Citation Nr: 1324609 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-06 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for headaches, to include as secondary to a service-connected cervical spine disability. 2. Entitlement to service connection for a disability of the sixth thoracic vertebra. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from July 1985 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for headaches and a thoracic spine disorder. The Veteran requested a hearing before a Veterans Law Judge in his February 2010 substantive appeal, VA Form 9. He was sent a notice letter informing him that he was scheduled for a hearing on June 14, 2011. The Veteran failed to appear for that hearing, and as of this time, he has not requested for that hearing to be rescheduled and has not provided good cause for failing to appear for his June 2011 hearing. Accordingly, the Board will proceed with adjudication of the Veteran's claims. The Board finds that there are VA treatment records that yet need to be obtained. Specifically, in his November 2008 claim for his thoracic spine disorder, the Veteran indicated that he has sought treatment for that condition at the Fargo, Minneapolis, and New Brighton VA Medical Centers. The Board acknowledges that it appears that Fargo and Bismarck VA treatment records have been obtained, but it does not appear that the Minneapolis or New Brighton records have been sought. Also, a review of the claims file discloses that the most recent VA treatment records in the claims file are from January 2010. Thus, a remand is necessary at this time in order to obtain any outstanding VA treatment records. Additionally, information from the Veteran regarding any private treatment that he may have received for either claimed disorder, including any treatment from APR Advanced Diagnostics in Cumberland, Maryland, should be solicited on remand. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b). Finally, the Board finds that new VA examinations are required for both of the Veteran's claimed disorders as the current VA medical opinions are inadequate at this time. First, the Board notes that the Veteran's thoracic spine was examined in February 2009, at which time it was noted that he had a small disc herniation at the T5-6 space per a Magnetic Resonating Imaging (MRI) scan and intermittent thoracic strains, though no strain was noted at that time. The examiner noted that the Veteran had a motor vehicle accident in service (which was the cause of his cervical spine disability), but ultimately concluded as follows: "Unfortunately, without an imaging study performed in the late 1980s after the motor vehicle accident and without documentation of thoracic pain or a thoracic examination immediately after the motor vehicle accident, this issue cannot be resolved without resorting to mere speculation." The Board notes that in an October 1989 VA examination within 3 months of his discharge from service, the Veteran complained up "upper back and lower neck area" pain. This complaint appears to be contradictory to the February 2009 examiner's statements that the Veteran did not demonstrate any thoracic area pain complaints in association with his motor vehicle accident or within close proximity to service. Moreover, the examiner's opinion does not give any definite opinion and states it would be mere speculation without a contemporaneous imaging scan. While the Board acknowledges that a contemporaneous imaging scan would be highly relevant and beneficial in this case, unfortunately such is not available and does not appear to have been taken contemporaneous with the injury. This fact, however, should not limit the examiner's ability from providing an adequate, non-speculative opinion on the basis of the evidence of record, which evidence includes the Veteran's history. Therefore, a remand is necessary in order for another VA examination to be afforded to the Veteran and for an adequate medical opinion to be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Likewise, the Veteran underwent a VA examination relative to his headaches in June 2009, and a May 2011 addendum opinion was obtained. The Board notes that the Veteran complained of headaches at the October 1989 VA examination that was noted above. In the May 2011 addendum opinion, the June 2009 examiner did not note the Veteran's complaint of headaches within 3 months of his discharge from service and in close proximity to his in-service motor vehicle accident. The Board does acknowledge that the Veteran has argued only that his headaches are associated with his cervical spine disability. Consequently, the examiner's opinion focused solely on whether the Veteran's headaches were secondary to his cervical spine disability. However, in light of the headache complaints so close to discharge to military service after the Veteran was medically released from service due to his motor vehicle accident and subsequent cervical spine disability, the Board finds that another VA medical opinion which addresses both direct and secondary service connection theories is necessary. See Id. Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Send the Veteran appropriate notice with respect to his claims of service connection for headaches and a thoracic spine disorder, both to include as secondary to his cervical spine disability. Such notice should be compliant with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Obtain any relevant VA treatment records from the Minneapolis and New Brighton VA Medical Centers, and any other VA medical facilities-other than Fargo and Bismarck VA Medical Centers-that may have treated the Veteran since discharge from service and associate those documents with the claims file. If no such records are available and further attempts to obtain those records would be futile, such should be noted in a formal finding of unavailability and the Veteran should be notified. 3. Obtain any relevant VA treatment records from the Fargo and Bismarck VA Medical Centers, or any other VA medical facility that may have treated the Veteran, since January 2010 and associate those documents with the claims file. 4. Ask the Veteran to identify any private treatment that he may have had for his headache or thoracic spine disorders, which is not already of record, to include APR Advanced Diagnostics/Radiology in Cumberland, Maryland, as well as any cervical spine procedure that was performed in Bethesda, Maryland. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 5. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any headache disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should opine as to whether any headache disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include the noted motor vehicle accident therein. The examiner should specifically address the Veteran's complaints of headaches reported at the October 1989 VA examination, as well as any other pertinent evidence in the service treatment records and the post-service treatment records. The Veteran's lay evidence regarding onset of and medical history of his headaches should also be discussed. The examiner must also discuss whether any headache disorder-not shown to be related to service-is more likely, less likely or at least as likely as not caused by his service-connected cervical spine disability. The examiner should further opine whether the Veteran's headache disorder, should it not be related to service or caused by a service-connected disability, is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected cervical spine disorder. If aggravation is found, the examiner should quantify the approximate degree of aggravation to the best of his/her ability. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed explanation as to why this is so must be provided. The medical reasons for accepting or rejecting the Veteran's history and theories of entitlement should be set forth in detail. 6. Schedule the Veteran for a VA examination in order to determine the nature and etiology of any thoracic spine disorder. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should identify each thoracic spine disorder found, to include any arthritic condition thereof. For each identified thoracic spine disorder found, to include any disc herniation, the examiner should opine as to whether such disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include the motor vehicle accident therein. The examiner should specifically address the Veteran's complaints of upper back pain at the October 1989 VA examination as well as his lay statements regarding continuity of symptomatology since his motor vehicle accident. The examiner should additionally address the February 1999 and February 2009 x-rays demonstrating a normal or no dislocations of the thoracic spine, as well as the acute thoracic spine pain noted in a March 2004 VA treatment record. The examiner must also discuss whether any thoracic spine disorder-not shown to be related to service-is more likely, less likely or at least as likely as not caused by his service-connected cervical spine disability. The examiner should further opine whether the Veteran's thoracic spine disorder, should it not be related to service or caused by a service-connected disability, is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected cervical spine disability. If aggravation is found, the examiner should quantify the approximate degree of aggravation to the best of his/her ability. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed explanation as to why this is so must be provided. The medical reasons for accepting or rejecting the Veteran's history and theories of entitlement should be set forth in detail. 7. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims of service connection for headaches and a thoracic spine disorder, both to include as secondary to his cervical spine disability. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).