Citation Nr: 1629938 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 13-21 908A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a headache disability, to include migraine and tension headaches. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for sleep apnea. 4. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. 5. Entitlement to an increased rating greater than 30 percent for dysthymic disorder and chronic pain disorder. 6. Entitlement to an increased rating greater than 40 percent for posttraumatic osteoarthritis and impingement syndrome, residuals of left shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from February 1982 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2010, March 2011, and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, as well as a July 2013 rating decision of the Columbia, South Carolina RO. The Columbia, South Carolina RO currently has jurisdiction of the claims on appeal. Subsequent to the last adjudication by the agency of original jurisdiction (AOJ), the Veteran's representative submitted a 2011 article from the American Headache Society. However, in April 2016 the Veteran submitted a waiver of initial RO consideration of that evidence. Cf. 38 C.F.R. § 20.1304 (2015). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and Veteran's Benefits Management System (VBMS) systems to ensure review of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board concludes that additional development is necessary with respect to each of the Veteran's claims on appeal. Headache Disability The Veteran contends that he has a headache disability (characterized as migraine and/or tension headaches) that began during active service. The Veteran was afforded a VA examination for his claimed headache disabilities in April 2013. The Veteran reported that he had headaches starting in 2005 that caused constant and unbearable pain, but that he had been experiencing headaches of a lesser degree since service. The examiner concluded that the chronic headaches were less likely than not related to headache complaints in service. The rationale was that the frequency and intensity of the headaches had increased since service, as the ones in service were less frequent and intense. The examiner indicated that the in-service headaches were more of the common headache type that the general population encountered. In an April 2016 statement, however, the Veteran's representative cited to a 2011 article from the American Headache Society by Phillip Bain, MD and Frederick R. Taylor, MD titled "Headache Progression - What You MUST Know About the Development of Chronic Headache". The representative indicated that the article concluded that headaches would begin as occasional and over time progress in frequency and severity and that headache progression was identifiable when acute medications failed to work as well and headache frequency and related debility increased. Moreover, the Board notes that medical evidence of record suggests that the Veteran's current chronic headaches might be caused or aggravated by his service-connected dysthymic disorder and chronic pain disorder. Specifically, a May 2003 VA mental health contract examination report stated that the Veteran "sometimes feels so angry at himself and others that he gets headaches and has trouble breathing." In light of the foregoing, the Board concludes that a new VA examination is necessary to consider the etiology of the Veteran's chronic headaches. Bilateral Hearing Loss Disability The Veteran contends that he has a bilateral hearing loss disability due to in-service noise exposure. He was afforded a VA audiological examination in March 2013. Audiometric testing indicated that the Veteran did not have a right or left ear hearing loss disability for VA purposes at that time, although he did have right ear sensorineural hearing loss in the frequency range of 6000 Hertz or higher. That said, the examiner concluded that the Veteran's hearing loss was at least as likely as not caused by or the result of service. As the Veteran did not have a right or left ear hearing loss disability for VA purposes pursuant to the requirements of 38 C.F.R. § 3.385, entitlement to service connection could not be awarded, despite the positive VA examiner's opinion. In an April 2016 statement, however, the Veteran's representative stated that the Veteran's hearing acuity had worsened since the time of the last examination. Although the Veteran is not competent to diagnose a hearing loss disability for VA purposes, he certainly is competent to report decreased hearing acuity. As such, the Board concludes that a new VA examination is necessary in light of the above positive opinion as to the etiology of the Veteran's hearing problems and his reports of worsening hearing acuity since the time of the last examination. Sleep Apnea Disability In an April 2016 statement, the Veteran's representative indicated that the Veteran contended that he began experiencing sleep impairment, interrupted breathing, and snoring during active service. To date, the Veteran has not been afforded a VA examination for his sleep apnea claim. The claims file indicates that the Veteran does have a current diagnosis of sleep apnea. The precise onset of the Veteran's sleep problems and related symptoms are somewhat unclear. An April 2004 private treatment record, for example, included the Veteran's reports that decreased sleep duration and frequent awakenings had been "a life-long issue. More recently, however, he has been noted by his wife to snore loudly and disruptively, and sleep disturbed breathing with gasping for air in his sleep." In light of the Veteran's representations set forth in the April 2016 statement and given that the above record does not clearly indicate onset of sleep-related problems prior, during, or after service, the Board concludes that a VA examination for sleep apnea is necessary. Right Knee Disability The Veteran contends that he has a current right knee disability that was caused or aggravated by his service-connected left knee disability, to include as a result of an ongoing antalgic gait due to left knee problems. The Veteran was afforded a VA examination for his right knee claim in June 2011. At that time, the Veteran reported ongoing and progressive left knee problems since 1983, with the development of right knee pain about 18 months previously. On examination, the Veteran's gait showed evidence of poor propulsion. Following examination, the examiner diagnosed bilateral strain of the patellofemoral tendon, with associated knee pain. As to etiology, the examiner concluded that the right knee pain was not directly caused by or aggravated by the left knee injury. The rationale was that the left knee injury occurred in 1983 and the Veteran did not begin to experience right knee problems until 2009. Moreover, there was no evidence of degeneration or demineralization in either knee. The April 2016 statement of the Veteran's representative argued that the above examination was inadequate because it failed to consider the evidence of the Veteran's altered gait and the potential that such problems over the years could have on the alternate knee. The Board agrees that the above rationale does not appear to have addressed aggravation of the Veteran's right knee problems by the service-connected left knee disability. As such, an addendum opinion is necessary. Increased Ratings for Left Shoulder and Psychiatric Disabilities In an April 2016 statement, the Veteran's representative argued that the Veteran's left shoulder and psychiatric disabilities had worsened since the last VA examinations in June 2010 (shoulder) and September 2010 (psychiatric). Although the Veteran's representative did not specifically describe how either disability had worsened, given that no related VA treatment records have been associated with the claims file since July 2013 and the above statements suggesting a worsening of the service-connected disabilities, the Board concludes that a remand is necessary to afford the Veteran left shoulder and psychiatric examinations to determine the current severity of the disabilities. Accordingly, the case is REMANDED for the following action: 1. Associate with the electronic claims file all VA treatment records from July 2013 to the present. 2. Schedule the Veteran for an appropriate VA examination for his headache (migraine and tension) disorder claim. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting an interview of the Veteran, and undertaking any studies deemed necessary, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any current headache disorder: (a) was incurred in or is otherwise related to the Veteran's active service OR (b) was caused or (c) aggravated by the service-connected dysthymic disorder and chronic pain disorder. The examiner is invited to consider the May 2003 VA mental health contract examination report wherein the Veteran stated that he "sometimes feels so angry at himself and others that he gets headaches and has trouble breathing." In addition, the examiner is requested to consider the 2011 article from the American Headache Society by Phillip Bain, MD and Frederick R. Taylor, MD titled "Headache Progression - What You MUST Know About the Development of Chronic Headache" referenced in the April 2016 statement from the Veteran's representative. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Schedule the Veteran for an appropriate VA examination for his claimed bilateral hearing loss disability. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting an interview of the Veteran, and undertaking any studies deemed necessary, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any current right or left hearing loss disability was incurred in or is otherwise related to the Veteran's active service. The examiner is invited to consider the March 2013 VA examination report and the positive opinion as to the etiology of the Veteran's hearing problems, despite the absence of a hearing loss disability for VA purposes. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Schedule the Veteran for an appropriate VA examination for his sleep apnea claim. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, conducting an interview of the Veteran, and undertaking any studies deemed necessary, the examiner should render an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any current sleep apnea disability was incurred in or is otherwise related to the Veteran's active service. The examiner is invited to consider the Veteran's reports of ongoing sleep problems that began in service and the April 2004 private treatment record documenting the Veteran's reports that decreased sleep duration and frequent awakenings had been "a life-long issue. More recently, however, he has been noted by his wife to snore loudly and disruptively, and sleep disturbed breathing with gasping for air in his sleep." The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. Obtain a supplemental opinion from the examiner who provided the June 2011 VA right knee examination report. If the examiner is not available, obtain an opinion from another appropriate medical professional. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be reviewed in conjunction with the examination or review, along with any pertinent records associated with the electronic claims files that are not included in the paper file. The examiner/reviewer must provide an opinion on the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right knee disability was caused OR aggravated by his service-connected left knee disability. The examiner/reviewer is invited to consider the lay and medical evidence of an ongoing antalgic gait with decreased propulsion. The examiner/reviewer is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. Schedule the Veteran for an examination to determine the current severity of his service-connected left shoulder disability. The paper and electronic claims files should be made available to the examiner and reviewed in conjunction with the examination. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. 7. Schedule the Veteran for an examination to determine the current severity of his service-connected psychiatric disorders. The paper and electronic claims files should be made available to the examiner and reviewed in conjunction with the examination. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. 8. After the above is complete, readjudicate the Veteran's claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ TANYA SMITH 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).