Citation Nr: 1430335 Decision Date: 07/03/14 Archive Date: 07/10/14 DOCKET NO. 05-20 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for a left leg disorder. 3. Entitlement to service connection for a right leg disorder. 4. Entitlement to service connection for a chronic disability manifested by groin pain. 5. Entitlement to service connection for a chronic disability manifested by skull stiffness. 6. Entitlement to an initial rating in excess of 30 percent for migraine headaches. 7. Entitlement to a rating in excess of 40 percent for a cervical spine disorder. 8. Entitlement to a rating in excess of 20 percent for a thoracic spine disorder. REPRESENTATION Appellant represented by: Robert P. Walsh, Attorney WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to August 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal August 2003 and January 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the August 2003 rating decision, the RO denied entitlement to service connection for headaches, shoulder stiffness, left and right leg conditions, and groin pain and skull stiffness as secondary to cervical and thoracic spine disorders. In the 2006 decision, the RO, in pertinent part, granted entitlement to service connection for a headache disability and assigned an initial 30 percent disability rating. The RO also increased the rating for the thoracic spine to 20 percent effective September 26, 2003, and continued a 40 percent rating for cervical spine disorder. In a September 2008 decision, the Board denied an initial rating greater than 30 percent for the service-connected headache disability. The Board also addressed 12 other issues then on appeal. Specifically, the Board granted an effective date of April 1, 2003, for the award of service connection for depression. The Board denied a claim for earlier effective dates for the grant of a 20 percent rating for a thoracic spine disability, an earlier effective date for the award of a total disability evaluation based on individual unemployability (TDIU), and granted a 50 percent rating for depression. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2009, the parties to the appeal filed a Joint Motion for Partial Remand. Therein, they moved for the Court to vacate and remand that portion of the Board decision that denied a rating in excess of 30 percent for the service-connected headache disorder. The parties to the appeal asked the Court to affirm the Board's decision as to the other issues on appeal. In October 2009, the Court granted the motion, affirming the five issues on appeal, and vacated and remanded the Board's decision with respect to the evaluation of the service-connected headache disorder. In the September 2008 decision, the Board also remanded claims for service connection for a right shoulder disability, a left leg disorder, a right leg disorder, a chronic disability manifested by groin pain, a chronic disability manifested by skull stiffness, a rating in excess of 40 percent for a cervical spine disability, and a rating in excess of 20 percent for a thoracic spine disorder. In November 2010, the Board remanded the Veteran's claim of an increased rating for headaches for additional development, to include obtaining any ongoing treatment records and providing him with a VA examination. The Veteran and his spouse appeared and testified at a personal hearing in October 2007 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. The issue service connection issues, and increased ratings for cervical and thoracic spine disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT It is not shown that at any time during the appeal period the Veteran's migraine headaches were very frequent, completely prostrating and prolonged or that they produced severe economic inadaptability. CONCLUSION OF LAW A rating in excess of 30 percent for migraine headaches is not warranted. 38 U.S.C.A. §§ 1155, 5100, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As indicated above, the appeal here is from the rating decision that granted service connection and assigned the initial rating. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). An April 2007 statement of the case (SOC), properly provided notice on the downstream issue of an increased initial rating. An August 2013 supplemental SOC (SSOC) readjudicated the matter. The veteran has had full opportunity to participate in the adjudicatory process; he is exercising his right to appeal the rating assigned/pursue a higher disability rating. Regarding the duty to assist, all pertinent and identified treatment records have been associated with the claims file. The Board notes that the full records from the Veteran's in-service hospitalization may not be of record, as the Board is remanding for additional development regarding these records. However, as the Veteran is service-connected for his headaches and the injury occurred in the 1960s, the Board finds that a determination can be made on his claim for an increased rating based upon the medical evidence of his current disorder from the medical treatment records from 2001, Social Security Administration (SSA) records, VA examination reports, the available in-service treatment records, and the Veteran's lay testimony and statements. Remanding the claim due to any potential outstanding in-service records would not be beneficial and would slow the process of the Veteran's claim unnecessarily. He has been provided VA evaluations in December 2005 and May 2013. Additionally, the Veteran and his wife provided testimony at a Board hearing in October 2007. VA's duty to assist is met. Laws and Regulations Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. Where the rating involves the initial rating assigned with the grant of service connection, the entire period is to be considered on appeal, and separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the RO increased the rating for the veteran's migraine headaches to 30 percent for the entire appeal period. As the Board finds that the rating assigned encompasses the greatest degree of impairment due to migraine shown at any time during the appellate period, "staged ratings" are not warranted. Under Diagnostic Code 8100, migraine headaches resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a . In exceptional cases where the schedular evaluations are found inadequate the case may be referred for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b). Factual Background and Analysis In March 2002, the Veteran requested secondary service-connection for some disorders he felt were associated with his service-connected cervical spine disorder. He stated he had "numerous headaches." In this regard, the Board notes that service treatment records are negative for complaints or treatment for headaches. However, the Veteran did fracture part of his cervical spine in an accident in service. Records from in-service show that he underwent fusion surgery as well. An October 1966 VA examination noted that the initial fusion surgery failed and he had a posterior fusion thereafter. He reported a stiff neck, and was noted to have throat erythematous from smoking. He did not complain of headaches at that time. A neurological evaluation did not reveal any neurological disability. In June 2002, the Veteran was afforded a VA spine examination. He reported a "burning ache at the back of his skull which radiates upward to his skull and downwards through his shoulders." He reported his back pain limited his ability to walk, enjoy prior activities, and driving. He had moderate to severe occupational limitations due to his spine disorders. No neurological diagnoses were made during the examination. Private treatment records provided by the Veteran do not include treatment for headaches. A March 2002 neurological examination, by a private neurologist appears to be a full work up and included a general physical examination. He was assessed with femoral nerve apraxia, which was aggravating his early diabetic neuropathy. The report did not include complaints of headaches or a diagnosis of a headache disorder. In December 2005 the veteran appeared for a VA neurological examination. At that time, he complained of headaches in the occipital area brought on by reading and neck pain which occur three to five times a month and last a few hours. The Veteran reported that his headaches are not associated with an aura, nausea, vomiting, photophobia, phonophobia, or blurred vision. He stated they are only brought on by prolonged reading with flexion of the neck. He reported that he had been seen by a neurologist for his headaches "before" but that he was not seeing anyone at the time of the examination. The Veteran also reported that he did not take any medications specifically for his headaches, but stated that he felt they were being treated with the pain medications he takes for his orthopedic disabilities. The Veteran also reported that he had not worked in the last three years but when he was working his headaches used to require that he take days off from work. On examination, the Veteran was not in any distress, his cranial nerves were intact, and focal neurological signs were not elicited. The diagnosis was history of intermittent myofascial occipital headaches. At the October 2007 personal hearing, the Veteran described being in a motor vehicle accident in service, where he was an ejected passenger. He stated he was then a patient at Great Lakes Hospital for roughly one year. He reported that he underwent a fusion at Great Lakes Hospital and returned to light duty. However, he continued to have symptoms and was eventually seen by an orthopedist that discovered that his prior fusion was not holding. So he immediately underwent another fusion. His second fusion was roughly three or four months after his first fusion. The Veteran reported that he had supplied the VA with all the records in his possession, and when asked if there were any records not in the claims file, he stated that he had "been chasing this guy so long that [he didn't] think [that there were any outstanding records]." He stated that he takes around six Vicodin every day do to his serious orthopedic disabilities. He noted that he did not "know if [his] headaches are as bad as they were before, but taking this Vicodin, how could you know?" He then stated that he does still get headaches. The Veterans Law Judge asked if the Veteran's headaches were ever severe enough to require that he stay in bed, and the Veteran answered affirmatively. He stated again that he had headaches less often due to his use of Vicodin. But he guessed that if he wasn't taking the Vicodin that he would have headaches several times a month. He stated he called his pain a "headache" but that it was "more of a back of the head ache." He stated he knew his headaches "were still there" even though they were lessened by his medication, but that if he stopped taking his medication he felt that his headaches were return to their prior severity. As noted above, the Veteran's claim of entitlement to a rating in excess of 30 percent for migraine headaches was remanded by the Board in November 2010. The remand required that the Veteran be afforded a new VA examination. Following the Joint Motion for Remand and the Board remand, the Veteran did not turn in any ongoing treatment records for headaches. He did submit copies of his treatment at Great Lakes hospital and some of his service treatment records. Virtual VA contains a copy of the Veteran's May 2013 VA headache examination. The Veteran stated that he has daily headaches, which occur intermittently. He denied that they were incapacitating and he takes no medications other than his pain medication for multiple other physical conditions. He described his headaches as radiating up the back of his head to the top of his head. He stated they start in the morning. He did not experience non-headache symptoms associated with headaches, such as an aura prior to headache pain. His typical head pain lasted less than one day. The examiner noted that the Veteran does not have characteristic prostrating attacks of migraine headache pain or non-migraine headache pain. The examiner noted that no response was provided regarding whether the Veteran has very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted that the headaches did not impact the Veteran's ability to work. He stated that he worked as a tool and die maker, and that he last worked in 2002. He left primarily due to depression. He was found disabled by the Social Security Administration for his back disorder. The examiner reviewed the records and noted that there was no clinical record of treatment for headaches in the prior year. "These are not of an incapacitating nature and do not affect his employability. The Veteran admit[ted] that in relation to all of his medical conditions, the headaches affect him the least. There is no evidence to support that the Veteran's headaches are productive of severe economic inadaptability." In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) The Board finds that the Veteran is competent to describe his headache symptoms and that he is mostly credible in his statements. Notably, he stated that he had his headaches less often now that he is on pain medication for other disabilities. He "guessed" at the frequency his headaches would be if he was not on that medication. During his 2013 VA examination he reported that his headaches were not incapacitating, and that they were one of his lesser disabilities. Although the record shows the veteran having a problem with headaches, which at its worst, occur five times a month and requires bed-rest, the record is negative for objective evidence of the headaches causing severe economic inadaptability. As noted, the Veteran's statements regarding the frequency of his headaches and that they necessitated bedrest are confused by his recent statements that after beginning pain medication, his headaches are not as debilitating. There is no clear date range for when his headaches required bedrest and when they improved. This is especially true because the record does not contain treatment records for headaches. Although the Veteran and his representative alluded to treatment for headaches with a neurologist, the record only contains private neurologist records which do not include treatment for headaches. No date range for the treatment was provided and no specific missing records regarding headache treatment have been noted. Overall, the Veteran's statements, VA examination reports, and the lack of treatment records all support that he does not have headaches that are very frequent with completely prostrating and prolonged attacks. As noted, at his most recent examination he stated that he did not experience incapacitating headaches. Moreover, while the Veteran reported that his headaches caused him to take time off from work when he was employed, he stated that the main reasons he stopped working in 2002 were due to depression and back pain. SSA records in the claims file show that he was granted disability benefits for spine disorders and diabetes mellitus. The 2013 VA examiner opined that the Veteran's reported headache symptoms were not of a severity to cause severe economic inadaptability. The Board finds the examiner's opinion on the severity of the Veteran's symptoms to be more probative. Accordingly, the claim for a rating in excess of 30 percent for headaches must be denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 4.124a, Diagnostic Code 8100. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of Compensation for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record reflects that the manifestations of the Veteran's headaches addressed above are specifically contemplated by the schedular criteria. For instance, the Veteran has reported that his headaches require bedrest and happen up to five times a month. The rating assigned contemplates these impairments, and provides for an increased rating for additional symptoms and frequency. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to an initial rating in excess of 30 percent for migraine headaches is denied. REMAND Unfortunately, a remand is required in regards to the Veteran's service connection and remaining increased rating claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met. Notably, in the Board's September 2008 remand directives, the RO was to contact Great Lakes Hospital in an attempt to obtain all records from 1965 to 1966. Specifically, the RO was advised that: If any of the pertinent records are not available, or if the search for the records yields negative results, that fact should clearly be documented in the claims files, and the claimant notified in writing. Because these are Federal records, if they cannot be secured, a memorandum of unavailability must be prepared and added to the claims folders, and the veteran offered an opportunity to respond. In June 2010, the RO requested any available records from the National Personnel Records Center (NPRC). In July 2010, the NPRC responded that they can no longer honor requests from VA ROs directly, and that all requests must be made through the PIES system. In April and June 2013, the RO again requests available records from the NPRC via correspondence, and not through the PIES system. After further direction, in August 2013 the RO entered a PIES request for the Veteran's in-service treatment records from the Great Lakes Naval Hospital from May 1965 to 1966. The PIES system responded that the request was not adequate, and that a search was not possible without information on the allegation being researched and a one year date range. It does not appear the RO followed up with a more specific PIES request. The RO also did not furnish a formal finding of unavailability prior to proceeding with the claim as though the information were unavailable. As such, the service connection claims must be remanded so that the RO can complete the directives in the 2008 Board remand. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Veterans Appeals (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran provided copies of all the records in his possession, however this does not appear to be a complete accounting of his hospital treatment as it only includes records of one fusion, although the Veteran has repeatedly described the failure of his first fusion and the necessity of a second fusion. The Veteran's service connected disorders were remanded in 2008 for VA examinations as well. The claims file contains a printout from the Battle Creek VAMC in Detroit, Michigan that the Veteran failed to appear for examinations associated with his service-connection claims. The claims file does not contain a record of the Veteran and his representative receiving notice of these examinations. Notably, he reported to a May 2013 VA examination at the facility. As the service connection claims are being remanded for additional development, the Veteran should be provided with an additional opportunity to receive VA examinations. Additionally, the Veteran's increased spine ratings were remanded for additional notification in 2008. Although additional notice was provided, the Veteran has not received a VA examination to determine the current severity of these service-connected disabilities in nearly ten years. On remand, he should be afforded a current examination. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim.) Accordingly, the case is REMANDED for the following action: 1. The RO should follow up with the August 2013 PIES request by providing the additional information requested by the system to complete a search, if possible. Because these are Federal records, if they cannot be secured, a memorandum of unavailability must be prepared and added to the claims folders, and the Veteran offered an opportunity to respond. 2. After undertaking the above development to the extent possible, the RO/AMC should arrange for the veteran to be afforded another orthopedic examination. The claims folder and virtual records must be provided to the examiner for review in connection with the examination. Any necessary testing identified by the examiner, including x-rays, electromyography (EMG), and nerve conduction studies, should be undertaken as needed. Thereafter, after a review of the record on appeal and an examination of the veteran the examiner should provide answers to the following questions: Is it at least as likely as not that the Veteran has a right shoulder disorder, a right leg disorder, a left leg disorder, a chronic disability manifested by groin pain, and/or a chronic disability manifested by skull stiffness? If so, please provide specific diagnoses. As to every disorder diagnosed, is it at least as likely as not (a 50/50 probability or greater) that it was caused by the veteran's military service including the May 1965 motor vehicle accident? As to every disorder diagnosed, is it at least as likely as not that the Veteran's service-connected spine disorders caused or aggravated (beyond the natural progression) any of the diagnosed disorders? All opinions must be supported with rationales/explanations. 3. Schedule the Veteran for a VA spine examination to determine the current severity of his cervical and thoracic spine disorders. All necessary tests should be completed, including any necessarily neurological testing. 4. The claims file should contain a copy of the letter notifying the Veteran and his attorney of any scheduled VA examinations, sent to his current address on file. 5. When the development requested has been completed, the case should again be reviewed by the RO based on the additional evidence. If the benefits sought are not granted, the Veteran and his attorney 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 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. 2013). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs