Citation Nr: 1450772 Decision Date: 11/17/14 Archive Date: 11/26/14 DOCKET NO. 12-13 272 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to a lumbar spine disability. 3. Entitlement to a higher initial disability rating for headaches, currently evaluated as 50 percent disabling-to include whether the claim should be referred to the Director, Compensation and Pension Service. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). (The issue of entitlement to reimbursement for unauthorized medical expenses will be the subject of a separate decision of the Board; the issue, currently pending at the RO, has been docketed separately and is independent of this decision). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to April 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from decisions of the RO in June 2009 and in February 2010 that, in pertinent part, denied service connection for a lumbar spine disability and for a cervical spine disability; and granted service connection for headaches evaluated as 50 percent disabling effective January 13, 2009, and denied entitlement to a TDIU. The Veteran timely appealed. The Board notes that, while the Veteran did not include the claim of a higher initial disability rating for headaches on the timely filed VA Form 9 in May 2012, subsequently the RO issued a supplemental statement of the case in March 2013 that included the claim; and the Veteran's representative also listed the claim on appeal in the filed Form 646 in April 2013, which is accepted in lieu of a VA Form 9. Hence, the Board accepts the appealed issue and has jurisdiction over it. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that the absence of a Form 9 is not a jurisdictional bar to the Board's appellate review). In June 2013, the Veteran testified during a hearing before the undersigned at the RO. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his electronic claims file. The issues of service connection for diplopia and the issue of entitlement to special monthly compensation ( SMC ), based on the need for the regular aid and attendance of another person (A&A), have been raised by the record (January 2011 and June 2014 correspondence, respectively), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran and his representative when further action is required. REMAND Records The Veteran reported receiving treatment for headaches in February 2014 at the Sky Lakes Medical Center, and has submitted an authorization for release of these records. In addition, recent VA treatment records should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Lumbar Spine Disability The Veteran contends that his lumbar spine disability had its onset in active service, or is the result of aggravation of a pre-existing disease or disability in active service. The Veteran's enlistment examination in December 1973 revealed no defects or disorders. On a "Report of Medical History" completed by the Veteran at that time, he checked "no" in response to whether he ever had or now had recurrent back pain. Clinical evaluation of the Veteran's spine was normal at entry. Subsequent service treatment records show that the Veteran complained of back pain the next month in January 1974; and that he also reported a history of back problems of five years' duration. Range of motion of the lumbar spine was within normal limits. The assessment was back strain. Back exercises were recommended. He again complained of a painful back later in January 1974; and reported having the same trouble when ages 12 and 15, and a chiropractor popped three vertebrae back into place. Examination revealed pain in the lumbar region, and crepitus felt over the lower lumbar region. The assessment was low back pain. Records show that the Veteran was referred for further evaluation due to recurrent low back pain. X-rays taken of the lumbar spine in March 1974 revealed no significant abnormalities. Chronic strain was noted. No separation examination is of record. Post-service records first show treatment for low back pain nearly two decades later in April 1993. At that time the Veteran reported that he suffered a ruptured disc from an injury at work, and he underwent a L4-L5 discectomy on the left side in October 1993. Records dated in November 1997 show that the Veteran had been working 17 hours a day on a ranch at the time of his injury. X-rays taken in March 2002 revealed mild degenerative disc changes in the lower lumbar spine with small anterior spurs. Records dated in April 2010 reflect that the Veteran had problems with his back for many years after an on-the-job injury, which led to surgery; and that he had been on Social Security disability since then, with persistent back pain. In September 2010, the Veteran underwent re-exploration and discectomy with decompression and arthrodesis at L4-L5, due to recurrent herniated nucleus pulposus at L4-L5 with severe disk derangement at L4-L5. In June 2013, the Veteran testified that he "had no means" to seek medical treatment for low back pain when he was discharged from active service; and that he treated his low back pain with over-the-counter medications. The Veteran also testified that he did not fall from a horse, as mistakenly reported in his medical records; and he described the injury at work as occurring in June 1992 when a horse pulled a board off the fence, which hit the Veteran across the back and led to his surgery in 1993. Under these circumstances, the Board finds that an informed medical opinion is necessary to determine whether a lumbar spine disability had its onset in active service; or whether the medical evidence of record is obvious and manifest that a current lumbar spine disability both pre-existed active service and was not permanently worsened in active service (beyond the natural progress of the disability). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2014). Cervical Spine Disability The Veteran contends that service connection for a cervical spine disability is warranted on the basis that he was treated for neck pain in active service; and has asserted that the cervical spine disability is secondary to his lumbar spine disability. Service treatment records show a subjective history of "shooting pains down both arms" with quick turning of head in December 1973. X-rays taken of the cervical spine at the time revealed no significant abnormalities. Post-service records include X-rays taken three decades later in January 2004 that revealed mild cervical muscle spasm. MRI scans conducted of the cervical spine were normal in September 2004, and revealed minor neural foraminal stenosis on the left at C6-C7 in March 2005. X-rays taken in February 2009 showed findings of minimal focal degenerative disc disease at C3-C4 and at C5-C6. In April 2009, the Veteran reported that he had a lump in his left neck for at least the past ten years, which had not changed much; and that the lump was sore when touched, and tended to wax and wane in tenderness. The assessment then was left-sided neck pain. MRI scans conducted in April 2010 revealed multiple areas of disk space narrowing, neural foraminal narrowing, and disk bulging from C3 to C7 and also at T2-T3; and mild curvature to the right in the mid-to-lower cervical spine. In June 2013, the Veteran testified that he wore a hardhat, or a hard helmet, in active service that was so heavy and kept bouncing, which caused headaches and bothered his neck. He testified that the pain would "just run right down this whole side," and that was the start of his neck problems. The Veteran also testified that he did not have a motor vehicle accident in 1987, as mistakenly noted in August 2006 treatment records. Again, he testified that he treated his neck pain with over-the-counter medications. The Veteran's testimony regarding neck pains during active service is considered both competent and credible. He is also competent to describe his current symptoms. This is sufficient to trigger the duty to assist in obtaining a medical examination and opinion as to the etiology of any cervical spine disability. Moreover, VA should seek a medical opinion regarding whether any identified cervical spine disability is due to or aggravated by the lumbar spine disability or by the service-connected headaches. Hence, the Board cannot resolve this matter without further medical clarification. Headaches The Veteran was last afforded a VA examination to evaluate the severity of his service-connected headaches in February 2010. At that time the Veteran reported a severe prostrating headache every week or two, which had remained unchanged for many years. Since then, the Veteran described a worsening of the disability. Records show that the Veteran presented to the Emergency Room in October 2010, due to a persistent, severe headache in the middle of the night. In November 2010, the Veteran's treating physician referred the Veteran to a neurologist for complaints of severe headaches and very unusual MRI findings with multiple frontal lobe lesions. The physician described the headaches as incapacitating, and as pre-dating the Veteran's lumbar surgeries. In March 2012, a Doctor of Optometry also noted that the Veteran's headaches were quite debilitating. In June 2013, the Veteran testified that he had migraine headaches about two times each week, and that he took medication for treatment. The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Here, the Veteran is currently receiving the maximum, 50 percent disability rating for headaches under the schedular rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. During the June 2013 hearing, the Veteran's representative argued that an extraschedular evaluation should be considered under 38 C.F.R. § 3.321(b). Under these circumstances, VA cannot rate the service-connected headaches without further medical clarification; hence, the Veteran is entitled to a new VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Specifically, the AMC must consider whether referral for an extraschedular evaluation for headaches is appropriate. TDIU Service connection is currently in effect for headaches, rated as 50 percent disabling; and for left occipital scar from lipoma excision, rated as 10 percent disabling. The combined disability rating, effective January 13, 2009, is 60 percent. The Veteran's service-connected disabilities should be considered as one disability and, thus, satisfy the schedular eligibility criteria for a TDIU. See 38 C.F.R. § 4.16(a). The report of an April 2009 VA examination reflects that the Veteran had not worked since June 1992, when he sustained a back injury. The report of an October 2009 VA examination reflects that the area of scalp anterior to the cyst removal location had also been an aggravating point for causation of headaches. The Veteran filed a claim for a TDIU on November 5, 2009. In a January 2010 addendum, the October 2009 VA examiner opined that there were no apparent symptoms relating to the scar itself, and certainly this would not impair the Veteran's employment in any way. A medical evaluation prepared for the Social Security Administration in January 2010 reflects that the Veteran had intractable back pain and leg pain from recurrent disk herniation; and chronic arthritis in the back, causing constant pain that was severe and debilitating. Findings reflect that the Veteran was unable to stand or sit for more than ten minutes at a time, and he was not able to lift at all. He was able to do basic activities of daily living and self-care, but required rest and position changes. In a February 2010 addendum, the April 2009 VA examiner opined that, while the Veteran had one of these headaches, he would not be able to perform any occupation. However, the April 2009 VA examiner suggested that, in between the headaches, the Veteran would be capable of performing some type of occupation-whether it be sedentary or active. A Veteran's education and work experience are relevant to the issue of entitlement to a TDIU. Here, the Veteran last worked on a farm from March 1990 to June 1992; and he had prior work experience in engine dismantling and bartending. He completed two years of college, and did not report any additional training or skills. In this case, there is no opinion of record regarding the Veteran's functional impairment due to his service-connected disabilities with regard to employment. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary contact information and authorization from the Veteran-should the February 2014 authorization be outdated, please request treatment records that pertain to headaches from the Sky Lakes Medical Center, dated from February 2014; and associate them with the Veteran's claims file (physical or electronic). If, after making reasonable efforts to obtain records identified by the Veteran; and if the AMC is unable to secure such records, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claims; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain the Veteran's outstanding VA treatment records pertaining to a lumbar spine disability, a cervical spine disability, and headaches-dated from July 2013; and associate them with the Veteran's claims file (physical or electronic). 3. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of low back pain, and the likely etiology of the disease or injury. The examiner is requested to determine: (a) Whether the medical evidence of record is obvious and manifest (clear and unmistakable) that a lumbar spine disability pre-existed active service; (b) If so, whether the medical evidence of record is obvious and manifest (clear and unmistakable) that any preexisting lumbar spine disability was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (c) If the medical evidence of record is not obvious and manifest (clear and unmistakable) that any lumbar spine disability preexisted service and was not aggravated by service, whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed lumbar spine disability either had its onset during a period of active service, or is the result of disease or injury incurred during active service-specifically, to include complaints of recurrent back pain as noted in service treatment records, and the Veteran's claim of continuing low back pain since then. The Veteran's claims file, to include a complete copy of this REMAND, must be available to the examiner designated to examine the Veteran, and the examination report should note review of the file. 4. Afford the Veteran a VA examination to identify all current disability underlying the Veteran's current complaints of neck pain. Upon examination of the Veteran and review of the claims file, the examiner is asked to render opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's current cervical spine disability is medically related to his active service-specifically, to include the in-service treatment for neck pain described as "shooting pains down both arms" with quick turning of head in December 1973, and the Veteran's credible complaints of neck problems then, and since then; (b) Whether it is at least as likely as not (50 percent probability or more) that any service-connected disability caused or aggravated (i.e., increased the severity of) the Veteran's cervical spine disability beyond the natural progress. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's cervical spine disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to a service-connected disability. The Veteran's claims file, to include a complete copy of this REMAND, must be available to the examiner designated to examine the Veteran, and the examination report should note review of the file. 5. Afford the Veteran a VA examination, for evaluation of the service-connected headaches. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the report of the examination should note review of the file. The examiner should comment on the frequency and duration of prostrating migraines, and comment on their economic impact. A complete rationale for the opinion expressed must be provided. These specific findings are needed to rate the Veteran's disability in accordance with the rating schedule. It is therefore important that the examiner furnish the requested information. 6. Schedule the Veteran for an examination with an appropriate medical professional who is qualified to offer an opinion regarding the functional impairment of the Veteran's service-connected disabilities with regard to his employment. The Veteran's claims file, to include a complete copy of this REMAND, must be available to the examiner designated to examine the Veteran, and the examination report should note review of the file. In proffering an opinion, the examiner should address the Veteran's functional limitations due to his service-connected disabilities, jointly-(i.e., headaches and left occipital scar from lipoma excision), as they may relate to his ability to function in a work setting and to perform work tasks. The examiner must specifically take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. The examiner should set forth a rationale for the conclusions reached. 7. After ensuring that the requested actions are completed, the AMC should re-adjudicate the claims on appeal. The claim for a higher initial rating for headaches should take into consideration provisions of 38 C.F.R. § 3.321(b). If the benefits sought are not fully granted, the AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2014). The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).