Citation Nr: 1334364	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  06-14 207A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Entitlement to service connection for degenerative disc disease and osteoarthritis of the lumbar spine as secondary to service-connected left rib fracture.

2. Entitlement to service connection for degenerative disc disease and osteoarthritis of the cervical spine (neck), to include as secondary to service-connected disabilities.

3. Entitlement to service connection for osteoarthritis of the bilateral hips as secondary to service-connected left rib fracture.

4. Entitlement to an evaluation in excess of 50 percent for migraine headaches.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel


INTRODUCTION

The Veteran had active military service from April 1964 to October 1969.

This case comes before the Board of Veterans' Appeals (Board) on appeal of May 2005 and February 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

In April 2011, a hearing was held before the undersigned Veterans Law Judge (VLJ) of the Board.  Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ explained the issue that is before the Board.  The representative and the VLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claim.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims.  Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim on appeal.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.

Procedural History 

In a September 2011 decision, the Board awarded a 50 percent evaluation for migraine headaches and remanded the service connection claims for cervical spine, lumbar spine and bilateral hip disabilities for further development.  The Veteran appealed the Board's decision to the Court which, in a February 2013 memorandum decision, vacated the portion of the Board's decision which addressed headaches and remanded the claim for reconsideration of an extraschedular evaluation.  While the memorandum decision purports to vacate the entirety of the Board's decision regarding headaches, the Board's award of a 50 percent evaluation for this evaluation has been effectuated by a September 2011 rating decision, and an effective date assigned.  Therefore, the Board will not disturb the previously awarded 50 percent evaluation, and will limit the current discussion to entitlement to an increased evaluation on an extraschedular basis only.

Finally, in September 2012, the Board again remanded the Veteran's service connection claims to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim.  The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal.


FINDINGS OF FACT

1. Resolving all doubt in favor of the Veteran, degenerative disc disease and osteoarthritis of the lumbar spine are etiologically related to his active service.

2. Resolving all doubt in favor of the Veteran, degenerative disc disease and osteoarthritis of the cervical spine (neck) are etiologically related to his active service.

3. Resolving all doubt in favor of the Veteran, osteoarthritis of the bilateral hips is etiologically related to his active service.

4. Manifestations of the Veteran's migraine headache disability, including but not limited to cluster headaches, nausea, vomiting, and photophobia resulting in severe economic inadaptability, are contemplated by the applicable schedular rating criteria.


CONCLUSIONS OF LAW

1. The criteria for service connection for degenerative disc disease and osteoarthritis of the lumbar spine have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012).

2. The criteria for service connection for degenerative disc disease and osteoarthritis of the cervical spine have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012).

3. The criteria for service connection for osteoarthritis of the bilateral hips have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012).

4. The criteria for an evaluation greater than 50 percent on an extraschedular basis for migraine headaches have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.124a, Diagnostic Code 8100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

VA's duty to notify has been satisfied through a number of letters sent to the appellant in January 2002 and May and October 2006 that fully addressed all notice elements.  These letters informed the appellant of what evidence was required to substantiate his claim, and of the appellant's and VA's respective duties for obtaining evidence.  The appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.  

On March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  The Board notes that the May 2006 letter provided this notice. 

The Board observes that both the May 2006 and October 2006 letters were sent to the Veteran after the initial adjudication of the Veteran's claim.  Nevertheless, the Board finds this error nonprejudicial to the Veteran.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  In this regard, the notice provided in the May 2006 and October 2006 letters fully complied with the requirements of 38 U.S.C.A. § 5103(a) (2009), 38 C.F.R. § 3.159(b) (2012), and Dingess, supra, and after the notice was provided the case was readjudicated and an April 2007 statement of the case was provided to the Veteran.  See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision).  

Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed.  

The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2012).  In this regard, the Veteran's service treatment, VA treatment records, and VA examination reports are associated with the claims folder. 

The Veteran was afforded VA compensation and pension (C&P) examinations in accordance with his claim for entitlement to an increased rating for headaches associated with residuals of head injury in December 2006, November 2008 and January 2010.  38 C.F.R. § 3.326(a) (2012).  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Additionally, an examination for rating purposes should contain sufficient detail and reflect the whole recorded history of a Veteran's disability, reconciling the various reports into a consistent picture.  See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2010).  

The Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a full reading of the VA medical records.  They consider all of the pertinent evidence of record, and provide a complete rationale for evaluations provided, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4) (2012).

As the Board's decision herein to grant service connection for lumbar spine, cervical spine and bilateral hip disabilities is a full grant of the benefits sought on appeal with respect to these claims, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations.

Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review.

Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).
Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Veteran asserts service connection for disabilities of the cervical spine, lumbar spine and bilateral hips as directly related to his period of active service.  Specifically, he contends these disabilities are the direct result of repeatedly jumping out of airplanes and helicopters while serving in Vietnam.  Initially, the Board observes the Veteran is in receipt of the Combat Infantryman Badge, Purple Heart and a Parachute Badge.  See Form DD-214.  Thus, his participation in parachuting activities during active service is conceded, and his alleged in-service back, neck and hip injuries would be consistent with the circumstances of his service.  38 U.S.C.A. § 1154(b) (West 2002).  STRs also note treatment for low back pain and a left hip injury in pertinent part.

The record clearly indicates the Veteran has been diagnosed with degenerative disc disease and osteoarthritis of both the cervical and lumbar spine as well as osteoarthritis of the bilateral hips.  The threshold question is whether there is an etiological relationship between the Veteran's current disabilities and his active service.  Hickson, 12 Vet. App. at 253. 

Significantly, the Veteran submitted a private medical opinion from Dr. G.A., D.O.  In his May 2012 statement, Dr. G.A. discussed the Veteran's pertinent medical history, including injuries to the hips and spine/back (including the lumbar, thoracic and cervical spines), as well as his performance as an infantry paratrooper, which required a significant number of jumps and drops from aircraft.  Ultimately, Dr. G.A. determined there is a "very strong probability" that the Veteran's current disabilities of his spine and hips originated in service, noting that these injuries resulted from a series of compounding injuries over the Veteran's entire period of service, with each subsequent injury adding its own "aggravating insult" to the Veteran's current complaints.  The examiner noted specifically that in preparing his report, he had reviewed and examined the "Record Before the Agency" (consisting of 1,652 pages), that contained all of the Veteran's VA treatment and examination records as well as all available personnel and service medical records contained therein; and he noted that he had obtained an extensive medical history from the Veteran.  In a second statement dated in January 2013, Dr. G.A. stated that subsequent to the VA's November 2012 letter, he had reviewed all of the Veteran's records starting January 2009 when an extensive oral history was obtained along with copies of 5 service medical records cited in his initial letter; and had reexamined the Veteran in January 2013.  He concluded that he stood by his initial findings of "origins being "during military services"."

The Board acknowledges two VA medical examiners have provided a negative etiological opinion in this case, based primarily on a lack of documented complaints of cervical/lumbar spine or bilateral hip pain for a lengthy period following service separation.  However, in neither the November 2011 VA opinion nor the December 2012 addendum did the examiner specifically address service treatment records showing treatment for back and hip injuries and the September 1969 separation history that the Veteran had pain and soreness in his low back, etiology unknown, that he went to sick call, and medications were prescribed with no relief; and the examiner did not specifically address the Veteran's report of continuous symptomatology in the neck, back, and hips since service.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim of service connection could be proven"); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that the VA examiner's opinion was inadequate where the examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service).  Further, the Board is mindful that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  When the evidence is in "relative equipoise, the law dictates that the Veteran prevails."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As such, in light of Dr. G.A.'s medical opinion and the circumstances of the Veteran's service, and resolving all doubt in favor of the Veteran, the Board concludes that service connection is warranted for degenerative disc disease and osteoarthritis of the cervical and lumbar spine, and osteoarthritis of the bilateral hips, as directly related to active service.

Increased Evaluation

The Veteran asserts entitlement to an evaluation in excess of 50 percent for his service-connected migraine headaches.  Initially, the Board observes that, at 50 percent, the Veteran's migraine headaches have been awarded the maximum schedular evaluation possible under applicable rating criteria.  See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012).

An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

In contemplating whether referral for extraschedular consideration is warranted, the Board has considered the Veteran's various statements throughout the record regarding the severity of his headaches, including frequency, duration, and clusters of symptomatology including, but not limited to, nausea, vomiting, photophobia, etc.  See, e.g., June 2005 statement, February 2013 memorandum decision at 11.  Initially, the Board notes that, by evaluating the Veteran's disability as migraine headaches, the Veteran's complaints of nausea, vomiting, photophobia, dizziness, etc., have been fully considered by the rating criteria.  Such a symptom complex is considered by the medical community when rendering a diagnosis of migraine headaches.  See, e.g., Dorland's Illustrated Medical Dictionary, 31st ed. at 1183 (noting a diagnosis of migraine headaches is "commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often photophobia.")

Furthermore, the current 50 percent evaluation assigned pursuant to Diagnostic Code 8100 contemplates "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability."  See 38 C.F.R. § 4.124a.  Thus, daily and/or prolonged headaches are contemplated by the rating criteria.  While "completely prostrating" is not defined by regulation, the Board observes prostration is defined by the medical community as "extreme exhaustion or powerlessness."  See Dorland's Illustrated Medical Dictionary, 31st ed. at 1554.  Thus, by including "completely prostrating" within the criteria for a 50 percent evaluation, the Board finds the rating criteria also contemplates the Veteran's descriptions of the type, severity and related symptomatology associated with his headaches that would lead to him feeling exhausted and powerless, even though they may not be specifically enumerated in the Diagnostic Code.

Considering the evidence in its entirety, with respect to the first prong of Thun, the Board in its capacity as the finder of fact finds that the manifestations of the Veteran's migraine headache disability, which result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, are adequately contemplated by the applicable rating criteria.  See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("[f]act-finding in veterans cases is to be done by the expert BVA [Board]...").  A comparison between the level of severity and symptomatology of the Veteran's headache disability with the established criteria found in the rating schedule for this disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology.

Even if it could be established that the available schedular evaluations for the Veteran's service-connected headaches are inadequate, which the Board does not find in this case, with respect to the second prong of Thun, the Veteran's disability picture does not present such an exceptional case so as to render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b).  The record does not show, nor does the Veteran allege, that his migraine headache disability results in frequent hospitalization.  In fact, it does not appear that the Veteran has been hospitalized at all for this disability.  Furthermore, as discussed above, the schedular criteria explicitly contemplates resulting "severe economic inadaptability," which would equate to marked interference with employment.  Therefore, marked interference with employment has been contemplated by the schedular criteria, so the existence of such interference with employment would not render the schedular criteria inapplicable, as required for an extraschedular evaluation under 38 C.F.R. § 3.321(b).

Finally, the Board observes that, while consideration of the second prong of Thun is not limited solely to frequent hospitalization or marked interference with employment, as noted by the February 2013 memorandum decision, neither the Veteran nor the record as a whole, suggests any other related factors exist in the Veteran's case that would constitute and exceptional or unusual disability picture.  The second prong of Thun has not been satisfied.

For the reasons discussed above, the Board determines that neither the first nor second prong of Thun have been satisfied in the instant case.  Therefore, referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.


ORDER

Service connection for degenerative disc disease and osteoarthritis of the lumbar spine is granted.

Service connection for degenerative disc disease and osteoarthritis of the cervical spine is granted.

Service connection for osteoarthritis of the bilateral hips is granted.

An extraschedular evaluation in excess of 50 percent for migraine headaches is denied.




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs