Citation Nr: 1338050 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-11 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for neck disability. 3. Entitlement to service connection for headaches, to include as secondary to a neck disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran had active service from September 1991 to July 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that to this point the issues of service connection for a neck disability and service connection for headaches have been adjudicated as one issue, but based upon the Veteran's statements the Board has decided to separate them. The Veteran's statements indicate that while his headaches could be related to his neck disability, they are in fact separate and distinct disabilities. Therefore, the Board has broadened its consideration accordingly. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 For the reasons expressed immediately below, the Board finds that the issues on appeal must be remanded for additional evidentiary development. With regard to the Veteran's right knee disability, the Board notes that the Veteran was afforded a VA examination in April 2011 for complaints of right knee pain. At that time, the Veteran reported that he had experienced a right knee strain in the 1990s, but had experienced other knee injuries since. X-rays of the Veteran's right knee were normal. The examiner found that based on the examination, there were not residuals of any right knee injury that occurred in service. However, in February 2012, a Magnetic Resonance Imaging scan (MRI) revealed that the Veteran had early arthritis of the right knee. The MRI report is not currently of record. Given the Veteran's right knee injury in service, his complaints of right knee pain since service, and the new evidence indicating a possible right knee diagnosis, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present right knee disability. With regard to the Veteran's claim of entitlement to service connection for his neck disability, the Veteran asserts, and a review of the Service Treatment Records (STRs) confirms, that he suffered two in-service injuries to his head and neck region. His first injury was incurred in December 1994 when, while working out, he experienced sharp pains in his neck from the middle of his head to his shoulder blade. The Veteran reported it was probably due to curls he was doing while exercising. The examiner diagnosed minor cervical strain and advised the Veteran to apply moist heat to the affected area and to take Motrin for the pain. The Veteran's second injury occurred in February 1995, when he was struck on the head with a bottle and was treated in non-urgent care. In April 2011, the Veteran was afforded a VA examination. At that time, the examiner diagnosed cervical strain but was unable to provide a nexus connecting the Veteran's current neck disability to his being hit on the head with a bottle in service without resorting to speculation. The examiner noted that a cervical spine series showed left foraminal narrowing due to uncovertebral spurring and degenerative changes. In March 2012 the Veteran was afforded another VA examination. A cervical spine X-ray revealed very minor degenerative changes. At that time, the VA examiner noted the Veteran's reports that his in-service cervical strain had gotten worse over the years. The examiner opined that it was less likely as not that the Veteran's neck strain was related to his neck injury while working out in service. The examiner related the current neck condition to the Veteran's intervening neck injury that occurred at his job in a juvenile detention center in 2004. In accordance with Barr v. Nicholson, "[a] medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." 21 Vet. App. 303, 311 (2007). First, the Board notes that the April 2011 VA examiner was unable to provide an opinion regarding the etiology of the Veteran's neck disability. With regard to the March 2012 VA opinion, while the examiner addressed the Veteran's injury in 1994 that he incurred while working out, she failed to address the injury the Veteran incurred in February 1995, when he was struck on the head with a bottle. Further, the March 2012 VA examiner diagnosed cervical strain, but failed to adequately address the X-ray findings of degenerative changes. In addition, the March 2012 VA examiner failed to consider the Veteran's statements regarding his symptoms in service and his statements of continuous neck symptoms since. For these reasons, the VA opinions of record are not adequate. Therefore, the Veteran's claims file should be returned to the March 2012 examiner for an addendum opinion regarding the nature and etiology of all currently present neck disabilities. With regard to the Veteran's claim of entitlement to service connection for headaches, the Board notes the Veteran's assertions at his April 2011 VA examination that he suffers from tension headaches. The Veteran reported that he would get headaches that ran from the top of his shoulder blade through the top of his forehead, and felt that they were related to his neck disability. As the Veteran has asserted that his headaches are related to his neck disability, the Board finds the issue of entitlement to service connection for headaches is "inextricably intertwined" with the issue of entitlement to a service connection for a neck disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that issues are considered "inextricably intertwined" when a determination on one issue could have a significant impact on the outcome of another issue). The appropriate remedy where there is an issue on appeal "inextricably intertwined" with a pending issue is to defer adjudication of the appellate issue until the issue pending has been adjudicated. Id. Accordingly, adjudication of the issue of entitlement to service connection for headaches is deferred until the issue of entitlement to service connection for a neck disability is adjudicated. However, if a positive opinion is obtained regarding service connection for the neck disability, then the Board directs that a VA examination should be obtained determining whether the Veteran's headaches are caused or chronically worsened by his neck disability. Additionally, current treatment notes, to specifically include the above discussed February 2012 right knee MRI report, should be obtained prior to a decision being rendered in this case. Finally, the Board notes that further development is in order to comply with the notice requirements of 38 U.S.C.A. § 5103 (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative with notice of how to substantiate a claim for secondary service connection in compliance with 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b), to include notice with respect to 38 C.F.R. § 3.310(a) and Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 2. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records, to specifically include the February 2012 VAMC right knee MRI report. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. The Veteran and his representative are to be notified of any unsuccessful efforts, to allow them the opportunity to obtain and submit these records for VA review. 3. Then the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present right knee disability. The claims files, to include any pertinent evidence in Virtual VA that is not contained in the claims file, must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner is asked to provide an opinion as to the following: a. Whether the Veteran currently has a diagnosable right knee disability, to include arthritis. b. If so, is it is at least as likely as not (a 50 percent or better probability) that any diagnosed right knee disability was incurred in or as a result of the Veteran's active duty service. In rendering this opinion, the examiner shall specifically comment on whether it is at least as likely as not that the Veteran's documented right knee injury and complaints of right knee pain in-service was the precursor to his current disability. The examiner should also address the Veteran's complaints of right knee pain since service. 4. Then, the Veteran's claims files, to include any pertinent evidence in Virtual VA that is not contained in the claims file, should be forwarded to the VA examiner who performed the March 2012 VA examination for a complete review of the claims files and an addendum opinion. If such examiner is unavailable, then to another appropriate examiner. Based on a review of the record, the examiner shall provide an addendum opinion as to whether it is at least as likely as not (a 50 percent or better probability) any currently present neck disability is etiologically related to the Veteran's active service. In rendering the opinion, the examiner shall address the following: a) the February 1995 in-service incident when he was struck on the head with a bottle; b) the X-ray findings of degenerative changes; and c) the Veteran's statements regarding his symptoms in service and his statements of continuous neck symptoms since. 5. After the above development is completed, if and only if a positive opinion is obtained with regard to the Veteran's neck disability, schedule the Veteran for a VA examination to determine the nature and etiology of his headaches. The claims file, to include any pertinent evidence in Virtual VA that is not contained in the claims file, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Based on an examination of the Veteran and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's headaches were caused (proximately due to) or chronically worsened (aggravated) by his neck disability. 6. A rationale for all requested opinions shall be provided, with citation to medical treatise, studies, etc., if appropriate. If an opinion cannot be provided without resorting to mere speculation, please provide a complete explanation stating why this is so. In so doing, you must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions. 7. After the RO or the AMC should undertake any other development it determines to be warranted and then readjudicate the Veteran's claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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). _________________________________________________ JONATHAN B. KRAMER 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).