Citation Nr: 1007169 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-39 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service- connected degenerative joint disease of the cervical spine. 4. Entitlement to an initial evaluation in excess of 10 percent for lumbar spondylosis. 5. Entitlement to an initial evaluation in excess of 10 percent for cervical degenerative joint disease. 6. Entitlement to an initial compensable evaluation for left ear hearing loss disability. 7. Entitlement to an initial compensable evaluation for carpal tunnel syndrome of the right upper extremity. 8. Entitlement to an initial compensable evaluation for carpal tunnel syndrome of the left upper extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.C. Schingle, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to December 1980, August 1987 to December 1987, and December 2004 to March 2006. The Board notes that the Veteran was called to active duty in August 2008, for a period not to exceed 400 days. This case comes to the Board of Veterans' Appeals (Board) on appeal from July 2006 and March 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes the Veteran's has reported that he was exposed to numerous IED explosions and suffered blast injury residuals during service. See August 2007 treatment report. Similarly, in a January 2010 informal hearing presentation, the Veteran's representative requested a neurological examination by a specialist familiar with traumatic brain injuries and stated that the Veteran continues to suffer from headaches, depression, and poor concentration. The the issue of service connection for residuals of traumatic brain injury have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, additional development is necessary to adjudicate the Veteran's claims. As an initial matter, the record reflects that the Veteran was deployed to Afghanistan in August 2008, for a period not to exceed 400 days. It is unclear if the Veteran completed this deployment. On remand, the RO should verify the dates of any active duty in conjunction with this additional deployment. Furthermore, the RO should obtain any service treatment records for this period of service. Without these medical records, the record on appeal is incomplete. Claims for Service Connection In this case, the Veteran contends that his current bilateral hip disorder, migraine headaches and bilateral shoulder disability are related to service. The Board notes that the Veteran contends he has a bilateral shoulder disability may also be secondary to his service-connected cervical spine disorder. A review of the available service treatment records shows in July 1986 the Veteran complained of pain and pressure to the occipital area of the skull after being thrown from jeep and hitting his head on the ground. In February 2006 he complained of numbness in the bilateral arms, from the shoulders and reported multiple exposures to improvised explosive device (IED) explosions in service. To the extent that the Veteran has contended that his disability resulted from exposure to explosions from IEDs, the Board observes that combat veterans are afforded special consideration and are given the benefit of the doubt in disability cases. In the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation in such service, and, to that end, every reasonable doubt shall be resolved in favor of the veteran. See 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2008); 38 C.F.R. § 3.304(d) (2007); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). In the present case, the Board observes that the Veteran's service included service in Iraq from March 2005 to February 2006 and that he received the Combat Action Badge. His assertions with regard to exposure to IED explosions are credible and consistent with his combat service. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. An examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the claimant suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service- connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2009). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In light of the Veteran's credible statements regarding his observable symptoms of shoulder and hip pain and headaches in service and post-service, the Board finds a VA examination necessary in order to determine the Veteran's complete disability picture and to determine whether the Veteran's current symptoms are manifestations of current disabilities that are related to service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2008) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. As this case presents certain medical questions which cannot be answered by the Board, a VA examination must be conducted. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. In this regard, the evidence shows the Veteran was treated for head trauma and bilateral shoulder pain in service and experienced joint pain in the hips during service. Additionally, the evidence shows the Veteran reports current symptoms regarding the bilateral hips, migraines and bilateral shoulders. With respect to the Veteran's claim for service connection for shoulder disabilities, the Board observes that the Veteran was afforded a June 2006 VA examination that resulted in a finding of normal service. However, the record also reflects that the Veteran's has complaints of upper extremity radiculopathy. The Board is of the opinion that a VA examination would be probative in ascertaining whether the Veteran's service connected cervical spine disability results in a separate neurological disorder of the upper extremities. Increased Rating Claims With regard to the increased rating claims, the Veteran contends that his current disabilities (lumbar spondylosis, left ear hearing loss, carpel tunnel syndrome, and degenerative joint disease of the cervical spine) are more severe than the assigned disability ratings. The evidence of record indicates that the Veteran's symptoms may have progressed. In this regard, the Veteran contends that his spine disabilities interfere with his ability to perform his job as a police officer. Although these contentions were noted in the Veteran's June 2006 spine examination, no medical opinion was been rendered which specifically addressed the effect of the Veteran's spine disabilities on his ability to perform work duties. Additionally, the record shows recent complaints of low back pain with radiating pain in the low extremities as well as complaints of radiating pain in the upper extremities, to include the bilateral shoulders. No medical opinion has been rendered as to whether these complaints solely represent neurological impairment of cervical and lumbar spines or separate neurological disabilities of the extremities. Regarding carpal tunnel syndrome (CTS), the Veteran complains of continued discomfort and painful motion on repetitive use. The Board notes that the prior June 2006 VA examination for CTS did not provide an opinion with regard to limitation of motion due to pain or repetition. See January 2010 informal hearing presentation. Additionally, the Veteran contends that his left ear hearing loss is problematic in noisy environments. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his left ear hearing loss, lumbar spine disability, cervical spine disability, and CTS. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must request the Veteran's most recent service treatment records from his period of service beginning in August 2008. If these records are unavailable, it should be so stated. 2. Then, the Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of all currently present headache disorders. The claims folder must be provided to and reviewed by the examiner. Any indicated studies should be performed. Based on examination results and a review of the claims folder, the examiner should provide an opinion, with respect to each currently present headache disorder, as to whether there is a 50 percent or better probability that the disorder began during service or is otherwise etiologically related to the Veteran's active service. The rationale for each opinion expressed must also be provided. 3. The Veteran should be scheduled for a VA examination to determine the nature and etiology of any current hip and/or shoulder disabilities. The Veteran's claims folder must be provided to the VA examiner to review in conjunction with the Veteran's examination. The examination report should state that the claims folder has been reviewed. The examiner should first provide a diagnosis for any right or left hip and/or right or left shoulder disability that is currently manifested. For each disability identified, the examiner should be requested to express an opinion as to whether there is a 50 percent or better probability that the disability is the direct result of a disease or injury in service or is related to his service-connected cervical and/or lumbar spine disabilities. If a diagnosis cannot be rendered with regard to the Veteran's claimed hip and/or shoulder disabilities, the examiner should so state. The examiner should provide a thorough and complete rationale for all opinions provided in the examination report. 4. The RO/AMC should make arrangements with an appropriate VA medical facility for the Veteran to be afforded examinations regarding the current severity of his left ear hearing loss, lumbar and cervical spine disorders and CTS. The RO/AMC should: A. Schedule the Veteran for a VA audiological examination to ascertain the current severity of the Veteran's left ear hearing loss. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. B. Schedule the Veteran for orthopedic and neurological examinations of the lumbar and cervical spine. The claims file should be provided to the physicians for review in conjunction with the examinations. All indicated tests and studies deemed appropriate by the examiners, including x-rays, electromyography (EMG), and nerve conduction studies, must be accomplished and all clinical findings should be reported in detail. The examiners are to provide a detailed review of the Veteran's history, current complaints, and the nature and extent of all lumbar and cervical spine disabilities in accordance with the latest AMIE work sheet for rating the lumbar and cervical spine. In addition, the examiner should also conduct the following tests: The orthopedic examiner should conduct complete range of motion studies and discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. If the Veteran describes flare- ups of pain, the orthopedic examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. The neurological examiner should describe in detail all current neurological impairment (to include radiculopathy) in either upper or lower extremity. In addition, the examiner should indicate whether the Veteran's current neurological impairment of the upper and lower extremities represent manifestations of the Veteran's service connected spinal disabilities or separate neurological disabilities. If the examiner is unable to comment on any of the above questions, he or she should so indicate and explain why. C. Arrange for the Veteran to be scheduled for a VA examination to determine the current severity of his service-connected bilateral carpal tunnel syndrome, to include all orthopedic and neurological findings. The claims file and a separate copy of this remand must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. The examination should include all tests and studies deemed necessary by the examiner to assess the level of service-connected disability. The examiner should report all subjective complaints and physical findings associated with the Veteran's right and left carpal tunnel syndrome. The examiner should specifically discuss whether physical examination reveals any evidence of the following symptoms/manifestations in either hand, and if present, to what degree: the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. The examiner should also discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. 5. The examinations should not be scheduled until the Veteran has returned from deployment. The Veteran must be given adequate notice of the date and place of any requested examination. If feasible, a copy of all notifications should be associated with the claims folder. The Veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 6. Following the above, the RO/AMC should readjudicate the Veteran's claims. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued, and the Veteran and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ DAVID L. WIGHT Acting 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).