Citation Nr: 22018555 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-21 736 DATE: March 29, 2022 ORDER Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a headache condition is granted. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. The competent and probative evidence of record establishes that the Veteran's right shoulder disability is etiologically related to military service. 2. The competent and probative evidence of record establishes that the Veteran's claimed headache condition is etiologically related to military service. 3. The competent and probative evidence of record establishes that the Veteran's back disability is etiologically related to military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.303, 3.304. 2. The criteria for entitlement to service connection for a headache condition have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.303, 3.304. 3. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § § 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1951 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held in this matter in December 2019 before a Veterans Law Judge, however, due to technical difficulties a transcript was unable to be produced. The Veteran subsequently requested a new hearing, which was held before the undersigned Veterans Law Judge (VLJ) in May 2021. A transcript has been associated with the record. The Board recognizes that in February 2021 correspondence, the Veteran's representative made a request for documentation regarding the qualifications of the VA examiners who provided opinions on the issues in this matter under Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019), which has not been fulfilled as of the date of this decision. However, as this decision constitutes a full grant of benefits sought on appeal, the Board finds that in this instance not providing the requested information under Francway does not constitute prejudicial error against the Veteran. 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. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected left shoulder disability, The Veteran is seeking service connection for a right shoulder disability, which he contends is either directly related to active duty service or is secondary to his service-connected left shoulder disability. A review of the Veteran's service treatment records (STRs) reveals an in-service diagnosis of right shoulder pain. Additionally, the Veteran's STRs demonstrate that the Veteran experienced a fall from a missile launcher will on active duty service. Accordingly, the Board finds that the Veteran experienced a qualifying in-service disability or event for VA purposes. The Veteran received a VA examination regarding the etiology his claimed right shoulder disability in June 2019. The examiner diagnosed the Veteran with osteoarthritis of the right shoulder, but opined that the condition was "less likely as not incurred in, or caused by the Veteran's treatment for left shoulder pain due to muscle strains while on active duty." By way of rationale, the examiner relied on a lack of documented right shoulder complaints in service. The examiner did not address the Veteran's noted in-service treatment for right shoulder pain, nor did the examiner address the Veteran's theory that his in-service fall from a missile launcher resulted in his right shoulder disability. In support of his claim, the Veteran submitted an opinion from a private orthopedic surgeon dated January 2022. The private physician opined that the Veteran's claimed right shoulder disability evolved from the same in-service fall that resulted in his service-connected left shoulder disability. Specifically, the physician stated that the "[r]ight shoulder impairment is also present both by reason of injuries sustained in the service connected injury on the missile launching device and compensatory changes over the years in response to left shoulder restrictions in function." For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that a medical report without "a reasoned medical explanation" lacks probative value). Further, examiners simply are not free to ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As noted above, the June 2019 VA examiner did not address the Veteran's in-service right shoulder complaints, nor did the examiner address the Veteran's theory that his in-service fall from a missile launcher resulted in his right shoulder disability. Accordingly, the Board finds this opinion to be inadequate for determining entitlement to service connection. Conversely, the Board finds the January 2022 private medical opinion from an orthopedic surgeon to be highly probative as it presents the medical opinion of a competent expert, informed by the record, and presented with a sound discussion of the examiner's rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing and affording the Veteran all benefit of the doubt, the Board finds that the competent and credible evidence of record supports a finding that the Veteran's claimed right shoulder disability began in service and has continued since that time. Accordingly, service connection is warranted. As service connection has been granted for a right shoulder disability on a direct basis, the Board finds that discussion of the Veteran's alternative theory of entitlement is unnecessary at this time. 2. Entitlement to service connection for a headache condition The Veteran is seeking service connection for a headache condition, which he asserts began in and has continued since active duty service. The Board notes that during the May 2021 hearing before the undersigned VLJ, the Veteran testified that he has experienced headache pain and symptoms consistently since active duty service. A review of the Veteran's STRs reveal complaints and treatment for headaches while on active duty service. Accordingly, the Board finds that the Veteran experienced a qualifying in-service incurrence. In April 2017, the Veteran was afforded a VA examination regarding the nature and etiology of the Veteran's claimed headache condition. The examiner diagnosed the Veteran with a migraine condition, but opined that the condition was not related to the headaches experienced by the Veteran during service. No further explanation was provided for this opinion. In support of his claim, the Veteran submitted a medical opinion from private physicians. In a December 2019 correspondence, Dr. M.F. provided the following opinion: The Veteran's headaches began in service in the 1960s. He had a lot of falls doing his job and often hit his head and was seen medically for his headaches. The headaches were generally fronto-parietal in location and have continued to the present time. The Veteran takes aspirin on a regular basis for these headaches. It is at least as likely as not that his headaches began in service and therefore related to service. As noted above, the April 2017 examiner failed to provide any explanation or rationale for the stated opinion. Conversely, the Board finds the December 2019 private medical opinion to be highly probative as it presents the medical opinion of a competent expert, informed by the record, and presented with a sound discussion of the examiner's rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing and affording the Veteran all benefit of the doubt, the Board finds that the competent and credible evidence of record supports a finding that the Veteran's claimed migraine headaches began in service and have continued since that time. Accordingly, service connection is warranted. 3. Entitlement to service connection for a back disability Regarding the Veteran's claimed back disability, the Veteran asserts that his present back disability is the result of the aforementioned fall from a missile launcher while on active duty. A review of the Veteran's STRs show numerous instances of treatment for low back pain. Accordingly, the Board finds that the Veteran had a qualifying in-service injury. The Board notes that in the May 2021 hearing before the undersigned VLJ, the Veteran testified that he has experienced back pain and symptoms consistently since falling from a missile launcher during active duty service. In June 2019, the Veteran received a VA examination regarding the nature and etiology of his claimed back disability. The examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine. The examiner opined that the diagnosed conditions were "less likely than not incurred in or caused by the Veteran's treatment for low back pain during military service." By way of rationale, the examiner stated the following: On active duty, he experienced several widely spread out episodes of acute low back pain that are consistent with muscle strains, all of which resolved without the development of chronic pain, or residual neurologic sequelae. As such, it is more likely as not that the Veteran's current complaints and physical findings, which correlate with the bony changes seen on imaging are due to age-related wear-and-tear, rather than the non-specific strains from four decades earlier. In support of his claim, the Veteran submitted two medical opinions from private providers, Dr. M.F. and Dr. F.G.. In a December 2019 correspondence, Dr. M.F. stated the following: The Veteran was seen in service for low back pain on at least three occasions starting in 1953. His low back pain has worsened to the point where he has daily low back pain requiring opioids for control of the pain. His MRI showed diffuse spondylosis with advanced degenerative disc disease with the worst level at L4-5 where there is a neuroforaminal stenosis. Often what is called a low back strain in the military is the precursor of a more serious back condition as is this case. In a correspondence dated January 2022, Dr. FG stated the following: A condition of advanced intervertebral disc syndrome with degenerative disc changes multiple level requiring the use of walking aids in has a service connection by reason of injury sustained while working on a missile launcher during military service with injury to the left shoulder and cervical lumbar spine. That injury initiated a condition of chronic inflammation within the intervertebral disc and facet joints and is causal to a progressive lumbosacral spinal condition. Having reviewed the evidence of record, the Board finds the private medical opinions from Dr. M.F. and Dr. F.G. to be more probative than that of the June 2019 VA examiner, as they adequately address the progression of the Veteran's back disability both during and after active service. Conversely, the June 2019 examiner's opinion is inadequate as it fails to discuss the Veteran's theory of entitlement regarding falling from a missile launcher while in service and relies on a lack of chronicity of care for the basis of the rationale. The Board finds the private medical opinions from Dr. M.F. and Dr. F.G. to be highly probative as they present the medical opinion of competent experts, informed by the record, and presented with a sound discussion of the examiner's rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing and affording the Veteran all benefit of the doubt, the Board finds that the competent and credible evidence of record supports a finding that the Veteran's claimed back disability began in service and has continued since that time. Accordingly, service connection is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.