Citation Nr: 1303960 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 07-38 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for migraine headaches. 2. Entitlement to a rating higher than 20 percent for hallux valgus and hammertoes of the left foot. 3. Entitlement to a rating higher than 20 percent for hallux valgus of the right foot. 4. Entitlement to a rating higher than 10 percent for peripheral neuropathy of the left lower extremity. 5. Entitlement to a rating higher than 10 percent for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Rhett D. Klok, Attorney at Law ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied the Veteran's petition to reopen a previously denied claim of service connection for migraines. The RO also denied claims of entitlement to increased ratings for hallux valgus of the feet with hammertoes of the left foot, each foot evaluated as 20 percent disabling, and for peripheral neuropathy of the lower extremities, each lower extremity evaluated as 10 percent disabling. The decision below addresses the Veteran's petition to reopen his previously denied claim for service connection for migraines. Adjudication of the underlying merits of that claim, as well as the other claims on appeal, is deferred pending completion of the development sought in the remand that follows the decision. FINDINGS OF FACT 1. In a February 2004 rating decision, the RO denied the Veteran's petition to reopen a previously denied claim for service connection for headaches. The Veteran did not appeal that decision. 2. Evidence received since the February 2004 decision is new, relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. A February 2004 rating decision that denied the Veteran's petition to reopen a previously denied claim for service connection for headaches is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2012). 2. Since the prior final denial of the Veteran's claim of service connection for headaches, new and material evidence has been received; hence, the requirements to reopen the claim have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a February 2004 rating decision, the RO denied the Veteran's petition to reopen a previously denied claim for service connection for headaches. The Veteran did not appeal, so the decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2012). In November 2006, the Veteran sought to reopen his claim. Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed on or after August 29, 2001, Title 38, Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, as indicated above, the last final denial pertinent to the claim of service connection for headaches was the February 2004 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran filed his original application for service connection for headaches in June 1997. The RO initially denied the claim in July 1997 and, in so doing, found that the Veteran had not established an etiological link between his claimed headaches and service. The Veteran did not perfect an appeal of this decision, which therefore became final. The Veteran attempted to reopen the claim in October 2000; the RO denied his petition to reopen in a February 2004 rating decision that also became final. The Veteran now asserts, in part, that he has migraine headaches that are related to his time in service. Alternately, the Veteran now contends that he experiences migraines as a result of his service-connected major depressive disorder and that service connection is thus warranted on a secondary basis. Evidence of record in 2004 included records of the Veteran's treatment with both private and VA treatment providers, as well as his service treatment records. Review of his service treatment records reflects that the Veteran was seen on two occasions in service for complaints of headaches. In June 1981, he complained of having had a headache for five days and stated that he got such severe headaches about twice a year. He was diagnosed with psychosomatic headaches. In July 1982, the Veteran was seen for complaints of headaches and sinus drainage. No diagnosis was provided. At his separation medical examination, no headaches or other neurological problems were noted. Review of post-service treatment records reflects that the Veteran was assigned a diagnosis of headaches as early as February 1995. In April 1995, his private physician submitted a letter diagnosing him with headaches and noting that he reported a history of headaches for three or four years. Similarly, a VA treatment record dated in August 1995 notes that the Veteran complained of having experienced headaches for one-and-a-half years. A later private treatment note from April 2000 documents that the Veteran complained of experiencing headaches for the past four years. Evidence added to the record since the RO's February 2004 denial concerning the Veteran's claim for service connection for migraines includes additional records of VA and private treatment the Veteran has received since that date. In April 2007, the Veteran also submitted a statement to VA concerning his migraines, claiming that they developed or are aggravated by his depression. (The Board notes that service connection is in effect for major depressive disorder.) Review of this newly submitted evidence reflects that the Veteran is currently diagnosed with migraines. In November 2010, his treating VA neurologist opined that the etiology of the migraines "is likely to be multi-factorial" but that his poor sleep habits stemming from his service-connected psychiatric disability are "most likely a big contributor to his headaches." In addition, a VA treatment provider in June 2011 found the Veteran to have depression and sleep disturbance "aggravated by migraine causing disability." Furthermore, the Board notes that the Veteran has submitted a statement to VA in which he attributes his current migraines to his service-connected major depressive disorder. As such, the Board finds that the evidence, in the form of the Veteran's claims and his VA physicians' statements concerning a possible etiological link between the Veteran's migraines and his service-connected major depressive disorder, is "new" in the sense that it was not previously considered by agency decision makers. The Board also finds that the newly submitted evidence is not cumulative or duplicative of evidence previously considered and is thus "material" for purposes of reopening the Veteran's claim. In this regard, the Board notes that, at the time of the February 2004 rating decision, the RO denied the Veteran's petition to reopen his previously denied claim for service connection because he did not have evidence establishing an etiological link between his claimed headaches and service. Prior to the receipt of the above-identified evidence, the RO had not received or reviewed evidence supporting the Veteran's contention that he had migraines related to his time in service, or to service-connected disability. Newly submitted evidence, however, reflects that the Veteran has submitted statements indicating that he believes his current migraines are caused or worsened by his service-connected depression. In addition, his VA treatment providers have stated that there exists a possible link between his service-connected major depressive disorder and his claimed migraines. Because they provide support for the finding of an etiological link between the Veteran's claimed migraines and his service-connected psychiatric disorder, this evidence adds to the record in a way that it should be considered new and material. The Board finds, therefore, that the identified evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). Accordingly, new and material evidence has been submitted, and the criteria for reopening the previously denied claim for service connection for migraines have been met. ORDER New and material evidence to reopen a claim of service connection for migraines has been received; to this limited extent, the appeal of this issue is granted. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for entitlement to service connection for migraines, as well as his claim for entitlement to higher ratings for hallux valgus and hammertoes and peripheral neuropathy of the lower extremities. A review of the Veteran's claims file reflects that he has received ongoing treatment at the Ralph H. Johnson VA Medical Center (VAMC) in Charleston, South Carolina. Records in the file specifically document treatment at the Charleston VAMC dated most recently in June 2011. However, the record indicates that the Veteran has continued to obtain treatment at the VA facility more recently than June 2011. The Board acknowledges that the RO has sought records of the Veteran's treatment at the Charleston VAMC for the time period ending in June 2011. It does not appear, however, that the RO searched for any records for the period more recent than June 2011 from the Charleston VA facility. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, as the identified VA medical records may have a bearing on the Veteran's claims, on remand the agency of original jurisdiction (AOJ) must attempt to obtain the above-identified medical records, along with any other examination or treatment records from the Charleston VAMC, and associate any records obtained with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2012). The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection on a secondary basis is warranted when it is shown that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that this includes disabilities aggravated or made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Regarding the Veteran's service connection claim, the Board acknowledges that the Veteran contends that he has migraines that he believes are directly related to military service. Alternately, the Veteran has contended that his migraines are caused or worsened by his service-connected major depressive disorder. Regarding diagnosis of the Veteran's migraines, the Board acknowledges that service treatment records reflect that he was treated in June 1981 for complaints of headache, which was diagnosed as psychosomatic headaches, and again in July 1982 for complaints of headache and sinus drainage. However, his March 1983 separation medical examination reflected a normal neurological system. Post-service records document that the Veteran has sought treatment for headaches with VA and private treatment providers since 1995. In November 2010, his treating VA neurologist opined that the etiology of the migraines "is likely to be multi-factorial" but that his poor sleep habits stemming from his service-connected psychiatric disability are "most likely a big contributor to his headaches." In addition, a VA treatment provider in June 2011 found the Veteran to have depression and sleep disturbance "aggravated by migraine causing disability." However, at a February 2010 VA examination, the VA examiner opined only as to whether there exists a direct etiological relationship between the Veteran's migraines and service. The examiner answered this question in the negative, looking to the many years between the Veteran's separation from service and his first treatment for headaches in finding that a direct relationship was not likely. No opinion as to whether the Veteran's service-connected major depressive disorder has caused or chronically worsened his migraines was provided. Once VA undertakes to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr, 21 Vet. App. at 311; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Although the February 2010 VA examiner conducted adequate evaluation of the Veteran's physical condition at the time, the Board notes that the VA examiner did not provide an adequately reasoned opinion as to whether the Veteran's currently diagnosed migraines have been caused or worsened by his service-connected major depressive disorder. Because the VA examiner did not provide an opinion concerning a relationship between the Veteran's current migraines and his service-connected major depressive disorder, the VA medical opinion obtained to date is inadequate. See 38 C.F.R. § 4.2 (2012) (providing that where an examination report does not contain sufficient detail, it is inadequate for evaluation purposes); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is required. In light of the above considerations, the Board concludes that another medical examination and opinion are needed. Under these circumstances, evidentiary development is needed to fully and fairly evaluate the Veteran's claim of service connection for migraines, including as secondary to service-connected major depressive disorder. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (holding that where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). Specifically, the AOJ must arrange for the Veteran to undergo VA examination by a qualified professional, who must review the Veteran's claims file and his assertions and offer a well-reasoned opinion as to whether the Veteran's current migraines have been caused or aggravated by his service-connected major depressive disorder. The findings of the November 2010 VA neurologist and June 2011 VA treating physician, as discussed above, must be thoroughly discussed in the context of any negative opinion. Regarding the Veteran's claims for increased ratings for his service-connected hallux valgus and hammertoes and peripheral neuropathy of the lower extremities, review of the claims file reflects that he was provided VA examinations in January 2007 and October 2008. Report of the January 2007 examination noted that the Veteran complained of constant pain in his feet, with the right greater than the left. He stated that he could no longer run and was limited in walking to 50 yards or standing five minutes without pain. He complained of numbness in the calves bilaterally on standing for long periods of time. Physical examination revealed a callus and pes planus on the right foot, with normal sensation of the right lower extremity and no pain on manipulation of the right foot. The Veteran's left foot was noted to have two tender calluses, as well as ankylosis of the first, second, and third toes. Decreased sensation was noted over the foot, as was a "diminished arch." Strength was 5/5 in both lower extremities, and range of motion produced no pain in the feet. The examiner diagnosed the Veteran with status post surgical repair of hammertoes and bunions in the feet bilaterally, as well as peripheral neuropathy in the left lower extremity without confirmation via electrodiagnostic study. No peripheral neuropathy in the right lower extremity was found. Report of the October 2008 VA examination reflects that the Veteran again complained of constant pain in his feet, with the left worse than the right. He stated that his custom orthotic inserts did not provide significant pain relief. He also complained of numbness in the first, second, and third toes on the left, as well as the left mid-foot, with no numbness in the right foot reported. The Veteran again stated that he could no longer run and was limited in walking to 50 yards or standing five minutes without pain. He was noted to walk with a limp. On physical examination, the Veteran was found to have pes planus on the right, with no pain on manipulation and normal sensation and strength of the right foot. The Veteran's left foot was noted to have calluses, as well as ankylosis of the first, second, and third toes and decreased sensation in the left foot. The foot was found to have a diminished arch, but no pain on manipulation of the left foot was noted. The examiner diagnosed the Veteran with status post seven surgeries to treat hammertoes and bunions on the feet bilaterally, as well as peripheral neuropathy of the left lower extremity. The Veteran underwent a general medical examination in May 2011. Although not focused specifically on the current severity of the Veteran's lower extremity disabilities, the examination reflects that the Veteran complained at the time of constant pain in his feet, as well as swelling, and reported using a cane and orthotic inserts. He stated that he was unable to walk more than 20 yards or stand more than 15 minutes. The examiner noted uneven shoe wear and calluses on the Veteran's feet and observed him to walk with a limp. The Veteran further complained of numbness in his feet, including constant numbness of the toes bilaterally and on the left foot. Physical revealed normal sensation in the lower extremities bilaterally, with the exception of decreased sensation to the left toes. Normal muscle strength, muscle tone, and deep tendon reflexes were noted. The feet were noted to be tender to palpation on the plantar surfaces of the feet bilaterally, as well as to the right toes. No pain on range of motion was noted. In addition, the Veteran has stated on multiple occasions, including in June and December 2009 statements to VA, that his lower extremity disabilities have worsened since the most recent VA examination, which occurred in October 2008. In addition, the Veteran's representative has stated in February 2010 and September 2012 submissions that the Veteran's hallux valgus and hammertoes and peripheral neuropathy of the lower extremities have worsened in the years since the most recent VA examination and that a new VA examination is therefore required. The Board further notes that when evaluating disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Johnson v. Brown, 9 Vet. App. 7 (1996). In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension (C&P) Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. The Board notes that where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination). The Board notes further that statements made by the Veteran and his representative suggest that his hallux valgus and hammertoes and peripheral neuropathy of the lower extremities have worsened since his last examination, which occurred more than four years ago. In light of this evidence, therefore, a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran's service-connected hallux valgus and hammertoes of the feet and peripheral neuropathy of the lower extremities. See 38 U.S.C.A. § 5103A. In addition, in a statement received by VA in May 2011, the Veteran requested that he be provided with a hearing at the Columbia RO. In further correspondence with the Board intended to clarify the nature of the hearing he requested, the Veteran, through his representative, specified in a December 2012 letter that he wished to have a hearing before a Decision Review Officer sitting at the Columbia RO. Thus, remand is required to provide the Veteran the opportunity to be heard before a decision is made on his claims. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran must be given opportunity to supplement the record on appeal. He should be told of the need for authorization to enable VA to help obtain any additional pertinent evidence not currently of record. 2. The AOJ must obtain from the Charleston VAMC any available medical records pertaining to the Veteran's evaluation or treatment at any time from June 2011 to the present. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) (2012) regarding requesting records from Federal facilities. Any other sources of treatment records identified by the Veteran should also be contacted. All records and/or responses received should be associated with the claims file. If any records sought are determined to be unavailable, the Veteran must be notified of that fact pursuant to 38 C.F.R. § 3.159(e) (2012). 3. After associating with the claims file all available records and/or responses received pursuant to the above-requested development, the Veteran must be scheduled for VA examinations and notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claims. See 38 C.F.R. § 3.655(b) (2012). Headaches-The VA examination is necessary to determine the etiology of any current migraines. The VA examiner must review the Veteran's claims file and medical history, examine the Veteran, and provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any diagnosed migraines have been caused or made chronically worse by the Veteran's service-connected major depressive disorder. The findings of the November 2010 VA examining neurologist and the June 2011 VA treating physician must be discussed in the context of any negative opinion. The examiner must thoroughly review the Veteran's claims file, to include a copy of this remand. A well reasoned opinion must be provided with a detailed explanation for all conclusions reached by the reviewer. Citations to the record or relevant medical principles should be included as necessary to explain the opinion, and a complete rationale must be given for all opinions and conclusions expressed. Feet and Lower Extremities-The examiner must provide a detailed assessment of the current severity of the Veteran's service-connected hallux valgus and hammertoes and peripheral neuropathy of the lower extremities. The examiner must make all findings necessary to apply the rating criteria, paying particular attention to assessing the severity of the Veteran's symptoms. A complete rationale must be provided for all opinions expressed. Clinical findings must also include whether, during the examination, there is objective evidence of pain on motion of the Veteran's feet (if pain on motion is present, the examiner must indicate at which point pain begins); weakness, excess fatigability, and/or incoordination associated with the Veteran's feet; and whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups or with repeated use. The examiner must equate such functional losses to "moderate," "moderately severe," or "severe" disability of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. This should be done for each foot. The examiner must also identify the level of impairment and the particular peripheral nerve(s) affected, or seemingly affected, for any neurological impairment associated with the Veteran's service-connected peripheral neuropathy of the lower extremities. Any necessary diagnostic testing must be accomplished. The level of nerve impairment for each such nerve must be equated with "mild," "moderate," "moderately severe," or "severe" disability. (If additional examination is required by a specialist to address any question, such examination should be scheduled.) 4. The AOJ must ensure that the examination reports comply with this remand and the questions presented in the examination request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ must schedule the Veteran for a hearing before a Decision Review Officer (DRO) at the Columbia RO. The AOJ must notify the Veteran and his representative of the date and time of the hearing, and give them the opportunity to prepare for the hearing. The DRO may further develop the case and re-adjudicate as deemed appropriate. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified. The appellant 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. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs