Citation Nr: 22047876 Decision Date: 08/23/22 Archive Date: 08/23/22 DOCKET NO. 15-10 370A DATE: August 23, 2022 ORDER The claim of entitlement to service connection for degenerative arthritis and rotator cuff tendonitis of the left shoulder is granted. The claim of entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), spinal stenosis, and lumbosacral degenerative disc disease is granted. The claim of entitlement to service connection for major depressive disorder is granted. The claim of entitlement to service connection for migraine headaches is granted. REMANDED The claim of entitlement to service connection for a scar to the left shoulder and chest is remanded. FINDINGS OF FACT 1. The Veteran's current degenerative arthritis and rotator cuff tendonitis of the left shoulder is due to an injury that occurred in service. 2. The Veteran's current low back disability, diagnosed as degenerative arthritis of the spine, IVDS, spinal stenosis, and lumbosacral degenerative disc disease, was incurred during service and was aggravated by his newly service-connected left shoulder disability. 3. The Veteran has a current diagnosis of major depressive disorder that has been linked to his military service. 4. The Veteran has a current diagnosis of migraine headaches that has been linked to his military service. CONCLUSIONS OF LAW 1. The criteria for the claim of entitlement to service connection for degenerative arthritis and rotator cuff tendonitis of the left shoulder have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the spine, IVDS, spinal stenosis, and lumbosacral degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from September 8, 1978, to December 21, 1978, and served on active duty from March 1980 to December 1981. This matter comes before the Board on appeal from June 2013 and June 2014 Regional Office (RO) rating decisions. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board notes that, despite extensive efforts to locate the Veteran's service treatment records, the vast majority of these records is unavailable. In such circumstances, when service records are unavailable through no fault of the Veteran's, VA has a heightened duty to assist a veteran in developing his or her claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA has met this duty and has obtained the Veteran's available outstanding service treatment records. It has documented all attempts to obtain the missing records, in both past and current adjudications of his claims, and has notified him of these ultimately unsuccessful attempts to obtain the complete records. It has also given heightened consideration to the Veteran's lay testimony regarding the disabilities that are at issue. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, or results from, a service-connected disease or injury shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection on the basis of aggravation is permitted. 38 C.F.R. § 3.310(b). Compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995). 1. The claim of entitlement to service connection for degenerative arthritis and rotator cuff tendonitis of the left shoulder is granted. The Veteran testified at his Board hearing that he injured his left shoulder while playing softball in 1981, which would have been during his period of active duty service. (See Board hearing transcript, pages 3-4.) He reported that this injury occurred while he was "in R&R." In describing the injury, he stated that "I was playing right centerfield. A low ball was hit. I trapped the ball and rolled my shoulder.... And I couldn't raise my arm.... I drove to the South Florida [sic] main hospital. There I was treated by a specialist who told me that I had separated my AC joint." (See Board hearing transcript, pages 3-4.) (The Board notes that the Veteran has clarified that the reference to South Florida main hospital was a hearing transcription error.) He stated that there was a protrusion in the left shoulder and he was given a splint to wear for six to eight weeks. (See Board hearing transcript, page 4.) The Board notes that there are no available service treatment records to verify this testimony. However, the Board finds this testimony to be credible and therefore accepts the occurrence of the described injury. The Board remanded this claim in May 2019 to obtain an etiology opinion with respect to the Veteran's contention. The Board's remand instruction included the following direction: Please provide a complete medical rationale that includes a discussion of the facts of the Veteran's case and pertinent medical principles, to specifically include a discussion of whether any current left shoulder disability is consistent with the mechanism of injury that was described by the Veteran at his October 2018 Board hearing. The Veteran underwent a VA examination in January 2020. Based on review of the claims file and interview and examination of the Veteran, the examiner diagnosed degenerative arthritis and rotator cuff tendonitis of the left shoulder, both with onset dates in 1981. The examiner opined that these disabilities at least as likely as not had their onset in service and provided an extremely detailed rationale that includes discussion of the facts of the Veteran's case and pertinent medical principles. Specifically, the examiner repeated the above description of the Veteran's softball injury, noting that the Veteran has experienced these symptoms since the in-service injury. The examiner noted that "the current left shoulder condition symptoms occur[] in a similar location, and appear[] to be of a similar nature, as the left shoulder condition the veteran developed... while playing softball while in the military," and that "the current left shoulder condition [has] similar precipitating, exacerbating, and relieving factors as the left shoulder condition the veteran developed [in the in-service injury]." The examiner concluded by noting that "the current left shoulder disability is consistent with the mechanism of injury that was described by the Veteran at his October 2018 Board hearing." The Board finds this opinion to be highly probative, as it was authored by a physician who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and examination of the Veteran and reflects familiarity with the facts of this case. Its rationale includes a discussion of the facts of the Veteran case and pertinent medical principles. There are no contradictory opinions of record. In light of the above, the Board finds that entitlement to service connection for degenerative arthritis and rotator cuff tendonitis of the left shoulder is warranted, and the benefit sought on appeal is granted. 2. The claim of entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the spine, IVDS, spinal stenosis, and lumbosacral degenerative disc disease, claimed as secondary to a left shoulder disability, is granted. As the Board will discuss below, entitlement to service connection for a low back disability is warranted on a direct basis as well as on a secondary basis based on aggravation. The Veteran testified at his Board hearing he "first noticed in my back in basic training whenever we was in formation or doing drills or anything, I had a lot of lower back pain.... But I didn't complain about [it] because I didn't think my discomfort was any different than anybody else's." (See Board hearing transcript, page 8.) He indicated that he used to fight a lot on base and would get in trouble for it. (See Board hearing transcript, page 8.) The Board notes that there are no available service treatment records to verify this testimony. However, the Board finds this testimony to be credible and therefore accepts the occurrence of the described injury. The Board finds that entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the spine, IVDS, spinal stenosis, and lumbosacral degenerative disc disease, is warranted both on a direct basis and as secondary to service-connected left shoulder disability based on aggravation. The record contains a current diagnosis of degenerative arthritis of the spine, IVDS, spinal stenosis, and lumbosacral degenerative disc disease. (See January 2020 VA back conditions examination report.) Service connection is now in effect for degenerative arthritis and rotator cuff tendonitis of the left shoulder. A January 2020 etiology opinion found that it is at least as likely as not that the Veteran's low back disability was caused or aggravated by his left shoulder disability. In his rationale, the examiner stated that "although the veteran's low back disability appears to have been caused by the veteran's military service, as the veteran's low back condition started while the veteran was in basic training, the veteran's low back disability appears to have been aggravated by his left shoulder disability." The examiner noted that: The veteran's back condition significantly worsened around 1984 when the veteran had a job soon after his discharge from the military that required the veteran to carry cinderblocks on his shoulders behind his neck; and the veteran would favor carrying most of the cinderblock weight on his right shoulder to minimize the residual pain in his left shoulder from his left shoulder injury while in the military; which would put chronic and recurrent off balance stress on the veteran's lumbosacral spine; leading to the development of the veteran's lumbosacral spine degenerative joint disease, with lumbosacral spine degenerative disc disease, lumbosacral spine intervertebral disc syndrome, and lumbosacral spinal stenosis. Furthermore, the veteran has had persistent and recurrent lumbosacral spine condition symptoms from the time of their initial development while the veteran was in the military, with significant worsening in 1984, until the present time; with the current lumbosacral spine condition symptoms occurring in a similar location, and appearing to be of a similar nature, as the lumbosacral spine condition the veteran developed while in the military; and with the current lumbosacral spine condition with similar precipitating, exacerbating, and relieving factors as the lumbosacral spine condition the veteran developed while in the military. The Board finds this opinion to be highly probative, as it was authored by a physician who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and examination of the Veteran and reflects familiarity with the facts of this case. Its rationale includes a discussion of the facts of the Veteran case and pertinent medical principles. Specifically, it explains how the back injury that the Veteran suffered in service was subsequently aggravated by his service-connected left shoulder disability. There are no contradictory opinions of record. In light of the above, the Board finds that entitlement to service connection for a low back disability, diagnosed as degenerative arthritis of the spine, IVDS, spinal stenosis, and lumbosacral degenerative disc disease, claimed as secondary to a left shoulder disability, is warranted, and the benefit sought on appeal is granted. 3. The claim of entitlement to service connection for major depressive disorder is granted. The Veteran has a current diagnosis of major depressive disorder. (See December 2019 VA mental disorders examination report.) The December 2019 VA examiner has attributed this disability to the Veteran's military service, specifically to "at least two violent episodes" that occurred during service. It was noted that the Veteran assaulted a sergeant after suffering severe verbal abuse. The Veteran was also assaulted while breaking up a fight. The Board finds this opinion to be highly probative, as it was authored by a psychologist who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and evaluation of the Veteran. The Board acknowledges that service treatment records and service personnel records that would verify the Veteran's reported in-service incidents are not available through no fault of the Veteran. The Board notes, however, that the VA examiner's professional expertise renders her competent to determine whether the described stressor events are corroborated in behavioral observations. The Board therefore finds that this opinion is highly probative in the case at hand. There are no contradictory opinions of record. In light of the above, the Board finds that entitlement to service connection for major depressive disorder is warranted, and the benefit sought on appeal is granted. 4. The claim of entitlement to service connection for migraine headaches is granted. The Veteran contends that "after I got that shoulder injury is when I started suffering from the migraines." (See Board hearing transcript, page 11.) He reported that they were very severe in service and that he sought medical treatment in service and was given a medication. (See Board hearing transcript, page 11.) He reported that he "continued to get these migraines even after I got out of the service, and I still get headaches." (See Board hearing transcript, page 12.) The Veteran also testified that, when he was sitting in the MP station prior to the fight that is discussed above, he "got this excruciating migraine." (See Board hearing transcript, page 14.) VA medical records reflect that the Veteran is being treated for migraine headaches. For example, a May 2022 VA medical record notes that the Veteran is taking Sumatriptan succinate for migraine headaches. Given that the vast majority of the Veteran's service treatment records (with the available records consisting of enlistment examination and medical history reports) are missing, the Board will accept the Veteran's competent testimony of in-service migraines. The Board will also accept the Veteran's testimony of continuity of symptomatology since service, as there is no contradictory evidence in the claims file. As noted above, the Veteran has a current diagnosis of migraine headaches. Therefore, the Board will resolve reasonable doubt in favor of the Veteran and find that entitlement to service connection for migraine headaches is warranted, and the benefit sought on appeal is granted. REASONS FOR REMAND 1. The claim of entitlement to service connection for a scar to the left shoulder and chest is remanded. The Veteran contends that he suffered a scar to his left shoulder and chest when he was cut by a razor while attempting to break up a fight. (See Board hearing transcript, pages 13-14.) He testified that, "[w]hen the MPs came they thought that I was the aggressor... so he grabbed me and took me down to the MP station." (See Board hearing transcript, page 14.) At the station, the officer realized that the Veteran had been slashed and that he was not the aggressor, so he was taken to the hospital. (See Board hearing transcript, page 14.) In an August 2012 personal statement, he reported that "I have a 36 inch, painful scar across my left shoulder and chest." As discussed above, the Board has been unable to obtain records that were created in connection with this incident. The Board notes that several of the Veteran's post-service medical evidence reflects that the Veteran has been stabbed multiple times. For example, an April 1994 VA medical record notes that the Veteran "has been stabbed 5 [times] in drug related incidences." A December 2007 VA medical record reflects that the Veteran "has also been stabbed 6 separate times during fights, dating as far back as the military." A January 2014 VA medical record reflects that the Veteran has a "History of stab wound to the chest, 1988," "History of requiring chest tube secondary to stab wound, 1987," and "History 'being stabbed 8 separate times during fights.'" The Board finds that a remand for a VA examination and an etiology opinion is necessary to determine whether the Veteran has a current scar of the left shoulder and chest that is due to an in-service injury. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained. 2. Arrange for the Veteran to be scheduled for an examination with a qualified examiner to determine whether he has a scar from a stab wound to the left shoulder and chest as the result of an injury that the Veteran has described having suffered during service. The Veteran should be interviewed, and all indicated tests and studies should be accomplished. All findings should be reported in detail. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has a scar on his left shoulder and chest that is consistent with his described in-service injury. The examiner must discuss the Veteran's allegations of having suffered a razor wound to his left shoulder and chest in service while trying to break up a fight, as well as his history of having been stabbed numerous times outside of service. The Board notes that at least one of the stabbings that he suffered outside of service was to his chest. It occurred approximately 7 to 9 years after his separation from service, and he required a chest tube in his treatment. Is there any medical reason to accept or reject the proposition that the claimed in-service mechanism of injury caused a current scar? Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.