Citation Nr: 21032780 Decision Date: 05/28/21 Archive Date: 05/27/21 DOCKET NO. 16-39 857 DATE: May 28, 2021 ORDER Service connection for a back disability, characterized as thoracic kyphoscoliosis, multi-level degenerative disc disease, and spinal stenosis, is granted. Service connection for a migraine headache disability, as secondary to the service-connected persistent depressive disorder with anxious distress and panic attacks and the service-connected cervical strain, is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's back condition is related to his service. 2. The evidence is in relative equipoise as to whether the Veteran's migraine headache disability is related to his service-connected persistent depressive disorder with anxious distress and panic attacks and the service-connected cervical strain. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.303(d). 2. The criteria for entitlement to service connection for a migraine headache disability, as secondary to the service-connected persistent depressive disorder with anxious distress and panic attacks and the service-connected cervical strain have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to October 1987. This current appeal arises from an April 2013 rating decision. In November 2018 and April 2020, the Board remanded this appeal for further evidentiary development. During the pendency of this current appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for a persistent depressive disorder with anxious distress and panic attacks. As the Veteran has not yet filed a NOD contesting either the effective date or the level of compensation assigned following the grant of service connection, this issue is no longer part of the current appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection requires evidence showing that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). The evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). To prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Back disability, characterized as thoracic kyphoscoliosis, multi-level degenerative disc disease, and spinal stenosis The Veteran seeks service connection for a back disability. He asserts that this condition is related to his in-service injury and complaints. Evidence of record establishes that the Veteran has current back disability diagnoses, to include thoracic kyphoscoliosis, multilevel degenerative disc disease (DDD), and spinal stenosis. Regarding an in-service injury or event, the service treatment records document multiple complaints and treatment regarding back pain. In July 1987, the Veteran complained of back pain. It was noted that he experienced back pain for over one year. It was noted that he had thoracic spine (T-spine) scoliosis and chronic back pain. In August 1987, he complained of mid back pain since a "mobile accident." The assessment noted was "structure scoliosis, congenital." See March 2013 Service Treatment Records (STR). In September 1987, the Medical Board found the Veteran to be unfit for service due to thoracic kyphoscoliosis. In that determination, it was reported that the Veteran was diagnosed with scoliosis at about 10 or 11 years of age. The report continued that he had no pain until after a motor vehicle accident prior to entering service. During his active service, his back pain gradually increased, causing problems with all activities. The Medical Board determined that the physical disability existed prior to enlistment and was not aggravated by his service. See September 2011 Service Treatment Records (STR). Initially, and in this regard, the Board notes that a veteran is presumed 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 examination for acceptance and enrollment into service, unless clear and unmistakable evidence demonstrates that the injury or disease existed prior to service. 38 C.F.R. § 3.304 (b). The issue of whether the presumption of soundness applies occurs when a disease or injury is not noted on the entrance examination. In order to rebut the presumption of soundness, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. If it has been established by clear and unmistakable evidence that a disease or injury existed prior to service, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the presumption of soundness has not been rebutted, then service connection is considered on a direct basis, without consideration of aggravation of a preexisting injury. Wagner v. Principi, supra. Here, on the November 1986 enlistment examination, the Veteran's spine was noted to be normal. Because the record in this case establishes that the Veteran was "examined, accepted, and enrolled for service" and that the entrance examination revealed no abnormalities regarding his back, the presumption of sound condition attaches with respect to Veteran's back condition. Now, the burden of proof is on VA to rebut the presumption of soundness. A November 2012 VA examiner opined that there was no evidence of aggravation of the pre-existing condition due to his active service. The examiner stated that the Veteran's scoliosis was a congenital condition. A February 2019 VA examiner opined that there was no objective evidence of clear and unmistakable aggravation beyond the natural progression of the Veteran's back condition. The examiner reiterated that the Veteran's condition was congenital. The examiner noted the Veteran's in-service treatment of his back condition. In November 2019, the Veteran stated that the Medical Board examiner's conclusion regarding being diagnosed with scoliosis at 10 or 11 years old was a false statement. See November 2019 Correspondence. Additionally, the Veteran's mother expressed that the Veteran was never diagnosed with scoliosis prior to entering the military. See November 2019 Buddy/Lay Statement. The Board determines that the evidence does not clearly and unmistakably show that the Veteran's back condition pre-existed service. It is not clear or unmistakable that the Veteran entered service with scoliosis. His spine was noted to be in normal condition in November 1986. Additionally, the Veteran and his mother asserts that he was never diagnosed with scoliosis prior to entering service. This puts the evidence is in relative equipoise regarding whether there was a pre-existing back condition. This does not rise to the standard of clear and unmistakable evidence. Alternatively, even if the Veteran had pre-existing back condition, the evidence does not clearly and unmistakably show that the condition was not aggravated by his service. The medical opinions do not provide thorough rationale to explain why the Veteran's back condition was not clearly and unmistakably aggravated by his service. The examiners opine that there was no objective evidence of aggravation during service but note the multiple complaints and treatment of the Veteran's back condition. The evidence shows that the Veteran was discharged from service due to his back condition. Accordingly, the Board finds that the presumption of soundness has not been rebutted. As the presumption of soundness has not been rebutted, service connection will be considered on a direct basis. In this regard (as to whether the Veteran's back condition is related to his service), the July 2020 VA examiner opined that it was less likely than not that his condition was related to his service. The examiner noted that the records showed complaints of back pain during service but was unable to show chronicity since 1987. The examiner concluded that the DDD was diagnosed years after separation from service, therefore concluding that his back condition was not due to his service. The examiner does not provide a thorough supporting rationale. The examiner simply provides a restatement of the evidence, without explaining why the Veteran's in-service treatment of his back is not related to the development of his current back condition. The Board notes that significant time has been used to develop the evidentiary record, specifically to obtain adequate medical opinions, in order to resolve the uncertainties in this matter. While those uncertainties have not been resolved, the Board declines to remand this matter any further and determines that there is enough competent evidence to favorably resolve this case. After a thorough consideration of all of the evidence of the record, the Board finds that the evidence is at least in relative equipoise regarding as to whether the Veteran's back condition is due to his active service. The evidence shows that the Veteran experienced the same back symptoms in service and post service. He also expressed that he had not sought treatment for his back condition since service until 2013, which could be an explanation for the lack of medical records showing the chronicity of care since 1987. Although these symptoms from service cannot with medical certainty be attributed to the Veteran's later developed DDD or spinal stenosis, when thoroughly considering his accounts of his symptoms during and after service that he was diagnosed with DDD and spinal stenosis based on similar symptoms experienced in-service and the lack of findings of any intercurrent causes, the evidence raises a reasonable doubt as to the initial onset of the Veteran's back condition. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that his diagnosed back disability is related to his service. The criteria for service connection for a back disability have been met. Migraine headache disability, as secondary to service-connected disability The Veteran seeks service connection for migraine headaches. He asserts that his headaches are related to his service-connected persistent depressive disorder with anxious distress and panic attacks and his service-connected cervical strain. Regarding whether there is a nexus, the July 2020 VA examiner opined that it was less likely than not that the Veteran's migraine headaches were related to his psychiatric, or cervical spine, condition. Rather, the examiner indicated that the Veteran's migraines, psychiatric disorder, and his cervical spine condition had different pathologies. The examiner acknowledged that cervical pain can aggravate headaches but was unable to say if the headaches are directly related to his cervical strain. The examiner also provided that migraine triggers include stress, physical factors, and sleep changes. The examiner's rationale is not sufficient enough to support the negative nexus conclusion rendered. Firstly, the examiner does not provide a separate opinion addressing aggravation. More importantly, while the examiner concluded that there was no nexus between the Veteran's migraine headaches and his service-connected psychiatric disorder and cervical spine conditions, the examiner proffered that cervical pain could aggravate headaches without explaining why this medical principle was not applicable in the Veteran's case. Additionally, the examiner expressed that stress and sleep changes could trigger migraine headaches. The Veteran's psychiatric symptoms include experiencing anxious distress and chronic sleep impairment. The examiner failed to address whether these symptoms causes or aggravates the Veteran's headaches. After a thorough consideration of the evidence of the record, the Board finds that the evidence is in relative equipoise as to whether the Veteran's migraine headaches are caused, or aggravated, by his service-connected conditions. Although the July 2020 VA examiner provided a negative nexus opinion, the examiner does provide support of a relationship between the conditions. As previously noted herein, significant time has been used to obtain adequate medical opinions regarding the nature and etiology of the Veteran's migraine headaches. However, the record still obtains inadequate opinions. Considering what has been proffered in the opinions, taken with the available evidence of the record, there is enough competent evidence to raise a reasonable doubt regarding whether these conditions caused or aggravated his migraine headaches. Resolving reasonable doubt in favor of the Veteran, the Board finds that his migraine headaches are related to his service-connected psychiatric, and cervical spine, disorder. Accordingly, the Board determines that the criteria for service connection for a migraine headache disability have been met on a secondary basis. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.