Citation Nr: 1328832 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-00 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for headaches, to include as secondary to a service-connected right shoulder strain disability. 2. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected right shoulder strain and low back strain disabilities. 3. Entitlement to a disability rating in excess of 40 percent for residuals of a low back strain (exclusive of the time period from April 30, 2009, to June 30, 2009, when a temporary evaluation of 100 percent was assigned). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from November 1996 to June 2001. Thereafter, she service in the Air National Guard until May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Roanoke, Virginia, currently has jurisdiction over the appellate claims. With regard to the Veteran's increased rating claim, from April 30, 2009, to June 30, 2009, she was assigned a temporary evaluation of 100 percent based on surgical treatment necessitating convalescence for her residuals of a low back strain. Thereafter, her rating for the low back disability was again evaluated as 40 percent disabling. 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 Although any additional delay is regrettable, the issues on appeal must be remanded for additional development. With regard to the service-connection claims, the Board finds that new VA examination and opinions are necessary because the existing opinions are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that once VA undertakes the effort to provide a medical examination, it must ensure that the examination is adequate for adjudication purposes). In March 2008, a VA examiner provided an opinion on secondary service connection for headaches. However, this opinion is inadequate because, first, the examiner did not provide any rationale whatsoever for the opinion and, second, the examiner did not specifically address whether the Veteran's right shoulder disability may have aggravated her headaches. Rather, the examiner only opined as to whether there was a causational relationship between the two disorders. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc) (indicating that service connection on a secondary basis is warranted when a current disability is either caused or aggravated by a service-connected disability). Likewise, the March 2008 VA opinion for the cervical spine is also inadequate. The examiner provided a negative opinion on secondary service-connection because the examiner felt that the disability was related to service on a primary basis. However, the examiner's opinion regarding direct service connection is based on an inaccurate factual premise: the examiner stated that the Veteran had "a cervical spine condition noted in her service medical records in 2001 . . . however, the radiologist report is no where [sic] to be found. I would have to conclude that at that time, she had a cervical spine injury and more likely than not did have degenerative or traumatic arthritis at that time due to the injury." (Emphasis added). However, it is significant to note that a review of the service treatment records reflects a January 2001 notation that the cervical spine X-ray showed "no acute changes" as read by the Air Force physician. Thus, the examining physician in 2001 did provide a report of the X-ray images taken at that time. Moreover, a later June 2002 X-ray of the cervical spine also was noted to be normal. The Board must therefore conclude that the March 2008 examiner's opinion is based on an inaccurate, or at least incomplete, factual history. Further, because the examiner's sole rationale for providing a negative opinion on secondary service connection was because it was felt that service connection was established on a primary basis, there is simply no meritorious explanation as to why the Veteran's cervical spine disorder was not caused by or aggravated by her service-connected disabilities. Thus, a remand for a new VA examination and opinion is required. Additionally, the Veteran's representative has argued that a remand for a VA examination is necessary with regard to the Veteran's increased rating claim for a low back disorder because her symptoms have increased. The Board agrees. The Veteran was last provided with a VA examination of the spine in January 2010, but, since that time, the Veteran has complained of increased symptoms. See, e.g. June 2010 VA treatment record (chronic back pain "gradually increasing in pain over the last several weeks") and July 2010 VA treatment report ("back[]pain getting worse"). VA's General Counsel has stated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (April 7, 1995) (stating that while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). Accordingly, the Veteran should be afforded another VA examination for the purpose of determining the current severity of her service-connected low back disability. Caffrey v. Brown, 6 Vet. App. 377 (1994). Finally, to the extent that the Veteran may have received any additional VA treatment for her headaches, cervical spine, or low back, recent treatment records should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records relevant to the remanded claims from August 2010 to the present. 2. The RO/AMC should obtain a new VA examination regarding the etiology of the Veteran's claimed headaches. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the examination. The examiner is requested to offer an opinion as to whether is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the Veteran's headaches are caused by or aggravated by her service-connected right shoulder strain disability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. The RO/AMC should obtain a new VA examination regarding the etiology of the Veteran's claimed cervical spine disorder. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the examination. (a) For all diagnoses of the cervical spine, the examiner is requested to offer an opinion as to whether is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the disorder is caused by or aggravated by her service-connected right shoulder strain and low back strain disabilities; and (b) For all diagnoses of the cervical spine, the examiner is requested to offer an opinion as to whether is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the disorder is related to an event, injury, or disease in service. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. The RO/AMC should obtain a VA examination regarding the nature and severity of the Veteran's service-connected low back disability. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the examination. (a) All pertinent symptomatology and findings must be reported in detail; and (b) When conducting range of motion testing, the examiner is directed to describe any functional loss resulting from factors (such as pain, flare-ups, etc.) impacting the Veteran's ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. To the extent possible, this should be expressed in terms of additional degrees of limitation of motion. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to service connection for headaches, entitlement to service connection for a cervical spine disorder, and entitlement to a disability rating in excess of 40 percent for residuals of a low back strain. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).