Citation Nr: 1325089 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 08-29 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for impingement syndrome and degenerative joint disease (DJD) of the shoulders, i.e., bilateral shoulder disability, including as secondary to cerebrovascular disease, diabetes mellitus, type II (DMII) and peripheral neuropathy. 2. Entitlement to service connection for migraine headaches, including as secondary to cerebrovascular disease. 3. Entitlement to an initial disability rating in excess of 10 percent for cerebrovascular disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to May 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the San Juan, Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Decision Review Officer (DRO) of the RO (DRO hearing) in September 2009. A transcript of that hearing has been associated with the claims file. At that time, he withdrew his appeal for service connection for median and sciatic nerve conditions. See 38 C.F.R. § 20.204 (2012). A March 2010 RO decision granted his claim for service connection for dizziness as secondary to his service-connected cerebrovascular disease and assigned an initial 10 percent rating retroactively effective from April 3, 2008, the date he had requested service connection for this associated disability. He did not, in response, separately appeal either this initial rating or effective date, so this claim is no longer at issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). In an August 2012 decision, the Board remanded the claims of whether there is new and material evidence to reopen the previously denied claim for service connection for PTSD and, if so, whether service connection is warranted for this or other mental illness, including depression, entitlement to service connection for a bilateral shoulder disability and entitlement to service connection for migraine headaches, to the RO via the Appeals Management Center (AMC). In this decision, the Board also awarded a 10 percent disability rating for cerebrovascular disease and its associated residuals from November 1, 2007 to April 2, 2008. The Board also remanded the issue of entitlement to an initial disability rating in excess of 10 percent for cerebrovascular disease for further development. In an August 2012 rating decision, the Appeals Management Center (AMC), effectuated the Board's decision and awarded an initial disability rating of 10 percent for cerebrovascular disease, effective November 1, 2007. In January 2013, the AMC awarded service connection for vascular dementia. The January 2013 supplemental statement of the case (SSOC) only addressed the issues of entitlement to service connection for impingement syndrome and DJD of the shoulders, i.e., bilateral shoulder disability, including as secondary to cerebrovascular disease and DMII, and service connection for migraine headaches, including as secondary to cerebrovascular disease. With respect to the Veteran's PTSD and other mental illness claim, his representative in the April 2013 Informal Hearing Presentation reported that, "[w]hile the appeal was in remand status, the AMC granted service connection for dementia as secondary to stroke" and that "it appear[ed] that [this] decision resolved the issue of service connection for other mental illness." Therefore, as the Veteran's representative indicated the grant of service connection for vascular dementia would satisfy the appeal regarding the Veteran's claim for service connection for PTSD or other mental illness, this is considered a full grant of the benefit sought on appeal. Therefore, this issue is no longer before the Board. 38 C.F.R. § 20.204 (2012). A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. An SSOC was issued in January 2013, which addressed this additional evidence. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately deciding, these claims, it is necessary to ensure they are fully developed and receive all due consideration. VA has a duty to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate these claims, unless no reasonable possibility exists that such assistance would aid in substantiating them. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). VA Compensation Examinations for Medical Nexus Opinions Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). The duty to assist requires that VA make reasonable efforts to obtain relevant records that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A.§ 5103A(b)(1); 38 C.F.R. § 3.159(c). The duty to assist also requires that VA provide medical examinations or obtain medical opinions when necessary to make a decision on claims. 38 C.F.R. § 3.159(c)(4). A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of disability, establishes that a Veteran suffered an event, injury, or disease during his service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the types of evidence that "indicate" a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.) That said, a recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In deciding a claim, the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof. This includes the duty to address arguments a veteran has specifically made as it relates to the adequacy of any given VA examination. Bilateral Shoulders The Veteran has claimed that his bilateral shoulder disability is secondary to his cerebrovascular disease and DMII. In his September 2009 DRO hearing, the Veteran testified that his private physician, Dr. G., stated that the bilateral shoulder disability was possibly related to either his DMII or associated peripheral neuropathy. The Board remanded this claim for additional development including an attempt to obtain the records from Dr. G. regarding the opinion that the Veteran had testified about. The Court has held that the connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim for service connection. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). This assertion nonetheless triggered VA's duty to notify the Veteran of the type of evidence necessary to complete his application for this benefit, including need to obtain confirmation that this is indeed this doctor's opinion. 38 U.S.C.A. § 5103(a). The Board found that this type of supporting evidence was particularly important as a February 2008 VA compensation examiner opined that the Veteran's bilateral shoulder disability was less likely than not related to his service-connected DMII. The Veteran was sent a letter in August 2012 requesting that he submit the written opinion of any medical health care provider that had told him his bilateral shoulder disability was incurred in service or caused or aggravated by a service connected disability. He was also notified that VA would assist him in obtaining this opinion if he provided sufficient information to contact the physician who furnished the opinion. No response was received to this letter. The Board also observes the Veteran has submitted several pictures from what he reports as his service in Vietnam, which seem to indicate he was younger, dressed as a soldier, had an indentation in the left arm and one picture even appeared to include Vietnamese locals. In addition, recently the Veteran resubmitted a June 2006 statement, signed by his mother and siblings, with a translation from Spanish to English. His mother and siblings report that, around January 1966, they had received communication that the Veteran had been injured in the left arm and was in convalescence in the hospital. In considering the Veteran is service-connected for DMII, peripheral neuropathy and cerebrovascular disease, the medical evidence of record reflects the Veteran has been diagnosed with impingement syndrome and DJD of the bilateral shoulders, photographs and a lay statement from the Veteran's family both indicate an injury to the left shoulder, and the February 2008 VA examination opinion was furnished without any rationale, the Board finds that an adequate VA etiology opinion is required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral shoulder disability was incurred in service or was aggravated by his service-connected cerebrovascular disease, DMII, or peripheral neuropathy. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters, 601 F.3d at 1276; Allen, 7 Vet. App. 439; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The nature of the claimed disorder is such that a medical opinion based on a review of the claims folder and examination of the Veteran would be of great value in evaluating the claim. Migraine Headaches The Veteran claims that his migraine headaches are secondary to his service-connected cerebrovascular disease and has also alleged that headaches first occurred immediately after separating from active service. See September 2009 DRO hearing. The Board remanded the claim for service connection for migraine headaches in August 2012 for further development, including a VA examination with opinions. A VA examination for headaches was provided in August 2012 and the examiner furnished opinions regarding whether the Veteran's migraine headaches were incurred in or related to his service or were proximately due to or the result of his service-connected cerebrovascular disease with supporting rationale. However, it does not appear there is an opinion specifically addressing aggravation of migraine headaches by cerebrovascular disease and the examiner's rationale does not discuss the issue of aggravation of migraine headaches by cerebrovascular disease. The August 2012 VA examiner specified that it was less likely than not that migraine headaches were incurred in or caused by the claimed in-service injury, event or illness and it was less likely than not that migraine headaches were proximately due to or the result of the Veteran's service connected condition, in this case, his service connected cerebrovascular accident. The rationale in this opinion indicates that the relationship between headache, migraine and stroke is complex and that these conditions could be temporally related, although studies had not definitively proven a causal association. While this opinion discusses causation, it also indicates that there may be some relationship between cerebrovascular accident, migraines and headaches. As such, the issue of whether the Veteran's migraine headaches were aggravated by his service-connected cerebrovascular accident has not yet been addressed. See Allen, 7 Vet. App. 439. In considering the Veteran is service-connected for cerebrovascular disease, the medical evidence of record reflects he has been diagnosed with migraine headaches, the absence of any discussion of whether the Veteran's migraine headaches were aggravated by his service-connected cerebrovascular disease in the August 2012 VA examination, and the August 2012 VA examiner's rationale indicating a relationship other than causation may exist between these disabilities, the Board finds that an adequate VA etiology opinion is required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches are aggravated by his service-connected cerebrovascular disease. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters, 601 F.3d at 1276; Allen, 7 Vet. App. 439; Barr v. Nicholson, 21 Vet. App. at 311. The nature of the claimed disorder is such that a medical opinion based on a review of the claims folder and examination of the Veteran would be of great value in evaluating the claim. Cerebrovascular Disease In the August 2012 decision, the Board awarded a 10 percent disability rating for cerebrovascular disease and its associated residuals from November 1, 2007 to April 2, 2008. The Board also remanded the issue of entitlement to an initial disability rating in excess of 10 percent for cerebrovascular disease for further development, to include providing an appropriate VA examination to reassess the severity of the cerebrovascular disease as well as ascertaining all other present residuals and the extent and severity of any residuals found. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When, as here, the existing medical evidence in the file is inadequate to address all potentially relevant concerns, VA must supplement the record by obtaining an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991), Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). An August 2012 VA examination of the central nervous system and neuromuscular diseases was provided. The VA examiner diagnosed the Veteran with vascular dementia and noted there was no residual neurological deficit from the Veteran's diagnosed cerebrovascular disorder and also noted the Veteran had mild cognitive impairment. Although the examiner found no residual neurological deficit from the cerebrovascular disease, the opinion appears to indicate the Veteran at least had both vascular dementia and mild cognitive impairment as residuals of cerebrovascular disease. In the January 2013 rating decision, the RO awarded service connection for vascular dementia and notified the Veteran that they would schedule him for an examination to determine the severity of his condition. To date, it does not appear that such an examination has been scheduled. In the April 2013 Informal Hearing Presentation, the Veteran's representative also noted that it does not appear that an examination to determine the severity of the Veteran's cerebrovascular accident residuals had been scheduled. Therefore, the representative argued that the case was not ripe for appellate review as there was not full compliance with prior remand instructions. The case must therefore be remanded for additional development to include the previously requested VA examination to determine the severity of cerebrovascular disease and any residuals, including vascular dementia and mild cognitive impairment. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 U.S.C.A. § 5103A (West 2002). VA Medical Records As the record reflects the Veteran had received continuing treatment at VA and the last VA medical records associated with the file are from August 2012, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent medical records adequately identified by the Veteran, to include all VA medical records from August 2012 to the present. All records which are not duplicates of those already in the claims file should be associated with the claims file. The RO/AMC should document whether or not these documents were available. 2. Obtain a supplemental VA opinion regarding the Veteran's claim of entitlement to service connection for a bilateral shoulder disability as secondary to his cerebrovascular disease and DMII. The claims file, including a complete copy of this remand and the potentially relevant findings in service, must be made available to and reviewed by the examiner for the complete history, so the opinion is fully informed. The examiner is asked to answer the following: (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently bilateral shoulder disability, to include impingement syndrome and degenerative joint disease, or whatever the appropriate diagnosis, was incurred during the Veteran's active military service or, or is otherwise related to any disease, event, or injury during his service, including the reported injury to the left arm. Because it does not appear to have been considered when previously examining the Veteran, this examiner should specifically note the photographs from service indicating some type of injury to the left arm and the June 2006 lay statement furnished by the Veteran's mother and siblings, which is competent evidence of their being informed of his injury to the left arm in service. (b). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed bilateral shoulder disability, to include impingement syndrome and degenerative joint disease, or whatever the appropriate diagnosis, was aggravated or permanently worsened beyond the natural progression of the disorder by his service-connected cerebrovascular disease, DMII, or peripheral neuropathy. (c). If it is determined that the Veteran's bilateral shoulder disability was aggravated by his service-connected cerebrovascular disease, DMII, or peripheral neuropathy, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. It is imperative the examiner provide a comprehensive report of his findings - including complete explanations for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 3. Obtain a VA supplemental opinion regarding the Veteran's claim of entitlement to service connection for migraine headaches. The claims file, including a complete copy of this remand and the potentially relevant findings in service, must be made available to and reviewed by the examiner for the complete history, so the opinion is fully informed. The examiner is asked to answer the following: (a). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed migraine headaches were aggravated or permanently worsened beyond the natural progression of the disorder by his service-connected cerebrovascular disease. (b). If it is determined that the Veteran's migraine headaches were aggravated by his service-connected cerebrovascular disease, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. It is imperative the examiner provide a comprehensive report of his findings - including complete explanations for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 4. Schedule the Veteran for a VA compensation examination to reassess the severity of the cerebrovascular disease, including ascertaining all other present residuals of it. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical history. The examination shall include all diagnostic testing or evaluation deemed necessary. After a complete review of the Veteran's claims file, an interview and physical examination of the Veteran, the examiner is directed to identify all symptoms associated with the Veteran's service-connected cerebrovascular disease, so any aside from the dizziness that already has been determined service connected as secondary to (associated with) this disease and separately rated as 10-percent disabling. It therefore is essential the examiner not only identify but also describe the severity of each identified manifestation of this disease. The examiner is also asked to comment on the impact of the severity of the Veteran's cerebrovascular disease and all identified residuals on the his employability and activities of daily living. And there must be discussion of the underlying medical explanation concerning this, as well. 5. Ensure these opinions are responsive to the questions posed. If not, take corrective action. 38 C.F.R. § 4.2. 6. Advise the Veteran in writing that it is his responsibility to report for the VA examinations, to cooperate with the development of his claims, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). If he does not report for any ordered examination, documentation must be obtained that shows that notice scheduling the examination was sent to his last known address prior to the date of the examination. It also must be indicated whether any notice that was sent was returned as undeliverable. 7. Ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 8. Then readjudicate these claims in light of this and all other additional evidence. If they continue to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further consideration of these claims. 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). _________________________________________________ KELLI A. KORDICH 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).