Citation Nr: 1002803 Decision Date: 01/19/10 Archive Date: 02/01/10 DOCKET NO. 05-28 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1973 to March 1979. This matter is before the Board of Veterans' Appeals (Board) following a December 2008 order granting a joint motion to remand from the United States Court of Appeals for Veterans Claims (CAVC) following a Board decision rendered in July 2007. The issues were originally on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in No. Little Rock, Arkansas. The Veteran had a hearing before the Board in September 2006 and the transcript is of record. The Board received additional evidence from the Veteran in November 2009 after the CAVC granted the joint motion for remand. Clearly, the RO has not reviewed the new evidence and a supplemental statement of the case (SSOC) was not issued, but this is not necessary since the evidence submitted (a private medical opinion) was accompanied by a waiver of local jurisdictional review. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required on his part. REMAND The Veteran alleges his migraine headaches, low back disability and right shoulder disability were all incurred in the military. Specifically, the Veteran claims his headaches began in the military and migraines were specifically diagnosed a few short years after separation from the military. The Veteran further claims his current low back and right shoulder disabilities are products of in-service injuries shoveling dirt and falling down stairs respectively. The Board, in a July 2007 Board decision denied the Veteran's claims finding the most persuasive medical evidence against the Veteran's claims. The service treatment records confirm the Veteran's complaints of headaches as well as some injury or some trauma resulting in multiple complaints and treatments for his right shoulder and low back. On separation, however, the Veteran was not found to have any chronic disabilities related to his complaints and treatment for headaches, low back and right shoulder. This claim is complicated by differing medical opinions. The Veteran's biggest advocate is a private physician Dr. Carson, who indicated he treated the Veteran since 1984, five years after separation from the military, for migraine headaches. In various statements, Dr. Carson opined that the Veteran's migraine headaches, low back disability and right shoulder disability were incurred in the military. As explained in the Board's July 2007 decision, the Board did not find the statements persuasive because the statements left out important facts and, therefore, may have been based on incomplete or inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding a medical opinion based on incorrect factual premise is not probative). For example, Dr. Carson did not reconcile the fact that VA outpatient treatment records and private treatment records have related the Veteran's headaches to other non-service- connected disabilities, such as depression, hypertension and vision problems. Dr. Carson also did not address whether the Veteran's post- service years working in a laborious career relate to the Veteran's low back and right shoulder disabilities, both of which were diagnosed years after service. The Veteran's supervisor wrote a statement detailing the Veteran's physical demands at his job and the fact that the Veteran has worked with the company for years and has a vast knowledge of the equipment. The Veteran's supervisor further explained the Veteran physically pushes himself to complete his long shifts. In short, there is evidence that the Veteran's long- standing post-service occupation includes significant physical demands and is clearly relevant to the Veteran's low back and right shoulder disability claims, which were not diagnosed until years after his military service. Dr. Carson's failure to address or reconcile the Veteran's post- service occupation with his nexus opinion further cut against the persuasiveness of the medical evidence. In contrast, the Board denied the Veteran's claim primarily based on January 2006 VA examinations. Those examiners did thoroughly review the claims folder, to include Dr. Carson's statements, and found the Veteran's current disabilities not likely related to in-service complaints and treatment. The CAVC, in granting the Joint Motion to Remand, found the Board did not adequately explain why Dr. Carson's statements were not persuasive, especially in light of the Veteran's statements indicating continuity of symptomatology since service. The Veteran, in support of his claim, further provided an additional private opinion from Dr. Winfield dated November 2009. Similar to Dr. Carson, Dr. Winfield fails to discuss and reconcile the relevant facts and circumstances that cut against the Veteran's claims and, instead, focused solely on facts favorable to the Veteran. For example, Dr. Winfield discusses the Veteran's in-service treatment for headaches, low back pain and right shoulder pain, but fails to reconcile the fact that the Veteran was not actually diagnosed with chronic disabilities until years after service. Dr. Winfield does not discuss or reconcile VA and private medical treatment records associating the Veteran's migraine headaches with disabilities unrelated to his military service, to include depression, hypertension and vision problems. Dr. Winfield does not address or reconcile the conclusions and opinions found in the January 2006 VA examination reports. Dr. Winfield also does not address the Veteran's laborious post-service occupation, which is clearly related to the Veteran's low back and right shoulder claims. On the other hand, in light of the CAVC order and the newly obtained private medical opinion from Dr. Winfield, a new VA examination is necessary to obtain a medical opinion considering and reconciling all conflicting medical evidence and opinions. It is unclear whether Dr. Winfield regularly treated the Veteran or merely examined him once to render an opinion on this case. The RO should take this opportunity to obtain any treatment records from Dr. Winfield to the extent they exist. The RO should also take this opportunity to obtain recent VA outpatient treatment records from May 2004 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's medical records for treatment of his claimed disabilities from the VA Medical Centers in Fayetteville, Arkansas from May 2004 to the present. All efforts to obtain VA records should be fully documented, and the VA facilities must provide a negative response if records are not available. 2. Ask the Veteran to identify and provide release forms authorizing VA to request his treatment records from any private physician that treated him for his claimed conditions, to include Dr. Winfield and Dr. Carson. These medical records should then be requested, and the RO should specify that actual treatment records, as opposed to summaries, are needed. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. 3. After the above evidence is obtained, to the extent available, schedule the Veteran for appropriate VA examinations for his migraine headaches, low back disability and right shoulder disability. The physicians should provide an opinion as to whether it is at least as likely as not that any headache, low back or right shoulder disorder found is related to any incident of his military service, specifically commenting on the Veteran's complaints and treatment for headaches, low back pain and right shoulder pain found throughout his service treatment records. The physicians are also asked to comment on the relationship, if any, of the Veteran's current headaches, low back and right shoulder pain with his post- service occupation and unrelated disabilities, to include hypertension, depression and vision problems. Pertinent documents in the claims folder must be reviewed by the examiners to include a copy of this Remand and the examiners should provide a complete rationale for any opinion given without resorting to speculation, resolving any conflicting medical opinions rendered. Specifically, the physicians are asked to reconcile the opinions rendered by Dr. Carson, the January 2006 VA examiners and Dr. Winfield. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Thereafter, readjudicate the Veteran's claims. If the claims remain denied, issue a SSOC to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The purposes of this remand are to complete the record, and to ensure due process. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims is both critical and appreciated. The appellant is also again advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims must be afforded expeditious treatment. _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).