Citation Nr: 1324982 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 06-08 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for residuals of a head and neck injury, to include headaches and nightmares. 2. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, as secondary to a service-connected disability. 3. Entitlement to an effective date prior to October 22, 2004 for the grant of service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to June 1989. These matters come before the Board of Veterans' Appeals (BVA or Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Veterans Law Judge in June 2007. A copy of the transcript is of record. In November 2007, September 2011 and December 2012, the Board remanded the issues on appeal for additional development. The RO issued a supplemental statement of the case in May 2013 and the appeal is again before the Board. The issue of entitlement to special monthly compensation for aid and attendance has been raised by the record, but has 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 issues of entitlement to service connection for residuals of a head and neck injury, to include headaches and nightmares and entitlement to an effective date prior to October 22, 2004 for the grant of service connection for tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's acquired psychiatric disorder is shown to be aggravated by his service-connected chronic renal insufficiency. CONCLUSION OF LAW A depressive disorder was aggravated by the Veteran's service-connected chronic renal insufficiency. 38 U.S.C.A. §§ 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). It appears as though the new regulatory amendment poses a new restriction on claimants. Nonetheless, because his claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, as this version is more favorable. See generally VAOGCPREC 7-03 and VAOPGCPREC 3-00. The Board finds that the requirements for a grant of secondary service connection have been met with respect to his acquired psychiatric disorder claim. Various treatment records reflect diagnosis of a depressive disorder. See February 2005 VA examination, February 2013 VA examination. Thus, current disability is established. Further, there is no dispute that he is service-connected for chronic renal insufficiency. Turning to the crucial medical nexus question, the Board notes that a February 2013 VA examiner opined that although the Veteran's acquired psychiatric disorder was less likely than not related to service, after reviewing the Veteran's treatment records and prior VA examinations "his depressive disorder was at least as likely as not triggered by lack of employment and financial stress and later aggravated by his multiple medical conditions including end stage renal failure." A reasonable reading of this medical professional's opinion is that the Veteran's service-connected chronic renal insufficiency is a contributing factor for aggravation of his depressive disorder. The degree of this aggravation was not established. Based on the evidence above, and giving the benefit of the doubt to the Veteran, the Board finds that the objective evidence supports a finding that his acquired psychiatric disorder, to include a depressive disorder, was aggravated by his service-connected chronic renal insufficiency. For the foregoing reasons, the claim of entitlement to service connection for a depressive disorder is granted on a secondary basis. ORDER Service connection for an acquired psychiatric disorder, to include a depressive disorder, is granted. REMAND Service Connection Residuals of a Head and Neck Injury- Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The December 2012 BVA remand requested that an addendum medical opinion be obtained as a July 2009 VA examination was inadequate. Specifically, the Board noted that the Veteran had been hospitalized for two weeks during service for his head and neck injury and that he reported a history of headaches during his separation examination report in January 1989. The Board specifically noted that the VA examiner did not address the Veteran's notation of headaches in 1989 during service and offered no rationale as to why the current headaches are attributable to a reported April 1993 gunshot wound. The May 2013 VA examiner provided a negative etiological opinion regarding the Veteran's headaches. However, he specifically noted that he could not locate in any of the documented evidence a headache disorder during service or in the civilian record immediately after leaving service. He additionally noted that he could not locate any head injury sufficient to cause a traumatic brain injury while in service. However, the Board notes that the Veteran is claiming residuals of a head and neck injury, to include headaches. Service treatment records clearly reflect that the Veteran suffered a cervical sprain due to a motor vehicle accident in service. See September 1988 Inpatient Treatment Record. Moreover, treatment records dated in December 1984, May 1986, June 1986, September 1986, and April 1987, all reflect complaints of headaches. The Veteran additionally reported experiencing frequent or severe headaches in his separation examination report of medical history. As such, the evidence directly contradicts the VA examiner's findings that there was no treatment for headaches in service. Therefore, the Board finds that the requested opinion was not obtained. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, on remand, the Veteran should be accorded a pertinent VA addendum opinion. Earlier Effective Date- In an August 2012 rating decision, the RO effectuated a grant of service connection for tinnitus, with an evaluation of 10 percent effective October 22, 2004. In an October 2012 statement, the Veteran, through his representative, expressed disagreement with the effective date assigned. The Board finds that the October 2012 communication is a notice of disagreement as to the August 2012 rating decision. See 38 C.F.R. 20.201. When there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to a different examiner than the May 2013 examiner(s). If the examiner determines that an examination is necessary, one should be scheduled. After a review of the record, to include all medical records and lay statements contained therein, the examiner should offer an opinion regarding the following: a) Based on a full review of the record, is it at least as likely as not (at least a 50 percent probability) that the Veteran's current headache disorder had its onset during service, or is in any other way causally related to his active service? The VA examiner should specifically note the various in-service complaints of headaches found in the service treatment records. b) Based on a full review of the record, is it at least as likely as not (at least a 50 percent probability) that the Veteran suffers from a disability of the head/neck that can be etiologically related to his military service? A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. The VA opinions must be reviewed to ensure that they are in complete compliance with the directives of this remand. If the reports are deficient in any manner, the RO must implement corrective procedures. 3. Upon completion of the above, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, provided an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration, as appropriate. 4. A statement of the case, containing all applicable laws and regulations, on the issue of entitlement to an effective date prior to October 22, 2004 for the grant of service connection for tinnitus, must be issued, and the Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to this issue is perfected within the applicable time period, then such should return 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). These claims 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs