Citation Nr: 1635827 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 10-07 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected low back strain. 2. Entitlement to service connection for a headache disorder, to include tension and cervicalgia, and as secondary to service-connected degenerative disc disease of the cervical spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from June 1992 to June 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a November 2015 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The Board notes that the Veteran was previously represented by attorney Brandon T. Rickard. In a November 2015 statement, the Veteran revoked representation by that attorney. He later appointed the Disabled American Veterans as his representative in February 2016. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2016. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. This appeal was processed using the Virtual VA paperless claims processing system and VBMS. Accordingly, any future consideration of this case should take into consideration the existence of these records. The issue of entitlement to service connection for a headache disorder, to include tension and cervicalgia, and as secondary to service-connected degenerative disc disease of the cervical spine, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's cervical spine disorder, diagnosed as degenerative disc disease, is attributable to his service-connected low back strain. CONCLUSION OF LAW The Veteran's cervical spine disorder, diagnosed as degenerative disc disease, is proximately due to, or the result of, his service-connected low back strain. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis, may be presumed to have been incurred in service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). In addition, service connection can be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). During the Veteran's active service, his service treatment records (STRs) show that he was assessed to have a mid-back spasm in March 1996 following a racquetball injury. The Veteran complained of persisting low back pain later in March 1996, and the assessment was T5-7 paraspinal muscle spasm. By April 1996, the Veteran was noted to have continual low back pain, and the impression was back strain that was resolving. In the April 1996 separation examination, no abnormalities were noted in the spine/other musculoskeletal category or in the head, face, neck, and scalp. The Veteran also failed to report whether he had recurrent back pain in the April 1996 Report of Medical History. Following the Veteran's discharge from active service, a December 1996 VA general medical examination report indicated that the Veteran's head, face, and neck were negative for problems. The examiner also stated that the Veteran's musculoskeletal system was negative except for the low back. The first available report of neck pain is from June 2006, when the Veteran was diagnosed with somatic dysfunction of the cervical, thoracic, and lumbar area. See June 2006 VA treatment record. The record also reflects that the Veteran received treatment for his cervical spine from S.S., a doctor of chiropractic medicine (DC), from December 2007 through February 2012. During a May 2016 Decision Review Officer (DRO) hearing, the Veteran testified that his neck also hurt when he injured his back during service. See May 2016 DRO Hearing Transcript (Tr.), page 2. He reportedly did not seek treatment until his neck began to bother him again six or seven years prior to the hearing. See Tr., page 2. The Veteran explained that he delayed seeking treatment for his neck problems as the symptoms were often alleviated by the treatment he was already receiving for his low back disability. See Tr., page 5. The Veteran contends that his cervical spine disorder is secondary to his service-connected low back strain. See Tr., page 8. The Board notes that the Veteran has a current diagnosis for degenerative disc disease of the cervical spine. See May 2013 VA examination. Thus, the remaining question is whether the Veteran's current cervical spine disorder is proximately due to or aggravated by his service-connected low back strain. In a May 2016 letter, S.S. stated that the deterioration of the Veteran's lumbar spine has led to a continued degeneration of his cervical spine. The Board finds this opinion to be persuasive as it was based on a review of the Veteran's service treatment records, current medical records, and an examination of the Veteran. See Letters from S.S. dated in January 2009, August 2010, and May 2016. The Board notes that in May 2013, a VA examiner gave a negative nexus opinion regarding direct service connection. However, the examiner did not provide an opinion that addressed the Veteran's theory of entitlement concerning secondary service connection. Thus, there is no contrary opinion of record to weigh against the May 2016 opinion from S.S. Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's cervical spine disorder, diagnosed as degenerative disc disease, is due to or the result of his service-connected low back strain. Secondary service connection is therefore warranted. See 38 C.F.R. § 3.310. As the record supports a grant of secondary service connection, the Board need not address any other theory of entitlement advanced. ORDER Service connection for a cervical spine disorder, diagnosed as degenerative disc disease, secondary to service-connected low back strain is granted. REMAND Regarding the Veteran's service connection claim for a headache disorder, a remand is necessary to obtain an adequate VA medical opinion. The Veteran was provided with a VA examination related to his claim in May 2013. The examiner diagnosed the Veteran with tension and cervicalgia headaches, and he opined that it was less likely than not that these disorders were incurred in or caused by the claimed in-service injury, event, or illness. However, the May 2013 VA medical opinion did not address the Veteran's contention that his headache disorders are secondary to his cervical spine disability. See May 2016 Decision Review Officer Hearing Transcript, page 8. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, the Board must consider all theories of entitlement if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). Consequently, a remand is necessary to obtain an addendum medical opinion that addresses all theories of entitlement. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his headache disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include records from the Oscar G. Johnson VA Medical Center dated since March 2016. 2. After the preceding development is completed, obtain a VA medical opinion from a qualified examiner on the etiology of the Veteran's diagnosed headache disorders. The electronic claims files must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file and indicate that such a review has taken place in the examination report. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. An examination not required unless it is deemed necessary by the examiner. For the Veteran's diagnosed headache disorders of tension and cervicalgia, the examiner must provide an opinion as to the following questions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during, or was caused by, active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused by his degenerative disc disease of the cervical spine. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was aggravated (chronically worsened) by his degenerative disc disease of the cervical spine. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. 4. After completing the above actions, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs