Citation Nr: 1332262 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-13 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial compensable rating for headaches associated with cervical strain. 2. Entitlement to service connection for a right elbow disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to October 1981. He also had service in the Army National Guard from April 1987 to October 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was subsequently transferred to the jurisdiction of the Portland, Oregon, RO. In September 2012, the Veteran and his spouse testified before the undersigned at a Board hearing at the RO. A copy of the transcript has been associated with the record. At the hearing, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 19.9(b) (2012). The appeal is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks an initial, compensable rating for headaches and service connection for a right elbow disability. Before the Board can adjudicate these claims, however, additional development is required. I. Private Treatment Records At the September 2012 Board hearing, the Veteran submitted a private medical record from Kaiser Permanente, indicating that he was receiving "arthrocentesis and injection of intermediate joint bursa." It is unclear if this record relates to the right elbow, as it is only a single page of what appears to be a larger medical record. Moreover, the most recent treatment records from Kaiser other than this single page date from September through November, 2002. On remand, VA should elicit authorization from the Veteran to obtain all relevant records from Kaiser from December 2002 to the present for consideration in adjudication of the claim. II. VA Examinations A. Headaches The evidence of record indicates that the Veteran's headache disability has worsened since his previous examination in December 2007. On December 2007 VA examination, the Veteran reported bifrontal and bitemporal throbbing headaches, occurring twice per week. The Veteran denied nausea, vomiting, photophobia, phonophobia, visual aura, focal weakness, numbness, and dysarthria. The examiner diagnosed the Veteran with chronic tension headache with cervicogenic component without migraine features. At his September 2012 Board hearing, the Veteran's spouse testified that the Veteran often wakes up with a bad headache, which affects his functioning. Board Hearing Tr. at 10. She also testified that the Veteran leaves work early to come home and lie down to take a nap. Id. at 11. She testified that he was having severe headaches on a daily basis. Id. The Veteran also reported dizziness and some nausea associated with the headaches. Id. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (Apr. 7, 1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA was required to provide a contemporaneous medical examination because the appellant presented evidence of a "material change" in his condition since the prior VA examination). The hearing testimony that the Veteran's headaches were worsening in frequency and severity indicates that his disability may have worsened since his last VA examination. Therefore, a more contemporaneous VA examination is necessary for the purpose of ascertaining the current severity of the Veteran's service-connected headaches. 38 C.F.R. § 3.327 (2013). B. Right Elbow Disability VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). The Veteran contends that service connection for a right elbow disability is warranted because this condition was caused by overuse of his right elbow while lifting bags of ice during a period of Active Duty for Training (ACDUTRA) in the National Guard. The Board finds that a VA examination assessing whether the Veteran has a current right elbow disability that was incurred during ACDUTRA is warranted in this case. In making this determination, the Veteran submitted a recent (yet undated) medical record at the time of his September 2012 Board hearing, indicating that he was receiving "arthrocentesis and injection of intermediate joint bursa." It remains unclear, however, if this injection is related to the Veteran's right elbow. The Board notes that prior to the Veteran's August 2007 claim for service connection, he was diagnosed with epicondylitis of the right elbow. See November 2002 private treatment record. As such, because there is competent evidence suggesting that the Veteran may have right elbow symptomology, the Board finds that the first McLendon element has been satisfied. Turning to the second McLendon element, the Veteran's private treatment records indicate that he was diagnosed with epicondylitis of the right elbow in a private treatment record dated in November 2002 due to "overuse." The Veteran also reported at this time that he may have injured his arm during National Guard exercises when he was manually unloading trucks of ice. The Veteran has also submitted several undated statements recounting his pain in his elbow after unloading ice during ACDUTRA in July 2002. Accordingly, because the evidence of record indicates that the Veteran may have suffered an injury from overuse of his right elbow during ACDUTRA, the second McLendon element has been satisfied. Further, turning to the third McLendon element, the Veteran's wife testified that since she has known him, the Veteran always complained of pain in his elbow. See Board Hearing Tr. at 19. The Veteran's wife is competent to testify regarding noticeable symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Accordingly, the Board finds that there is evidence of record indicating that the Veteran's right elbow disability may be associated with ACDUTRA, thereby satisfying the third McLendon element. Significantly, however, because there is insufficient medical evidence of record addressing whether the Veteran has a current right elbow disability that was incurred during ACDUTRA, a VA examination and medical opinion addressing the etiology of his right elbow disability is necessary for the Board to make a decision on this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to either submit all private records relating to his right elbow from Kaiser Permanente from December 2002 to the present or to alternatively provide authorization-via VA Form 21-4142-for VA to obtain such records (in addition to any other outstanding relevant private records). If the Veteran responds, contact each entity to obtain all adequately-identified medical records. Document all attempts to locate any such records, and follow procedures set forth in 38 C.F.R. § 3.159. 2. After the development outlined in item (1) is completed, schedule the Veteran for an examination to determine the nature and etiology of his claimed right elbow disability. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should provide a diagnosis of any right elbow disability present since the August 2007 claim for service connection. With respect to any right elbow disability diagnosed, the examiner should provide an opinion on the following question: Is it at least as likely as not (50 percent or greater) that such disability is related to the Veteran's overuse of his right elbow during a two-week training period in July 2002? In answering this question, the examiner's attention is directed to September and November 2002 private treatment record diagnosing epicondylitis and overuse of the right elbow. For purposes of this remand, the examiner is directed to accept as true that the Veteran experienced pain in his right elbow after unloading ice in July 2002 National Guard training. A complete rationale must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Schedule the Veteran for an examination to determine the current severity of his service-connected headaches. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. A report of the examination should be prepared and associated with the Veteran's VA claims file. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). _________________________________________________ Donnie R. Hachey Acting 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).