Citation Nr: 1336170 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-35 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for disability of the upper extremities, to include as secondary to service-connected disabilities. 2. Entitlement to service connection for a headache disability, to include as secondary to service-connected disabilities. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel REMAND The Veteran served on active duty from April 1968 to January 1970. These matters initially came before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2012, the Board remanded these matters for further development. Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, the Veteran claims that he has tinnitus which is related to exposure to loud noises in service associated with military weaponry. He was afforded a VA audiologic examination in May 2012 and was diagnosed as having tinnitus. The audiologist who conducted the examination indicated that the Veteran's claims file was not reviewed and opined that his tinnitus was not likely ("less likely than not"/"less than 50 percent probability") caused by or a result of military noise exposure. She explained that there was no clear nexus between the onset of tinnitus and noise exposure from the military, which the Veteran left in 1970. The examiner who conducted the May 2012 VA examination subsequently reviewed the Veteran's claims file. However, no new opinion as to the etiology of his tinnitus was provided. The May 2012 opinion in insufficient because it is not accompanied by any specific explanation or reasoning. Rather, the rationale that was provided is essentially a restatement of the opinion that there is no nexus between the Veteran's current tinnitus and in-service noise exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Thus, a remand is necessary to afford the Veteran a new VA examination in order to obtain an adequate opinion as to the etiology of his tinnitus. With respect to the claim of service connection for a headache disability, the Veteran contends that he began to experience headaches in service and that they have continued in the years since that time. In the alternative, he claims that his headaches are related to his service-connected disabilities and the medications used to treat the disabilities. A VA examination was conducted in February 2009 and the Veteran was diagnosed with headaches. The physician who conducted the examination opined that the headaches were unrelated to diabetic retinopathy with cataracts or hypertension. He reasoned that diabetic "neuropathy" was not associated with pain or headaches. Hypertension can cause headaches in hypertensive crises, but the Veteran's blood pressured as documented in his VA treatment records had all been stable and below 141 systolic over the previous 2 months. Thus, his headaches were likely ("more likely than not") due to causes other than diabetic neuropathy or hypertension. The examiner additionally explained that the Veteran's headaches had a postural component, as they were worse when he was supine at night. Structural abnormalities that could cause intracranial pressure were a consideration and warranted further medical evaluation. The Veteran had an elevated "ESR" at the time of the February 2009 examination with some temporal tenderness. The February 2009 examination is inadequate because the examiner did not acknowledge or discuss the Veteran's reports of headaches in service and of a continuity of symptomatology in the years since service, and did not otherwise provide any opinion as to whether his current headaches are directly related to service. See Nieves-Rodriguez, 22 Vet. App. at 295 (an adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination)). Additionally, the February 2009 opinion only addressed whether the Veteran's headaches were caused by his service-connected disabilities. However, service connection may also be granted for a disability that is "aggravated" by a service-connected disability and no opinion has been provided as to any possible aggravation. 38 C.F.R. § 3.310 (2013). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2013); see 38 C.F.R. § 19.9 (2013). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2013). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). Evidence associated with the Veteran's claims file, including an October 2005 VA general medical evaluation note and an April 2012 statement from the Veteran's wife to her United States senator, indicate that the Veteran is in receipt of Social Security Administration (SSA) disability benefits for an unspecified disability. The United States Court of Appeals for Veterans Claims has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). The medical records related to the SSA's disability determination have not yet been associated with the claims file and may be relevant. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records relied upon to make the decision. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any evidence from the SSA, schedule the Veteran for a VA examination to determine the etiology of his current tinnitus. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For any current tinnitus diagnosed since April 2006, the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current tinnitus had its onset during service, is related to the Veteran's reported noise exposure in service, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on any tinnitus diagnosed since April 2006 and the Veteran's reported noise exposure in service. (The examiner should assume that the Veteran's reports of noise exposure in service are accurate.) The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report noise exposure in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. (The absence of evidence of treatment for tinnitus in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.) If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. After all efforts have been exhausted to obtain and associate with the claims file any evidence from the SSA, schedule the Veteran for a VA examination to determine the nature and etiology of any current headache disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review. For any current headache disability identified (i.e. any headache disability diagnosed since April 2006), the examiner shall answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the current headache disability had its onset during service, is related to the Veteran's reported headaches in service, is related to exposure to herbicides in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the current headache disability was caused (in whole or in part) by the Veteran's service-connected end stage renal disease, bilateral non-proliferative diabetic retinopathy with cataracts, diabetes mellitus with erectile dysfunction, and/or hypertension, or any medications used to treat any of these disabilities? (c) Is it at least as likely as not (50 percent probability or more) that the current headache disability was aggravated (made chronically worse) by the Veteran's service-connected end stage renal disease, bilateral non-proliferative diabetic retinopathy with cataracts, diabetes mellitus with erectile dysfunction, and/or hypertension, or any medications used to treat any of these disabilities? In formulating the above opinions, the examiner must acknowledge and comment on any headache disability diagnosed since April 2006, the Veteran's reports of headaches in service and of a continuity of symptomatology in the years since service, his conceded exposure to herbicides in service, his contention that his headaches are related to medications taken for his service-connected disabilities, and the February 2009 examiner's statement that the Veteran's headaches had a postural component and may be related to structural abnormalities. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report headaches in service, his symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or a continuity thereof, the examiner must provide a reason for doing so. (The absence of evidence of treatment for headaches in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.) If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones, 23 Vet. App. at 389. (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. The AOJ shall review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 5. If a benefit on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).