Citation Nr: 1603473 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 08-33 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a migraine headache disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from June 1976 to June 1980. He also served with the United States Naval Reserve from July 1986 to October 2002, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA), and one month of activated service in September 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the regional office (RO) of the Department of Veterans Affairs (VA). The appeal is under the jurisdiction of the RO in St. Petersburg, Florida. In June 2010, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is of record. That Veterans Law Judge has since retired from the Board, and the Veteran has expressed that he does not wish to have another hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While this case has twice been before the Board, it must unfortunately be remanded a third time as its earlier mandates have not been complied with in their entirety. Specifically, the Board, in its March 2011 remand order, asked that the Veteran be afforded a comprehensive examination to address the etiology of current low back and migraine headache disabilities. While the Board in its more recent remand, dated in December 2014, focused on the need to verify ACDUTRA and INACDUTRA periods, the mandates of the earlier remand still set forth upon the Veteran an entitlement that such directives be substantially adhered to by the RO. It does appear that the entirety of the Veteran's active duty and reserve component service have been verified; however, the Veteran has not, as directed by the Board in March 2011, been afforded an adequate VA examination addressing the etiology of his migraines and low back disorder. Specifically, while a VA examination was afforded in June 2011, it did not adequately address the Veteran's contentions. Indeed, with respect to the migraine headaches, the examiner opined, without provided any reasoning, that migraine headaches pre-dated service and that as due to a lack of documentation in the service treatment records, they could not be related to active service. Further, the examiner did note that the Veteran did have documentation of ongoing migraines while in ACDUTRA/INACDUTRA, but as they were not documented during active duty, he dismissed the findings without further explanation. It is also noted that with respect to the low back, the VA examiner stated that in-service low back pain, documented in 1977 and 1978, was self-limiting and acute in nature. No explanation was offered as to why this was the case. That the Veteran was referred to a medical review board during an INACDUTRA period, at which time it was noted that he had several months of medication to treat mechanical low back pain, was casually mentioned; however, when offering an opinion with respect to etiology, the examiner simply stated that he could not offer an explanation without resort to speculation. The mere fact that symptoms are not noted in service is not, in itself, a sufficient basis on which to rest a medical opinion. Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, a conclusory/speculative opinion, without a discussion as to why such an opinion was offered (i.e. due to limitation in general medical knowledge or because of a lack of expertise on the part of the examiner), is also not sufficient to address a contended nexus to service. As this is the case, the Board must conclude that the 2011 opinion is not adequate to resolve the issue on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As Veterans, as a matter of law, are entitled to compliance with Board directives, and as such directives in the context of medical examinations mandate that such examinations be adequate, the claim must be remanded for new, comprehensive orthopedic and neurological examinations. Stegall v. West, 11 Vet. App. 268 (1998). It is noted that the 2011 examination was offered by a nurse practitioner (NP). While no doubt a qualified healthcare professional, it is asked that the new examinations be offered by physicians (Doctor of Medicine or Doctor of Osteopathic Medicine) with expertise in treating degenerative joint disease/lumbar strain and migraine headache disabilities. Lastly, it is noted that the examiners, upon remand, must consider the nature and circumstances of the Veteran's service, both on active duty and during ACDUTRA/INACDUTRA periods, when coming to a conclusion with respect to etiology of the claimed conditions. In this regard, the Veteran has reported that he was struck in the face while serving aboard USS Cleveland by two sailors. A personal assault does not appear in the service treatment or personnel records; however, such events are not, usually, the kind that are always reported. The Veteran's testimony of being struck in the face is credible, as he has made many attempts, without success, to obtain records of non-judicial punishment for the sailors responsible for hitting him. At any rate, it is asked that the neurological examiner consider as to if the head blow in service is consistent with later-developed migraines (which persisted at a manageable level during subsequent reserve service). Further, the Veteran has had several rates both during his active and reserve time, and has stated that he has repeatedly had to carry heavy loads. He dates the earliest episodes of lifting to active duty, but has also mentioned specific incidents of lift injury occurring during ACDUTRA/INACDUTRA periods. The examiner should review these incidents, and when examining the Veteran, consider as to if any current low back arthritis was caused by traumatic injury dating back to heavy lifting in active duty (exacerbated by lifting during reserve drills). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for comprehensive VA neurological and orthopedic examinations with appropriate physicians to address the following: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's migraine headache disability, which was not noted prior to service entry, first became manifest during active duty in the US Navy. Specifically, the examiner is to note that the Veteran took medication for migraines during reserve service (subsequent to active duty), and an opinion should be made as to if trauma to the head experienced during a personal assault in the active duty period caused the onset of these headaches. b) Is it at least as likely as not (50 percent probability or greater) that the Veteran's low back disability, to include any arthritis in the lumbar spine, had causal origins with any lift injuries experienced during active service and subsequent ACDUTRA/INACDUTRA periods. The Veteran's service history is to be reviewed, and his duties aboard ship, which by necessity would have included heavy lifting of stores and other types of equipment, must be expressly considered. Each opinion must contain a full rationale explaining the conclusion based on the medical principles involved. 2. Following the above-directed development, re-adjudicate the Veteran's claims. Should the claims remain denied, issue an appropriate supplemental statement of the case and forward the claims to the Board for adjudication. 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 2014). _________________________________________________ MATTHEW D. TENNER 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) (2015).