Citation Nr: 1603845 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 11-29 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine. 2. Entitlement to a separate disability rating for headaches associated with degenerative disc disease of the cervical spine. 3. Entitlement to an initial evaluation in excess of 20 percent for cervical radiculopathy of the upper right extremity. 4. Entitlement to an initial evaluation in excess of 20 percent for cervical radiculopathy of the upper left extremity. 5. Entitlement to an evaluation in excess of 10 percent for left (dominant) subacromion degenerative joint disease, prior to January 23, 2009. 6. Entitlement to an evaluation in excess of 20 percent for left (dominant) subacromion degenerative joint disease, since January 23, 2009. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2004 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011, June 2011, September 2011, April 2014, and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In its September 2011 rating decision, the RO granted service connection for radiculopathy of the upper left and right extremities associated with the Veteran's service-connected cervical spine degenerative disc disease. Thereafter, the Veteran's cervical radiculopathy of the right upper extremity was assigned a 20 percent disability rating, effective August 26, 2011. Her cervical radiculopathy of the left upper extremity was assigned a 20 percent disability rating, effective September 19, 2011. Under the diagnostic criteria for spine disabilities, associated neurologic abnormalities are to be rated separately under the appropriate diagnostic code. See 38 C.F.R. 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), Note (1) (2015). As the Veteran's cervical radiculopathy of the upper right and left extremities is part and parcel with her main cervical spine disorder, the Board finds it necessary to consider whether she is entitled to higher initial disability evaluations for these neurologic abnormalities. Consequently, these issues have been listed on the title page of this decision and will be addressed in the Remand section below. The issues of entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine; entitlement to a separate disability rating for headaches associated with degenerative disc disease of the cervical spine; entitlement to an evaluation in excess of 10 percent for left (dominant) subacromion degenerative joint disease, prior to January 23, 2009; and entitlement to an evaluation in excess of 20 percent for left (dominant) subacromion degenerative joint disease, since January 23, 2009, are also addressed in the Remand portion of the decision below. FINDING OF FACT Prior to the promulgation of a decision in this appeal, the Veteran requested a withdrawal of her claim seeking entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. CONCLUSION OF LAW The criteria for withdrawal of the Veteran's appeal concerning the issue of entitlement to TDIU due to service-connected disabilities have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In an August 2015 statement, the Veteran indicated that she understood the RO's denial of her TDIU claim and requested that VA "go ahead and make a determination on her appeal as soon as possible concerning the Entitlement to a separate rating for her headaches, the evaluations for the mild, left dominant sub acromion degenerative joint disease." In an October 2015 informal hearing presentation, the Veteran representative verified that the Veteran "apparently withdrew her claim of entitlement to TDIU" in the August 2015 correspondence because, as of April 2015, she was still employed. Therefore, as it pertains to the issue of entitlement to TDIU due to service-connected disabilities, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it must be dismissed. ORDER The issue of entitlement to TDIU due to service-connected disabilities is dismissed. REMAND Review of the electronic claims file reveals that VA has a further duty to assist the Veteran in developing evidence pertinent to her remaining claims on appeal. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). A. Supplemental Medical Opinion In its March 2014 decision, the Board remanded the issue of entitlement to a separate disability rating for headaches associated with degenerative disc disease of the cervical spine. In its remand directives, the Board instructed the RO to schedule the Veteran for an appropriate examination to determine whether the Veteran's claimed headache condition was caused or aggravated by her service-connected degenerative disc disease of the cervical spine. In July 2015, the Veteran was afforded a VA headaches examination. In the corresponding examination report, the VA examiner noted the Veteran's assertion that her migraine headaches began in 2010 and were "secondary to her service-connected degenerative disc disease of the cervical spine." The examiner described the Veteran's headaches as constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsens with physical activity. The examiner noted that this pain usually presented on both sides of the Veteran's head and usually lasted less than one day. The examiner also noted that the Veteran's headaches caused nausea, sensitivity to light, and changes in vision. The examiner diagnosed the Veteran as having migraine headaches, including migraine variants, since 2010. The examiner then described the headaches as "characteristic prostrating attacks of migraine headache pain" which occurred once every month over the last several months. The examiner indicated that the Veteran's migraine headaches did not impact her ability to work and were not productive of serve economic inadaptability. Thereafter, the examiner opined that the Veteran's migraine headaches are "less likely than not" proximately due to or the result of the Veteran's service-connected condition. The examiner also stated, "Current medical literature does not support Migraine headaches caused by degenerative disc disease of the cervical spine." However, the examiner did not provide any further explanation or rationale in support of this conclusion. Likewise, the examiner did not address whether the Veteran's migraine headaches are aggravated by her service-connected degenerative disc disease of the cervical spine. The Board finds it necessary to obtain a supplemental medical opinion from the same examiner who conducted the July 2015 VA examination. After reviewing the evidence of record, including the Veteran's statements, the examiner must provide additional rationale in support of the opinion that migraine headaches are "less likely than not" proximately due to or the result of the Veteran's service-connected condition. The examiner must keep in mind that the absence of evidence is not negative evidence, and the Veteran's lay reports of persistent and recurrent symptoms must also be considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, the examiner must provide an opinion addressing whether the Veteran's migraine headaches are aggravated by her service-connected degenerative disc disease of the cervical spine. Lastly, the examiner must reconcile the causation/aggravation opinions with the private medical evidence of record from August 2011 which showed an assessment of "cervicogenic headaches." B. Extraschedular Consideration In a March 2014 decision, the Board increased the disability rating assigned to the Veteran's service-connected cervical spine degenerative disc disease from 10 to 20 percent; however, the Board denied entitlement a disability rating in excess of 20 percent. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In November 2014, the Court issued an Order granting the parties' Joint Motion for Partial Remand (Joint Motion) and instructed the Board to reevaluate whether referral for an extraschedular evaluation of the Veteran's service-connected cervical spine degenerative disc disease was warranted. In the November 2014 Joint Motion, the parties recognized that the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision, in which it rejected VA's interpretation that 38 C.F.R. 3.321(b)(1) only contemplates that referral for extraschedular consideration be made on an individual basis for each service-connected disability to determine if the disability picture rendered the schedular evaluation inadequate, and not on a collective basis. See Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed. Cir. 2014); see also 38 C.F.R. 3.321(b)(1) (2015). In that case, the Federal Circuit determined that extraschedular consideration required consideration of the "collective impact" of the Veteran's service-connected disabilities in assessing the disability picture and whether it rendered the schedular criteria inadequate such that referral to the Director of the VA Compensation and Pension Service for extraschedular consideration is warranted. The Board finds that the issues of (1) entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine; (2) entitlement to an initial evaluation in excess of 20 percent for cervical radiculopathy of the upper right extremity; (3) entitlement to an initial evaluation in excess of 20 percent for cervical radiculopathy of the upper left extremity; (4) entitlement to an evaluation in excess of 10 percent for left (dominant) subacromion degenerative joint disease, prior to January 23, 2009; and (5) entitlement to an evaluation in excess of 20 percent for left (dominant) subacromion degenerative joint disease, since January 23, 2009, are inextricably intertwined with the Veteran's claim seeking entitlement to a separate disability rating for headaches associated with degenerative disc disease of the cervical spine. Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that, where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Any development concerning entitlement to a separate disability rating for headaches associated with degenerative disc disease of the cervical spine could potentially be relevant in the application of Johnson to the other issues on appeal. Id. In light of the concerns expressed in the Joint Motion, coupled with the holding in Johnson, and the collective impact of the Veteran's numerous service-connected disabilities, the Board finds that the RO must obtain the supplemental medical opinion discussed in the previous section. Thereafter, the RO must readjudicate the issues on appeal. In doing so, the RO must consider whether to refer any of the Veteran's claims for an increased evaluation for consideration of a combined extraschedular rating, as evidence of record has referenced interplay between her service-connected degenerative disc disease, her service-connected radiculopathy of the left and right upper extremities, her service-connected left (dominant) subacromion degenerative joint disease, and potentially her migraine headaches. See Johnson, 762 F.3d at 1366 (38 C.F.R. § 3.321(b)(1) entitles a veteran to consideration for referral for extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations.). Accordingly, the case is remanded for the following actions: 1. The RO must obtain a supplemental medical opinion from the VA examiner who conducted the July 2015 VA examination of the Veteran's migraine headaches. If the July 2015 VA examiner is not available, the supplemental medical opinion may be provided by another examiner, with an examination of the Veteran performed only if deemed necessary by the examiner providing the opinion. The evidence of record, in the form of electronic records, must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Based on a comprehensive review of the evidence of record, and with consideration of the Veteran's lay statements, the examiner must provide additional rationale in support of the July 2015 medical opinion that migraine headaches are "less likely than not" proximately due to or the result of the Veteran's service-connected condition. The examiner must keep in mind that the absence of evidence is not negative evidence, and the Veteran's lay reports of persistent and recurrent symptoms must also be considered. Thereafter, the examiner must provide an opinion addressing whether the Veteran's migraine headaches are aggravated by her service-connected degenerative disc disease of the cervical spine. Lastly, the examiner must reconcile the causation/aggravation opinions with the private medical evidence of record from August 2011 which showed an assessment of "cervicogenic headaches." The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. If a new examination is deemed necessary, the RO must notify the Veteran that it is her responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the Veteran's electronic claims file showing that notice scheduling the examination was sent to her last known address. Documentation must also be obtained and associated with the Veteran's electronic claims file demonstrating any notice that was sent was returned as undeliverable. 3. The supplemental medical opinion must be reviewed to ensure complete compliance with the directives of this remand. If any report is deficient in any manner, the RO must implement corrective procedures. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, all issues on appeal must be readjudicated. In doing so, the RO must specifically consider whether to refer the Veteran's electronic claims file to the Director, Compensation and Pension Service, for extraschedular consideration, to include whether a combined extraschedular rating is warranted under 38 C.F.R. § 3.321(b) in light of the Federal Circuit's decision in Johnson. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs