Citation Nr: 1320747 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-50 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut 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 lower extremity neurological disability, to include as due to a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from April 1974 to April 1976 and from January 1985 to June 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the record indicates that a remand of all claims on appeal is necessary. Specifically, the Board determines that additional VA examinations should be scheduled and outstanding treatment records requested. With respect to the Veteran's claim for service connection for migraine headaches, the Board observes that the Veteran was treated for headaches during his first period of military service. Further, he is competent to describe his symptoms of headaches and his filing a claim is an indicator that he experiences such symptoms, which he attributes to service. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159; See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board determines that the Veteran should be provided a VA examination to assess the existence and etiology of his headaches. As for the low back disability, the Veteran's service treatment records reflect treatment for his low back as do VA treatment records. In December 2009, the Veteran was provided a VA examination to assess the etiology of his low back disability. At this examination, the examiner documented both in-service injury and treatment in 1989 and a work-related injury due to a fall in 1993. The examiner then opined that the Veteran's low back strain with intermittent sciatica is less likely as not related to the injury in service 20 years ago and more likely related to the work-related injury in 1993. However, the Board notes that there is no medical documentation of the work-related injury in the claims file or any other evidence that it occurred, including the Veteran's personal statements and hearing testimony. Further, the examiner makes a point of saying that the in-service injury was, at that time, 20 years prior, but does not explain why the purported work injury that occurred 16 years earlier was the more likely cause of the current disability. Therefore, the opinion is lacking a complete rationale, and the Board finds it to be inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In addition, the Board notes that the December 2009 VA examiner discussed a work-related back injury in 1993 that is not otherwise documented in the claims file. The Veteran should be requested to provide a release for any records related to this injury and workman's compensation claim or to submit the records himself. Finally, the Board observes that the record reflects that the Veteran receives regular treatment from within the Connecticut VA Health Care System, but the most recent VA treatment note is dated in March 2010. Therefore, the Board determines that all VA treatment records for the Veteran from the West Haven VA Medical Center dated from March 2010 forward should be obtained. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for records related to his 1993 work-related back injury, or that he submit the records directly to VA. All requests and responses, positive and negative, must be documented in the claims file. 2. Request all VA treatment records for the Veteran dated from March 2010 to the present from the West Haven VA Medical Center and any associated outpatient clinics. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for another VA examination to assess the nature and etiology of his low back disability. The claims file should be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Any neurological manifestations of the Veteran's service-connected lumbar spine disability must be identified, including any numbness of the legs. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Identify all diagnoses appropriate to the Veteran's low back and lower extremity neurological symptoms. b. Is it at least as likely as not (50 percent probability or more) that any diagnosed low back disability is causally or etiologically a result of the Veteran's in-service back injury and symptoms or is otherwise related to his military service? c. Is it at least as likely as not (50 percent probability or more) that any diagnosed lower extremity neurological disability is causally or etiologically a result of the Veteran's military service or etiologically due to his low back disability? If service-connection is granted for a low back disability, then the examiner should also address whether it is at least as likely as not (50 percent probability or more) that his neurological disability of the lower extremities was caused or aggravated by his low back disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 3. Schedule the Veteran for a VA examination to assess the nature and etiology of his headaches. The claims file should be made available for review, and the examination report should reflect that such review occurred. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Does the Veteran have now, or at any time during the claim or appeal period, had a headache disability? b. If the examiner determines that a diagnosis of headaches is appropriate, is it at least as likely as not (50 percent probability or more) that the disability is causally or etiologically a result of his military service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion advanced must be provided. The examiner must document the Veteran's self-reported symptoms and history of headaches as discussed in the claims file and at the examination and consider and discuss those complaints in the opinion. 5. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of one or more of his claims. See 38 C.F.R. §§ 3.158, 3.655 (2012). 6. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).