Citation Nr: 1323713 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-03 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a hearing loss disability. 3. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from September 1991 to April 1995. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied claims of service connection for bilateral hearing loss, a right elbow injury, lumbosacral strain, and migraine headaches. The Veteran's Notice of Disagreement with that determination was timely received in October 2009 and this appeal ensued. In August 2010, the Veteran testified at a personal hearing at the RO before the Decision Review Officer (DRO). Before the case was certified to the Board on appeal, the RO issued a rating decision in January 2011 in which the claim of service connection for a right elbow injury was granted. As the grant of service connection represented a full grant of the benefits sought on appeal with respect to that issue; and, the Veteran did not appeal the initial rating or effective date assigned following the grant of service connection, the matter is not in appellate status or before the Board at this time. 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 The Veteran seeks service connection for a lumbar spine disability, a hearing loss disability and migraine headaches. The Veteran's service treatment records (STRs) show that he was treated for lumbar strain in February 1992 and December 1993. The Veteran maintains that his current back disability is related to his initial back pain in service. A VA examiner in March 2009 noted the in-service treatment for back pain, and noted the Veteran's reports of current private treatment for low back pain with epidural steroid injections. The examiner did not have access to the medical records in question, and indicated that the injections described by the Veteran did not sound like epidural steroid injections. Upon examination of the Veteran's spine, the impression was chronic lumbosacral strain. With regard to whether the Veteran's lumbar pain was related to low back pain strains in service, the examiner first indicated that lumbar strain is a soft tissue muscular injury. The examiner stated that the Veteran did well until about 1998 and the pain recurred. The examiner indicated that the Veteran was doing heavy work at that time. With a normal x-ray and a soft tissue problem, the examiner opined that it was less likely than not that the Veteran's current back pain was related to pain that he had in service. After the examiner proffered that opinion, the Veteran submitted additional private treatment records relevant to his claim of service connection for a lumbar spine disability. A private treatment report from March 2009 and a private MRI report from September 2009 show that the Veteran received "trigger point injections" for chronic mechanical lumbosacral pain syndrome with documented trigger points. The September 2009 MRI indicates an L3-L4 annular disc bulge with mild facet hypertrophic changes productive of minimal bilateral neuroforaminal stenosis; and, an L4-L5 annular disc bulge with mild bilateral neuroforaminal stenosis noted. In this case, additional pertinent evidence was added to the claims file after the VA examiner provided the opinion in March 2009 regarding the likely etiology of the Veteran's current back pain. As noted above, the additional evidence shows that the Veteran has disc bulges at L3-4 and L4-5; and, that he was receiving trigger point injections for back pain. Because the VA opinion was provided without this knowledge, it is not adequate for purposes for which it was administered. Moreover, the examiner did not take into account the Veteran's reports of continuity of symptoms since service. Governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment. Green v. Derwinski, 1 Vet. App. 121 (1991); Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 C.F.R. § 3.326 (2000). The Veteran's lumbar spine should be reexamined to obtain the current nature and likely etiology of any current lumbar spine disability. Notably, in his substantive appeal to the Board, the Veteran asserts that he did not do heavy work because he was a painter. However, a November 2010 VA joint examination report indicates that the Veteran's occupation involved installing seats in busses, using screwdrivers and wrenches. On examination, the examiner should attempt to obtain a full occupational history. Regarding the Veteran's claim of service connection for a hearing loss disability, the RO denied the claim because a VA examination of March 2009 revealed that the Veteran did not have a current hearing loss severe enough to be considered a hearing loss disability for VA purposes. However, the Veteran subsequently submitted private treatment records dated in 2010 which appear to show an increased hearing loss such that it would be considered a hearing loss disability for VA purposes. In addition, a private physician, who appears to be an otolaryngologist, although that is not entirely clear, opined that the Veteran had a moderate bilateral sensorineural hearing loss that was most likely noise-induced. In light of this evidence the Veteran should be afforded a contemporaneous VA medical examination to assess the level of hearing loss, if any, and to obtain an opinion as to whether any such hearing loss as likely as not had its onset in service, particularly given the STRs noting transient hearing loss in service. Regarding the claim of service connection for headaches, the Veteran has not yet been afforded a VA examination to address the Veteran's contentions that his current headaches are related to headaches in service. At the Veteran's personal hearing before a DRO at the RO in August 2010, he testified that he began having chronic headaches after he was hit on the head with a brick in service. Indeed the STRs confirm that the Veteran was treated on one occasion in August 1993 after he was hit in the head with a brick by a shipmate. The STR notes that the Veteran presented to the emergency room with a cut to the head. On examination, there was a 1/2 inch laceration to the top of his skull. The laceration was cleaned and 5 sutures were applied. Based on the above findings, the Veteran has reported that he has had chronic headaches since an incident in service when he was hit in the head with a brick. The STRs corroborate the Veteran's reports of treatment for a laceration to the skull, and the Veteran is competent to report headache pain since service. VA outpatient treatment records located in the Veteran's Virtual VA File (VVA) show current complaints of headaches. In light of the foregoing, VA's duty to assist requires that the Veteran must be afforded a VA examination to determine whether the Veteran has a current chronic headache disability, claimed as migraines, and if so, whether they had their onset during service or are otherwise related to service, including the head injury in service. Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has not been afforded a VA examination with respect to the issue of service connection for headaches. The Veteran should be accorded a VA examination to address the etiology of any current headache disability, including but not limited to migraine headaches. Importantly, while the Veteran is competent to report that he has headaches, and has had headaches ever since the in-service head injury, he is not necessarily competent to provide a competent medical opinion as to whether his current headaches are part of a chronic headache disability that is related to an injury in service, as he is not shown to possess the medical expertise necessary to make this type of determination. Accordingly, a VA examination is necessary. Finally, because the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the Veteran should be asked to submit any pertinent private treatment records not already of record; or, he should submit proper authorization for VA to obtain any such records on his behalf. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all non-VA sources of treatment for his lumbar spine disability, hearing loss, and/or headaches since discharge from service, if any, that have not already been associated with the claims file. In particular, the Veteran should provide, or authorize VA to obtain, any pertinent private records which are not already of record. 2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran not already of record, and particularly those generated from August 2012. 3. Thereafter, schedule the Veteran for an appropriate orthopaedic examination regarding his claim of service connection for a lumbar spine disability. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests, including, but not necessarily limited to, x-rays, must be performed, and all findings reported in detail. The examiner is specifically requested to set forth the Veteran's current disabilities involving the lumbar spine. If there are multiple diagnoses, the examiner should specifically opine as to the likely etiology of each disability. In so doing, the examiner is asked to opine as to whether any diagnosed lumbar spine disability at least as likely as not (50 percent probability or greater) began in or is related to his active service. The examiner should consider the VA and private records which note the disc bulges, as well as the Veteran's self-reported history of continuity of symptoms since service. A complete rationale for all opinions is requested. 4. Also schedule the Veteran for an appropriate audiological examination regarding his claim of service connection for a hearing loss disability. The claims file must be made available to, and reviewed by, the examiner, and the examiner must note in his report that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. The examiner is specifically requested to set forth the Veteran's current audiometric findings; and, to reconcile these findings with the other evidence of record, including the audiograms in the STRs, as well as the findings from the VA examination(s) in March 2009 and the private audiogram from July 2010. In so doing, the examiner is asked to opine as to whether the Veteran has a hearing loss disability for VA purposes, and if so, whether any hearing loss disability at least as likely as not (50 percent probability or greater) began in or is related to his active service. The examiner should consider the STRs which clearly show significant threshold shifts in service, as well as the private audiometric findings from July 2010, and any additional pertinent evidence added to the record pursuant to this remand. A complete rationale for all opinions is requested. 5. Then, schedule the Veteran for a VA neurological examination to determine the current nature and likely etiology of any headache disability, migraine or otherwise. The claims folder must be made available to and reviewed by the examiner in conjunction with the requested study. Any indicated tests should be conducted. The examiner in this regard should elicit from the Veteran and record a full clinical history referable to the claimed migraine headaches. The examiner should opine as to whether the Veteran's headache disability, is at least as likely as not (a probability of 50 percent or greater) had its onset during service. The examiner should consider the STRs which show a head laceration in service, as well as the Veteran's reported history of headaches since service. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC), and an appropriate period of time allowed for response before the case is returned to the Board. The appellant 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). _________________________________________________ MICHAEL A. PAPPAS 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).