity, radiculopathy of the left lower extremity, and for radiculopathy of the right lower extremity is not warranted. 4. Entitlement to service connection for a right hand disability, to include carpal tunnel syndrome (CTS), is denied. The Veteran contends that he is entitled to service connection for a right-hand disability, to include CTS. Initially, the Board notes that the Veteran is already service connected for residuals of a fracture of the right fourth metacarpal. On a December 2015 private examination, the examiner noted that the Veteran had residuals of a fracture of the fourth metacarpal of the right hand and that he has pain in that area that intensifies with grip and use. A June 2017 VA treatment documented a negative test for carpal tunnel and a negative test for median nerve compression. The VA clinician noted that there were no areas of tenderness and that there was a full range of motion of fingers with no evidence of stenosing flexor tenosynovitis or triggering. In a June 2019 VA examination, the examiner noted that the Veteran did not have a current right hand disability due to service and that the Veteran did not have carpal tunnel and that the lack of a diagnosis was supported by EMG testing. On a separate VA hand and finger conditions examination, the examiner diagnosed the Veteran with residuals of distal fourth metacarpal fracture and residuals of a thumb dislocation. The examiner noted that the Veteran's residuals of the right thumb dislocation was from 2008. The Board concludes that the Veteran does not have a current diagnosis of a right hand disability, to include carpal tunnel syndrome, and has not had one at any time during the pendency of the claim. Id. Without evidence of a current right-hand disability, including CTS, the Board need not address the other elements of service connection. The Board notes that the Veteran is already service-connected for residuals of a fracture of the fourth metacarpal of the right hand and that the only pain noted for the right hand was associated by the December 2015 private examiner to be related to the fracture of the fourth metacarpal tunnel. The only other diagnosed right hand disability is noted to be a residual of a right thumb fracture suffered in 2008, approximately 17 years after service. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for a right hand disability, to include carpal tunnel syndrome. In summary, the Board finds that service connection for a right hand disability, to include carpal tunnel syndrome, is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for an eye disability (claimed as vision loss) is remanded. The Veteran contends that he incurred an eye disability (which he characterized as vision loss) during active service and experienced continuous post-service disability. A June 1987 service treatment record (STR) reflects that he sought treatment for left eye pain and reported his left eye being sensitive to light. A March 1988 STR reflects that he had left eye swelling. A February 1998 post-service treatment record documents continued problems with blurry vision. In April 2019, the Board cited to the December 2018 private examiner's report and remanded the claim of disability of the eye, claimed as vision loss, as being intertwined with the issue of headaches. The Board notes that, although the Veteran has claimed that he experienced blurry visions after headaches, the medical evidence discussed above indicates that he experienced eye problems during service and that he continued to have similar problems almost 8 years after leaving service. In light of the Veteran's contentions and the record evidence, the Board finds that, on remand, he should be scheduled for examination to determine the nature and etiology of the eye disability. The RO also should obtain the Veteran's updated treatment records. The matter is REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of any eye disability. The claims file and a copy of this REMAND must be provided for review. Based on a review of the claims file and the results of the Veteran's physical examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an eye disability, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each eye disability currently experienced by the Veteran, if appropriate. If any requested opinion cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for an eye disability, alone, is insufficient rationale for a medical nexus opinion. 3. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.