Citation Nr: 1603979 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 09-03 659A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to service connection for a cervical spine/upper spine disability. 2. Entitlement to service connection for migraine headaches including as secondary to neck/back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from March 1998 to July 1999. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions of the Waco Regional Office (RO) of the Department of Veterans Affairs (VA), dated in July 2008 and September 2009. While the claim of secondary service connection for migraine headaches was initially characterized as one for secondary service connection based on service-connected low back strain, the Veteran clarified that he was seeking service connection for migraines to include as secondary to cervical spine injury (service connection for which is also at issue herein), and it has been characterized subsequent to the initial rating decision to reflect this distinction. In September 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. At the outset of the hearing, the undersigned noted that the Veteran's then-representative was not present and asked the Veteran if he was prepared to go forward at that time. The Veteran stated he was prepared to proceed with the hearing and waived his right to have a representative at the hearing. A transcript of the hearing has been associated with the claim file. Following the hearing, the Veteran revoked the power of attorney for his then-representative and executed a VA form 21-22, Appointment of Veterans Service Organization as Claimant Representative, in favor of DAV. This representation has been acknowledged by DAV, and the electronic Veterans Appeals Control and Locator System (VACOLS) indicates this file was sent to their office for review in December 2015. It has been returned to the Board for appellate review. The Veteran's record before the VA consists of an electronic record located in Veterans Benefits Management System (VBMS)/Virtual VA. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Additional action is warranted in order to fulfill VA's duty to assist set forth at 38 C.F.R. § 3.159 (2015) before a decision can be made as to the claims for service connection for cervical spine disability and migraine headaches, to include as secondary to neck/back disability. VA treatment records dated in 2015 reflect current findings of headaches and neck pain. At his hearing before the undersigned, the Veteran, urged that he injured his neck in a fall in the Navy. He reported further that he has had migraine headaches and neck pain since that fall. The Veteran explained that he was ordered by a petty officer to carry two cases of cokes up a ladder onboard ship. He was not supposed to carry anything heavy at that time because he was still having some vertigo due to an ear surgery. He fell backwards onto his back and neck and this, he believes, is the origins of current migraines and cervical spine/upper back injury. The Veteran explained to the undersigned that he inadvertently told a VA examiner in 2008 that the injury happened 5 years earlier but he intended to say it happened in service. He also testified that he had collected some medical records to support his claim, but that his car had been broken into the night before the hearing and the papers were stolen. He was going to try to replicate these records and submit them within 60 days. No such records have been received. The record contains a report of February 2008 VA examination with an opinion that the Veteran's migraine headaches are not as likely as not due to his low back strain or aggravated secondary to his low back strain. The report reflects that no claims file was reviewed and the misinformation regarding the fall being 5 years earlier as discussed above is noted. There is no assessment as to the cervical spine. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under the circumstances discussed above, the Board determines that the February 2008 examination is inadequate. Additionally, as the Veteran has testified to having additional potentially relevant medical evidence to submit, the RO should assist him in obtaining those records accordingly. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Provide the Veteran with release forms and, if they are executed and returned, attempt to obtain records from non-VA sources identified by the Veteran. 3. Then, schedule the Veteran for VA examination by an examiner with sufficient expertise to determine the etiology of all cervical spine/upper spine disorders and migraine headaches present during the period of the claim. Evidence in VBMS/Virtual VA must be made available to and reviewed by the examiner. Any indicated studies should be performed. For purposes of this examination, the Veteran is presumed to be a reliable historian. The examiner should be requested to respond in the affirmative or the negative to the following questions: With respect to each cervical spine/upper spine disability found to be present during the pendency of the claim, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or better probability) that the disorder is etiologically related to the Veteran's active service. With respect to any migraine headaches or other headache disorder found to be present during the pendency of the claim, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or better probability) that the disorder is etiologically related to the Veteran's active service or is otherwise etiologically related to service, and should address whether any such headaches are proximately due to or aggravated by disability of the low back or cervical spine. The examiner should set forth a complete rationale for all opinions expressed and conclusions reached. If the examiner is unable to offer any of the requested opinions, it is essential that he offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. The AOJ will then review the Veteran's claims VBMS/Virtual VA file and ensure that the foregoing development actions have been completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further adjudication. 5. After completing the requested actions, the AOJ should readjudicate the claims in light of all pertinent evidence. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a supplemental statement of the case, with appropriate time allowed for response. The Board intimates no opinion as to the outcome in this case by the action taken herein. 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). _________________________________________________ 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) (2015).