Citation Nr: 22051175 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 19-09 369 DATE: September 8, 2022 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right elbow disability is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for fibromyalgia, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's cervical spine disability began during his active service, or is otherwise related to an in-service event, injury, or disease. 2. The evidence of record persuasively weighs against finding that the Veteran's right knee disability began during his active service, or is otherwise related to an in-service event, injury, or disease. 3. The evidence of record persuasively weighs against finding that the Veteran's left knee disability began during his active service, or is otherwise related to an in-service event, injury, or disease. 4. The evidence of record persuasively weighs against finding that the Veteran's right elbow disability began during his active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 4. The criteria for entitlement to service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to March 1988 and from March 1989 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was previously remanded by the Board in June 2020. A review of the claims file shows that there has been substantial compliance with the Board's remand directives related to the issues of entitlement to service connection for a cervical spine disability, right knee disability, left knee disability, and right elbow disability. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In June 2020, the Board remanded the claims of entitlement to service connection for traumatic brain injury (TBI), a seizure disorder, chronic diarrhea, and gastroesophageal reflux disease (GERD) for additional development. A December 2021 rating decision granted entitlement to service connection for irritable bowel syndrome, a seizure disorder, and TBI. A February 2022 rating decision granted entitlement to service connection for GERD. As this represents a total grant of the benefits sought on appeal with respect to these issues, they are no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). Additional VA treatment records were added to the claims file after the February 2022 supplemental statement of the case (SSOC) for which there is not an automatic waiver of initial AOJ review; however, the VA treatment records are not relevant to the issues on appeal. Therefore, no additional due process is needed, and there is no need to solicit a waiver of AOJ consideration or return the case to the AOJ for issuance of a supplemental SSOC. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a cervical spine disability is denied. The Veteran seeks entitlement to service connection for a cervical spine disability, which he contends is related to in-service injuries to his neck. The question for the Board is whether the Veteran has a current disability that is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has current diagnoses of degenerative disc disease and his service treatment records reflect several occurrences of treatment for neck pain the evidence of record persuasively weighs against finding that the Veteran's current disability is related to an in-service injury, event, or disease. Pursuant to the June 2020 Board remand, the Veteran was provided an addendum opinion related to his cervical spine in November 2021. The VA examiner reviewed the record and opined that the Veteran's cervical spine disability is less likely than not related to his active service, to include his treatment for neck pain during service. As rationale, the VA examiner explained that the Veteran separated from active service in November 1989 and based on review of the record there is insufficient evidence to establish any continuity of symptoms with military service. The VA examiner further explained that any previous in-service neck complaints or injuries including the 1987 injury that necessitated diagnostic testing of the neck and January 1988 record noting complaints of body aches, including in the neck, entirely self-resolved. The VA examiner noted that the Veteran's separation examination is silent for any cervical spine condition and notes that the Veteran's neck and spine were normal. Additionally, in an October 1989 report, the Veteran noted that he did not have any neck or spine issues. Although the Veteran believes his cervical spine disability is etiologically related to his in-service treatment for neck pain, he is not considered competent to provide an opinion in this case. The issue is medically complex, as it requires knowledge and expertise as to the cause of degenerative disc disease. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, his assertions are not probative and do not weigh against the probative value of the November 2021 VA examiner's opinions. In view of the foregoing, the Board concludes that the evidence for and against the claim is not in approximate balance, but rather persuasively weighs against the claim. Because there is not an approximate balance in the weight of the evidence, the doctrine of reasonable doubt is not for application, and the claim is denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for a right knee disability is denied. 3. Entitlement to service connection for a left knee disability is denied. The Veteran seeks entitlement to service connection for a bilateral knee disability, which he contends is related to in-service injuries to his knees. The question for the Board is whether the Veteran has a current disability that is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has current diagnoses of residuals of right knee surgery and left knee osteoarthritis and his service treatment records reflect several occurrences of treatment for bilateral knee pain, the evidence of record persuasively weighs against finding that the Veteran's current bilateral knee disability is related to an in-service injury, event, or disease. Pursuant to the June 2020 Board remand, the Veteran was provided an addendum opinion related to his right knee disability in November 2021. The VA examiner reviewed the record and opined that the Veteran's right knee disability is less likely than not related to his active service, to include his treatment for right knee pain during active service. As rationale, the VA examiner explained that the Veteran separated from active service in November 1989 and based on review of the record there is insufficient evidence to establish any continuity of symptoms with military service. The VA examiner further explained that any previous in-service right knee complaints or injuries, including the reports of right knee pain after an in-service soccer injury, entirely self-resolved. The VA examiner noted that the Veteran's separation examination is silent for any right knee condition and notes that the Veteran's lower extremities were normal. Additionally, in an October 1989 report, the Veteran noted that he did not have any knee issues. As to the Veteran's left knee disability, the Veteran was provided a VA addendum opinion in December 2021. The VA examiner reviewed the record and recorded the instances of left knee treatment in the Veteran's service treatment records. The VA examiner opined that the Veteran's left knee disability is less likely than not related to an in-service injury, event, or illness. As rationale, the VA examiner explained that the Veteran's diagnosis of osteoarthritis was noted well beyond the one-year presumptive service connection period. The VA examiner further explained that after reviewing the Veteran's service treatment records, there is insufficient objective evidence to establish continuity of care/symptoms. Although the Veteran believes his bilateral knee disability is etiologically related to his in-service treatment for bilateral knee pain, he is not considered competent to provide an opinion in this case. The issue is medically complex, as it requires knowledge and expertise as to the cause of knee disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, his assertions are not probative and do not weigh against the probative value of the November 2021 and December 2021 VA examiners' opinions. In view of the foregoing, the Board concludes that the evidence for and against the claims are not in approximate balance, but rather persuasively weighs against the claim. Because there is not an approximate balance in the weight of the evidence, the doctrine of reasonable doubt is not for application, and the claim is denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 4. Entitlement to service connection for a right elbow disability is denied. The Veteran seeks entitlement to service connection for a right elbow disability, which he contends is related to in-service injuries to his right elbow. The question for the Board is whether the Veteran has a current disability that is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, although the Veteran has current diagnoses of right elbow olecranon bursitis and his service treatment records reflect treatment for his right elbow, the evidence of record persuasively weighs against finding that the Veteran's current right elbow disability is related to an in-service injury, event, or disease. Pursuant to the June 2020 Board remand, the Veteran was provided an addendum opinion related to his cervical spine in October 2021. The VA examiner reviewed the record and opined that the Veteran's right elbow disability is less likely than not related to his active service, to include his treatment for right elbow pain during service. As rationale, the VA examiner explained that the Veteran was provided an x-ray in May 1987, after the in-service injury, which was normal. The VA examiner further explained that there is no chronicity established; therefore, nexus is not established. Although the Veteran believes his right elbow disability is etiologically related to his in-service treatment for right elbow pain, he is not considered competent to provide an opinion in this case. The issue is medically complex, as it requires knowledge and expertise as to the cause of elbow olecranon bursitis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, his assertions are not probative and do not weigh against the probative value of the October 2021 VA examiner's opinions. In view of the foregoing, the Board concludes that the evidence for and against the claim is not in approximate balance, but rather persuasively weighs against the claim. Because there is not an approximate balance in the weight of the evidence, the doctrine of reasonable doubt is not for application, and the claim is denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran contends that his current low back disability is related to in-service treatment for low back pain. In June 2020, the Board remanded the issue to obtain an addendum opinion. The VA examiner was requested to address the November 1984 injury to the back, a May 1987 injury resulting in low back pain, January 1988 complaints of body aches, including to the low back, a September 1987 injury with a differential diagnosis of musculoskeletal pain versus transverse process fracture, and an October 1989 injury resulting in low back pain. The Veteran was provided an addendum opinion in December 2021. The VA examiner opined that the Veteran's current low back disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the VA examiner merely listed the following statements "exam is normal", "12/6//196 chronicbck pain", "9/25/87 xray lumbar spines no fracture", "back paon [sic] for 20 years", and "could not find significant findings on back condition in service." The VA examiner did not address the in-service treatment for low back pain as directed by the June 2020 Board remand directives. Accordingly, the VA examination is incomplete for adjudication purposes and does not substantially comply with the June 2020 Board remand directives. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 2. Entitlement to service connection for headaches is remanded. The Veteran contends that he has headaches that are directly related to his active service or secondary to his service-connected TBI. In June 2020, the Board remanded the issue to obtain an addendum opinion as to whether the Veteran's headaches are related to active service or secondary to his service-connected TBI. The Veteran was provided an addendum opinion related to his headaches in January 2022. The VA examiner opined that the Veteran's headaches are less likely than not related to an in-service event, injury, or illness. As rationale, the VA examiner explained that the Veteran had minor head trauma in January 1985, was hit in the face in May 1987, and had a concussion in October 1989. However, the VA examiner noted that in-service examinations are silent for a headache condition and that there are no additional symptoms until October 2014. The VA examiner explained that this a lapse of 25 years in medical documentation of treatment for or complaints of a headaches condition. However, the January 2022 VA examiner did not provide an opinion as to whether the Veteran's headaches are secondary to his service-connected TBI as directed by the June 2020 Board remand. Accordingly, the January 2022 VA examination is incomplete for adjudication purposes and does not substantially comply with the June 2020 Board remand requests. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). 3. Entitlement to service connection fibromyalgia is remanded. The Veteran contends that he has fibromyalgia that is directly related to his active service or secondary to his service-connected posttraumatic stress disorder (PTSD). In June 2020, the Board remanded the issue to obtain an addendum opinion as to whether the Veteran's fibromyalgia is related to his active service or secondary to his service-connected PTSD. The Veteran was provided an addendum opinion related to his fibromyalgia in January 2022. The VA examiner opined that the Veteran's fibromyalgia is less likely than not related to an in-service injury, event, or illness. As rationale, the VA examiner explained that even though the Veteran experienced numerous incidents of bumps and bruises while competing in athletic events, as well as during incidents of altercations during service, there is insufficient evidence available in the service treatment records indicating the events during service either caused or contributed to a diagnosis of fibromyalgia. As to whether the Veteran's fibromyalgia is proximately due to or aggravated by his service-connected PTSD, the VA examiner reported that this opinion was outside the examiner's scope of practice. Accordingly, the January 2022 VA examination is incomplete for adjudication purposes and does not substantially comply with the June 2020 Board remand requests. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The matters are REMANDED for the following action: 1. Forward the Veteran's file to a VA examiner for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the Veteran's diagnosed low back disability had its onset during the Veteran's service or is otherwise etiologically related to his service. The VA examiner must address the service treatment records reflecting a November 1984 injury to the back, a May 1987 injury resulting in low back pain, January 1988 complaints of body aches, including to the low back, a September 1987 injury with a differential diagnosis of musculoskeletal pain versus transverse process fracture, and an October 1989 injury resulting in low back pain. For the purposes of the opinion, the examiner should assume the Veteran's statements about his symptoms are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition. The Board emphasizes that this does not constitute a positive credibility determination, as the Board will weigh the evidence once the appeal returns. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In doing so, the examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record, and may state whether or not the Veteran's lay statements are supported by medical or other evidence. 2. Forward the Veteran's file to a VA examiner for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's headache disability is proximately due to or the result of his service-connected TBI. Rationale must be provided for the opinion proffered. If not, whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's headache disability is aggravated beyond natural progression by his service-connected TBI. Rationale must be provided for the opinion proffered. For the purposes of the opinion, the examiner should assume the Veteran's statements about his symptoms are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition. The Board emphasizes that this does not constitute a positive credibility determination, as the Board will weigh the evidence once the appeal returns. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In doing so, the examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record, and may state whether or not the Veteran's lay statements are supported by medical or other evidence. 3. Forward the Veteran's file to a VA examiner for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's fibromyalgia is proximately due to or the result of his service-connected PTSD. Rationale must be provided for the opinion proffered. If not, whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's fibromyalgia is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected PTSD. Rationale must be provided for the opinion proffered. For the purposes of the opinion, the examiner should assume the Veteran's statements about his symptoms are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition. The Board emphasizes that this does not constitute a positive credibility determination, as the Board will weigh the evidence once the appeal returns. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In doing so, the examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record, and may state whether or not the Veteran's lay statements are supported by medical or other evidence. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.