Citation Nr: 1606225 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 09-43 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a pulmonary disability, to include bronchitis, to include as secondary to service-connected history of cryptococcal pneumonia. 3. Entitlement to a compensable evaluation for a history of cryptococcal pneumonia, resolved without recurrences, and scarring shown on chest x-ray. 4. Entitlement to a disability rating in excess of 10 percent for a painful scar, status post cervical mediastinal exploration with lymph node biopsy, effective January 1, 2014. 5. Whether the reduction of the 10 percent rating for status-post cervical mediastinal exploration with lymph node biopsy and insertion of surgical clips (claimed as throat scar) to 0 percent disabling, effective January 1, 2014, was proper. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H.W. Walker, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1978 to June 1984. This case comes before the Board of Veterans' Appeals (the Board) on appeal from January 2008 and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In May 2013, the Veteran presented testimony in a Central Office hearing before the undersigned. A copy of the transcript has been associated with the claims folder. This appeal was processed using the Veterans Benefits Management System (VBMS). This case was remanded in August 2014 for additional development and has since been returned to the Board for adjudication. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that a remand is necessary regarding the Veteran's service connection claims for headaches and lung disability, as well as her increased rating claims for cryptococcal pneumonia and the ratings for scar, status-post cervical mediastinal exploration with lymph node biopsy. Headaches and Lungs The first three issues noted on the cover page of this decision were remanded by the Board in August 2014 for additional development. Although attempts were made to obtain the requested VA opinions, the Board finds that they are inadequate for purposes of determining whether the Veteran is entitled to service connection for headaches and lung disability and an increased rating for her history of cryptococcal pneumonia. Importantly, it appears that the September 2014 VA examiner did not review the Veteran's entire claims file in conjunction with headaches examination. The examiner noted that there were multiple sets of documents that were "pending scanning" in VBMS, and she is unable to give an opinion without resort to speculation. In a February 2015 addendum, there is a notation that the Veteran has not been afforded a specific headaches examination by a neurologist or primary care provider, and he determined "it was not possible to diagnose her with a specific headache condition, without further evaluations." Also, the September 2014 VA examination reports related to the lung disability did not address whether the Veteran has had a lung disability at any time during the appeal period, or whether any lung disability was caused or aggravated by her service-connected cryptococcal pneumonia. Additionally, the examiner did not address the current severity of any residuals of cryptococcal pneumonia. As such, the Board finds that these VA examinations are inadequate and the claims must be remanded to afford the Veteran appropriate examinations to determine the nature and etiology of any lung and/or headache disability present at any time during the appeal period, including consideration of secondary service connection, as well as the current severity of her cryptococcal pneumonia. Manlincon Issues In a September 2014 rating decision, the RO granted a 10 percent rating for painful scar, status post cervical mediastinal exploration with lymph node biopsy, effective January 1, 2014. In that same rating decision, the RO also decreased the 10 percent rating for status post cervical mediastinal exploration with lymph node biopsy and insertion of surgical clips (claimed as throat scar) to 0 percent disabling, effective January 1, 2014. It appears that the RO was switching the Diagnostic Code under which the Veteran's throat scar is rated. In a statement received by the Veteran in April 2015, she expressed disagreement as to these ratings assigned. To date, however, the AOJ has not issued the Veteran a Statement of the Case (SOC) with respect to these claims. Because the notice of disagreement placed the issues in appellate status, the matter must be remanded for the originating agency to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case on the issues of entitlement to a disability rating in excess of 10 percent for painful scar, status post cervical mediastinal exploration with lymph node biopsy, and whether the reduction from 10 percent to 0 percent for status-post cervical mediastinal exploration with lymph node biopsy and insertion of surgical clips was proper, should be issued to the Veteran and her representative. The Veteran should be informed of the requirements to perfect an appeal with respect to the new issue. If the Veteran perfects an appeal with respect to this, the AOJ should ensure that all indicated development is completed before the case is returned to the Board. 2. Schedule the Veteran for an appropriate VA medical examination to determine the nature and etiology of her claimed headache disorder. The Veteran's electronic claims file must be provided to the examiner and reviewed in conjunction with the examination. The examiner is asked to perform any testing deemed necessary to determine the nature of any current headache disorder. Following review of the Veteran's claims file and physical examination, the examiner is asked to provide the following opinions: a) Is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has a headache disorder that has been caused by any disease or injury in service? The examiner is asked to specifically address the notations of headache complaints in service, and the Veteran's contention of having had headaches ever since service/following a spinal tap. b) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has a headache disorder that has been caused or aggravated (chronically worsened) by her service-connected cryptococcal pneumonia? The examiner must provide a complete rationale for all opinions provided. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Schedule the Veteran for an appropriate VA pulmonary examination to determine the nature and etiology of her claimed lung disorder, and to determine the current severity of her residuals of cryptococcal pneumonia. The Veteran's electronic claims file must be provided to the examiner and reviewed in conjunction with the examination. Following review of the Veteran's claims file, and completing the requested testing and examination, the examiner is asked to provide the following opinions: a) Is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has had a current lung disorder at any time during the appeal period that has been caused by any disease or injury in service? b) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has a lung disorder that has been caused or aggravated (chronically worsened) by her service-connected cryptococcal pneumonia? In regard to the service-connected history of cryptococcal pneumonia, resolved without recurrences, and scarring shown on chest x-ray, complete spirometric testing (PFT) should be accomplished. The examiner should identify all current disabilities of the lungs, and should state whether any current functional impairment is attributable to the service-connected history of cryptococcal pneumonia, resolved without recurrences, and scarring shown on chest x-ray. The examiner should opine as to whether the service-connected disability is more analogous to a restrictive lung disease or an interstitial lung disease. The examiner must provide a complete rationale for all opinions provided. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. 4. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted. If the claim remains denied, the Veteran and her representative should be furnished with an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran 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). _________________________________________________ A. C. MACKENZIE Acting 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).