Citation Nr: 1520893 Decision Date: 05/15/15 Archive Date: 05/26/15 DOCKET NO. 10-47 016A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial increased rating in excess of 10 percent rating from March 13, 2009 to April 25, 2010 and a 30 percent rating from April 26, 2010 to present for migraine headaches. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a cervical spine disability. 3. Entitlement to service connection for a cervical spine disability. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a left arm disability. 5. Entitlement to service connection for a left arm disability to include as secondary to a cervical spine disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from November 1973 to November 1977 and from January 1978 to January 1980 and from April 1980 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a October 2010 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran's claim for service connection for abdominal pain claimed as peptic ulcer was granted in an October 2012 rating decision wherein the Veteran was granted service connection for GERD (also claimed as abdominal pain/peptic ulcer). This was corroborated by the Veteran's representative in his June 2014 hearing wherein the Veteran's representative expressly excluded the issue of service connection of an abdominal pain claimed as peptic ulcer as an issue on appeal. The issues of entitlement to service connection for a cervical spine disability and entitlement to service connection for a left arm disability to include as secondary to a cervical spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). The issue of Clear and Unmistakable Error in a November 1996 Rating decision has been raised by the record in a December 2009 memorandum, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The evidence of record demonstrates very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability for the entire appellate period. 2. In an unappealed November 1996 rating decision, the RO denied service connection for a cervical spine disability and a left arm disability based on the lack of evidence of a relationship between the Veteran's cervical spine disability and left arm disability and his active service. 3. The evidence added to the record since the November 1996 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for a cervical spine disability and left arm disability. CONCLUSIONS OF LAW 1. For the entirety of the period under appeal, the criteria for an evaluation of 50 percent for migraine headaches, which is the maximum scheduler evaluation, have been met; the criteria for an evaluation in excess of 50 percent for migraine headaches have not been met. 38 C.F.R. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1-4 .7, 4.124a, Diagnostic Code 8100 (2014). 2. The November 1996 rating decision which denied service connection for a cervical spine disability and left arm disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2014). 3. With respect to the Veteran's claim for service connection for a cervical spine disability and left arm disability, new and material evidence has been received since the November 1996 denial. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.158 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Duties to Assist and Notify VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, notice was provided to the Veteran in August 2010, prior to the issuance of the supplemental statement of the case in November 2013. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. VA satisfied its duty to assist the Veteran in the development of his claim and to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2014). The AOJ associated the Veteran's service treatment records, service personnel records, VA treatment records, and identified private medical records with the claims file. In February 2010 and November 2012, VA provided the Veteran with a medical examination and obtained a medical opinion addressing the current status of the Veteran's disability. The examination and opinion are adequate for the disability, discussed below, as the examination reports show that the examiners considered the relevant history of the Veteran's disability. The examiners provided a sufficiently detailed description of the disability, and the examiners provided an analysis to support his opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2014), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where the Veteran timely appeals the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate her for times since filing her claim when her disability may have been more severe than at other times during the course of her appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207 -08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. Increased Rating - Migraine Headaches The Veteran is currently service connected for 10 percent for his migraines for the period from March 13, 2009 to April 25, 2010 and 30 percent from the period from April 26, 2010 to present. The highest schedular rating for migraine headaches is 50 percent. The criteria for this rating requires Migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability The 30 percent rating criteria requires a migraine with characteristic prostrating attacks occurring on an average once a month over last several months Merits The Veteran contends he should be entitled to a rating in excess of 30 percent for his headaches for the entirety of the appeal period. The Board agrees. The Veteran's service-connected headaches are rated as analogous to migraine headaches under DC 8100. See 38 C.F.R. § 4.20. Under DC 8100, a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. In the February 2010 VA examination, the examiner's report is limited to the remark that the Veteran has difficulty functioning when he has headaches. The examiner does not address the necessary rating criteria to adequately provide a rating for the Veteran's headaches. Thus, the Board is left to turn to the more recent November 2012 VA examination report. In this examination report the VA examiner reported that the Veteran has very frequent prostrating attacks of headache pain. Pursuant to DC 8100, migraine headaches, or headaches rated by analogy under this provision, with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100. In light of this record, and giving the benefit of any doubt, the Board concludes that the severity and frequency of the Veteran's headaches more closely approximate the criteria for a 50 percent rating under DC 8100, which contemplates very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.7. In that regard, the Veteran reported having severe headaches more than once a month, which constitutes very frequent prostrating and prolonged attacks. The Board finds the Veteran's description of his symptomatology to be within the competency of a lay person. Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board also notes that 50 percent is the maximum disability rating available under DC 8100, and that no other DCs, including those related to neurological conditions, are applicable in this case. In summary, for the reasons and bases set forth above, and with application of the benefit-of-the-doubt rule, the Board concludes that a 50 percent rating, but no more, is warranted for the Veteran's headaches. See Gilbert v. Derwinski, supra. New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (whether new and material evidence has been submitted must be asked and answered by the Board de novo whenever a claim to reopen is filed). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Merits - New and Material The Veteran was denied service connection for a cervical spine disability and a left arm disability in November 1996 rating decision because there was no evidence that the Veteran's cervical spine disability and left arm disability were related to his active service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a); Shade v. Shinseki, supra. In the Veteran's testimony in June 2014, he asserted that his cervical spine and left arm disability are related to a motor vehicle accident that he was involved in while he was on active duty. He also asserts that his left arm disability has been aggravated by his cervical spine disability. Due to the prior lack of evidence showing a relationship between the cervical spine disability and left arm disability and the Veteran's active service, this new evidence is material because it relates to an element that was previously not shown, a relationship between the Veteran's active service and his current disabilities. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for a cervical spine disability and a left arm disability are reopened. 38 U.S.C.A. § 5108. ORDER New and material evidence has been submitted to reopen claims of entitlement to service connection for a cervical spine disability and a left arm disability, to include as secondary to a cervical spine disability, and these claims are reopened. A 50 percent rating for headaches is granted, subject to the regulations regarding payment of monetary benefits. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals for service connection for a cervical spine disability and a left arm disability to include as secondary to a cervical spine disability. The Veteran has not been provided an examination to address his contention that his cervical spine disability is related to motor vehicle accident which occurred in service or that a left arm disability is attributable to this same motor vehicle accident and/or that it was caused or aggravated by his cervical spine disability. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the cervical spine disability and left arm disability, the Veteran currently has a diagnosis of cervical spine disability and reported continued pain in his left arm as noted in September 2010 VA examination, which did not include an etiological opinion, and his June 2014 correspondence to the Board. The Veteran has submitted VA treatment notes that he was involved in a motor vehicle accident while on active duty in August 1985. The Veteran contends that this accident is related to both his current cervical spine disability and his left arm disability. The Board is not competent to address these contentions. Thus, the Board finds that the Veteran should be afforded a VA examination to determine if the Veteran's motor vehicle accident in service is related to his current cervical spine disability and left arm disability or whether the Veteran's cervical spine disability caused or aggravated his left arm disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination(s) with an appropriate VA examiner(s) to identify any cervical spine disability and left arm disability, and their respective etiology(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner(s) should review the service treatment records (STRs), any post-service records contained in the claims file, and take a detailed history from the Veteran regarding the onset of his cervical spine disability and left arm disability. (a) After considering the pertinent information in the record in its entirety, the VA examiner should identify any cervical spine disability present. The examiner is asked to opine as to whether it is at least as likely as not (i.e. 50 percent probability or greater), that any cervical spine disability identified, was incurred or aggravated by his active duty, or is otherwise etiologically related to the Veteran's active duty. In providing an opinion, the examiner should comment on a documented August 1988 motor vehicle accident involving the Veteran, which occurred while he was on active duty. (b) After considering the pertinent information in the record in its entirety, The examiner is asked to identify any left arm disability and opine as to whether it is at least as likely as not (i.e. 50 percent probability or greater), that the Veteran's left arm disability was incurred or aggravated by his active duty OR whether it is at least as likely as not (i.e. 50 percent probability or greater), that the Veteran's left arm disability was caused or aggravated by his cervical spine disability. In providing an opinion, the examiner should comment on a documented August 1988 motor vehicle accident involving the Veteran, which occurred while he was on active duty. For any negative opinion, the examiner must identify the medical reasons as to why the evidence does not provide sufficient proof of a relationship between the Veteran's current identified disabilities and his period of military service. If the examiner(s) determines that an opinion cannot be provided without resorting to speculation, the examiner(s) should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner(s) is undertaken so that a definite opinion can be obtained. 2. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 3. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to service connection for a cervical spine disability and entitlement to service connection for a left arm disability to include as secondary to a cervical spine disability. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs