Citation Nr: 1343202 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 10-36 193A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for a traumatic brain injury (TBI), also claimed residuals of a head injury. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from an November 2009 rating decision of the VA RO in Muskogee, Oklahoma. In February 2011, the Veteran testified at a local hearing before a Decision Review Officer (DRO) at the RO in Muskogee, Oklahoma. A copy of this transcript has been associated with the claims file. In an October 2012 rating decision, the RO granted service connection for degenerative arthritis of the lumbar spine and degenerative arthritis of the left knee. There is nothing in the record to indicate that the Veteran has disagreed with the effective date or the disability rating assigned to these disabilities by the RO. For that reason, those issues are not in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he was in a motorcycle accident during the last 6 months of his active duty service, which resulted in migraine headaches, a TBI, and a right shoulder injury. A review of the service treatment records reveals that the Veteran complained of pains in the shoulder region in July 1973. In a separate July 1973 service treatment record, the Veteran complained of a headache along with coughing and sinus congestion. In a November 1973 service treatment record, the Veteran complained of headaches. It was also noted in his service treatment records that the Veteran was in a motorcycle accident on August 15, 1975, in Olongapo, during which he injured his right shoulder region. An August 16, 1975, service treatment record revealed a sprained right shoulder. An August 18, 1975, service treatment record noted that x-ray reports of his right shoulder were within normal limits. He had full range of motion and sensation. He was noted as having a contusion on his right shoulder region and abrasions on his right acromioclavicular and iliac regions. Despite the fact that the Veteran's service treatment records document treatment following a motor vehicle accident, the Veteran asserted at the February 2011 hearing that records of his in-service treatment are missing from his file. Specifically, he asserted that, after 3 days of treatment at Subic Bay, he was sent to Clark Air Force Base for treatment. The Veteran asserted that, because he served in the Navy, treatment records from an Air Force base were not made a part of his file. The Veteran's service treatment records were requested and associated with the claims file, to include records of his treatment at the Subic Branch Dispensary. However, due to his contentions regarding treatment at Clark Air Force Base, the Board finds that the issues on appeal should be remanded in order to attempt to obtain any available records from treatment the Veteran received at Clark Air Force Base. Additionally, VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. With regard to the Veteran's claims for service connection for migraine headaches and a TBI, the claims file contains a June 1978 medical record from Medical Neurologists, Inc., in which the Veteran reported that he used to have minor headaches over the years but he never had much of a problem with it until the previous month when he had a severe headache and had to go to the emergency room. It was determined that the Veteran's headaches were most likely on a vascular tension basis. A private chiropractor noted in an August 2010 medical record that the Veteran was in a motorcycle accident in the Philippines, in which he suffered injuries to his head, neck, both shoulders, and both arms and legs. This chiropractor noted that the Veteran has suffered with bad headaches and other pain symptoms since this accident. The chiropractor noted that his medical opinions were based upon examination; a review of medical/service record; his education, training and experience; reasonable medical probability; and reasonable medical certainty. The chiropractor opined that the injuries, impairments, and disabilities set forth in his diagnosis and this report were as likely as not due to and a consequence of this Veteran's service. In a March 2012 VA treatment record, it was noted that the Veteran had headaches associated with neck pain. While the chiropractor indicated in August 2010 that the Veteran has headaches and other pain problems as a result of an in-service motor vehicle accident, he failed to comment on the fact that the medical evidence of record reflects that the Veteran had a concussion with loss of consciousness and a neck injury in April 2008 following a fall from a ladder. Moreover, the chiropractor failed to discuss the other pertinent medical evidence of record, such as the 1978 conclusion that the Veteran's headaches were likely on a vascular tension basis. As such, the Board finds that the necessity for a VA examination is shown for the proper assessment of the Veteran's claims. 38 U.S.C.A. § 5103A (West 2002). The Veteran should be scheduled for a VA examination to determine whether he has a current headache disability of any kind or a TBI that was caused or aggravated by his active duty service. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). With regard to the Veteran's claim for service connection for a right shoulder disability, the Veteran was provided a VA examination for his right shoulder disability claim in April 2010. However, if an only if, any new service treatment records relevant to the Veteran's claim are obtained, the Veteran should be provided another VA examination for this claim. Finally, upon remand, any and all available VA treatment records that have not yet been associated with the claims file should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all service treatment records from the Veteran's reported treatment at Clark Air Force Base in August 1975. If no records are available, a Formal Finding of Unavailability regarding these records should be rendered, and the Veteran should be notified of such a finding. 2. Obtain any and all pertinent VA treatment records that have not yet been associated with the claims file. 3. Schedule the Veteran for an appropriate VA examination for his claimed migraine headache disability and his claimed TBI. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. Then, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran has a current headache disability of any kind that began in or was caused or aggravated by his active duty service. The examiner should also render an opinion as to whether it is at least as likely as not that the Veteran has a current TBI of any kind that began in or was caused or aggravated by his active duty service Review of the entire file is required; however, attention is invited to the June 1978 diagnosis of vascular tension headaches and the August 2010 private chiropractor opinion. The examiner should explain the reasons behind any opinions provided. The term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. If, and only if any new service treatment records pertinent to the Veteran's right shoulder disability claim are obtained, schedule the Veteran for an appropriate VA examination for his claimed right shoulder disability. The examiner should review the claims file, conduct any necessary tests and studies, and elicit a complete history from the Veteran. All findings should be reported in detail. Then, the examiner should render an opinion as to whether it is at least as likely as not that the Veteran has a current right shoulder disability of any kind that began in or was caused or aggravated by his active duty service. The term "as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should explain the reasons behind any opinions provided. 5. When the development has been completed, the case should be reviewed on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that his cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2013). These claims 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 (Court) 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). _________________________________________________ Bethany L. Buck 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 Court. 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).