Citation Nr: 1300657 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-10 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 2. Entitlement to an increased rating for degenerative joint disease of the right shoulder, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active duty for training (ADT) from January to July 1987 and active service from November 1990 to April 1991, which included service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Nashville, Tennessee that denied service connection for right and left foot disabilities and headaches. It also increased the right shoulder disability rating from noncompensable to 10 percent. In December 2010, the Board remanded the issues currently on appeal for additional development. In March 2012, the RO/AMC granted service connection for left and right foot disabilities. As this rating action results in a full grant of the benefit sought (i.e. service connection), it is no longer on appeal. A review of the Virtual VA paperless claims processing system does not show any pertinent records that are not already associated with the claims folder. 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 Unfortunately, additional development is necessary before the issues on appeal may be considered on the merits. For the claimed headaches, the Board remanded this issue to obtain a VA medical examination. A remand by the Court or Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where a remand order of the Board is not complied with, the Board itself errs in failing to insure compliance. Id. at 270-71. The December 2010 remand instructed the examiner to opine as to whether the Veteran's headaches are due to an undiagnosed illness or can be attributed to any known medical causation. If a known medical causation was given, the examiner was to opine as to whether such diagnosis is related to service, to include exposure to Gulf War toxins. The RO/AMC obtained a January 2011 medical opinion. The examiner diagnosed tension headaches and provided a negative opinion based upon an absence of a continuity of symptomatology beginning in service. She dates his tension headaches as beginning in the late 1990s. However, there is evidence he had tension headaches as early as December 1995. She does not express an opinion as to whether his tension headaches can be attributed to reports of being exposed to toxins during Gulf War service. Overall, the January 2011 VA medical opinion is not in compliance with the December 2010 remand. Although the examiner diagnosed tension headaches, it is not clear whether she considered a possible etiology of Gulf War toxins. She also does not explain why his headache symptoms are better characterized as tension headaches, rather than an undiagnosed illness. Another medical opinion is necessary as detailed below. Id. Regarding the issue of a right shoulder disability, this disability is rated on the basis of limitation of motion. For such disabilities, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The January 2011 VA examination report indicates that the Veteran reported flare-ups of right shoulder symptomatology and had pain in his right shoulder during range of motion testing. However, the examiner did not fully assess the functional impairment posed by the findings of pain in the right shoulder. The Unites States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). In Mitchell, the Court found an examination report to be inadequate where, in a case where the Veteran has reported flare-ups associated with a musculoskeletal disability, the examiner did not explicitly indicate "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." In this case, the examiner reported the Veteran's subjective complaints and described his symptoms, which included flare-ups every two to three weeks that lasted several hours. He then indicated the functional limitations associated with the right shoulder disability. Next, range of motion findings were provided. The examiner noted that there was evidence of pain, but did not specify in terms of degrees exactly where in the range of motion the pain began. Because the examiner made no initial finding as to the degree of range of motion loss due to pain on use, the examination is inadequate, as such is required by DeLuca. Moreover, no attempt was made to estimate any additional limitation during periods of flare-up, which the Veteran reported. Although the examiner indicated that there was no additional limitation following three repetitions of range of motion testing, this does not fully address the questions at issue with regard to the impact of pain on the Veteran's right shoulder function. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any medical treatment records for headaches and his service connected right shoulder disability and furnish appropriate authorization for the release of private medical records. Take the necessary steps to obtain all records of VA treatment for these disabilities. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeals. 2. After associating any newly generated records with the Veteran's claims folder, contact the January 2011 headache examiner for an addendum opinion. If she is unavailable, contact an appropriately qualified examiner. The claims folder and access to the Veteran's Virtual VA efolder must be made available to the examiner. After complete review of the record, the examiner is asked to explain why the Veteran's headaches are more accurately characterized as tension headaches as opposed to symptom of an undiagnosed illness from service in Southwest Asia. For the currently diagnosed tension headaches, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) current headaches are the result of any exposure to Gulf War toxins. The rationale for all opinions expressed should be provided. 3. After associating any newly generated records with the Veteran's claims folder, afford the Veteran a VA examination to evaluate the severity of his right shoulder disability. The examiner should review the claims folder and note such review in the examination report or addendum. The examiner should report the ranges of right shoulder motion in degrees. The examiner should provide range of motion in degrees, to include the degree at which pain begins, for the right shoulder. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. In this regard, the examiner should estimate the extent of any additional functional limitation manifested during periods of flare-up. Such additional limitation should be expressed in degrees of motion lost during flare-ups. The Veteran's reported symptoms should be considered in making this determination. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner should also report whether there is (or findings equivalent too): malunion, fibrous union, nonunion (false or flail joint), loss of the head (flail joint) of the humerus, or dislocation of the clavicle. These findings are needed to rate the Veteran's disability in accordance with legal requirements imposed by regulations and the courts. 4. The RO/AMC should review the examination report to insure that it contains the findings sought in this remand. 5. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order. 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. 2012). _________________________________________________ J. A. MARKEY 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) (2012).