Citation Nr: 1646842 Decision Date: 12/14/16 Archive Date: 12/21/16 DOCKET NO. 07-05 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a low/mid back disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for headaches. 4. Entitlement to service connection for encephalomalacia. 5. Entitlement to service connection for heart racing. 6. Entitlement to service connection for rhinitis. 7. Entitlement to service connection for sinusitis. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1976 to August 1979 and from January 1981 to January 1987. These matters are before the Board of Veterans' Appeals (the Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified in front of the undersigned Veterans Law Judge, at the RO, in September 2016. A transcript has been associated with the Veteran's claims file. The Veteran's claims for service connection for a cervical spine disability and a lumbar spine disability were remanded in March 2010 and April 2012 for additional development. The claims have been returned to the Board for further appellate adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Service Connection, Migraines The Veteran testified that his migraines were caused by head trauma incurred while boxing in the military and when he fell off of a tank in-service. November 1982 and December 1983 in-service records indicate that the Veteran had a boxing physical. An October 1976 treatment note indicates that the Veteran had headaches. A January 1977 treatment note indicates that the Veteran had a grossly swollen right eye from fighting. A June 1979 in-service examination indicates that the Veteran had headaches, possibly associated with tension, with occasional lightheadedness and dizziness. A January 1996 discharge examination notes that the Veteran had been treated for mild headaches. The Veteran has not been afforded a VA examination; on remand, he should be scheduled for an examination to determine the etiology of his current migraines. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection, Encephalomalacia The Veteran testified that he believed that his in-service head injuries resulted in his encephalomalacia. A March 2013 VA examination report indicates that his encephalomalacia is less likely than not related to service as there were no specific trauma documented due to boxing. However, the Veteran has alleged head trauma was sustained when engaging in boxing as at least a portion of his military duties over a period of years and the record reflects a boxing physical and grossly swollen right eye from fighting. Thus, an additional examination must be afforded, with adequate consideration of the Veteran's contentions. Id. Service Connection, Heart Racing The Veteran testified that his heart raced on occasion, possibly due to his service-connected psychiatric disability. On remand, a VA examination must be afforded with consideration of whether the Veteran has a disability manifesting in his heart racing, secondary to or aggravated by his service-connected psychiatric disability. Id. Service Connection, Rhinitis/Sinusitis A June 1979 examination indicates that the Veteran had sinusitis; various other in-service medical records indicate flu, viral symptoms, etc. The Veteran was afforded an examination in April 2013 that indicated that he had no sinusitis or rhinitis and such condition was not evidence in post-service medical records. However, a VA treatment note dated June 2012 indicates that the Veteran's sinuses were abnormal, there was congestion of the turbinates bilaterally and mild blood in the right nostril. The Veteran was diagnosed with allergic rhinitis. Thus, the Veteran should be afforded a new examination for an opinion concerning whether his currently diagnosed rhinitis and/or sinusitis is related to service, to include consideration of whether any sinus problems are associated with nose injuries incurred while boxing during service. Id. Service Connection, Lumbar and Cervical Spine Disability A November 1977 in-service treatment record indicates a cervical spine spasm. A February 1978 treatment note indicates that the Veteran was in a motor vehicle accident, he injured his back at the T12 level. July 1986, September 1986 and October 1986 treatment notes indicate that the Veteran had back pain. An October 1986 radiologic consultation indicates that the Veteran had fallen off of a tank; he had a normal T-L-S spine. The Veteran was afforded a VA examination in May 2010; however, the VA examiner failed to consider all of the in-service treatment for his back disabilities, the Veteran's history of in-service boxing, or the documented fall from the tank. The Veteran must be afforded an additional examination on remand. Additionally, the prior remand indicated that the Veteran claimed that his back and cervical spine disabilities were secondary to his encephalomalacia; such must be considered in the examination report. Additionally, the Veteran indicated that he had received care at the Louisville VA Medical Center (VAMC) since 1987. The earliest VA treatment records associated with the claims file are dated 1999; the AOJ must ensure all VA treatment records from 1987 to the present have been associated on remand. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board's remand conferred on the Veteran the right to compliance with the remand orders, as a matter of law. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, as already explained herein, the Board's remand orders were not fully complied with. Thus, the RO/AMC is required to conduct the development requested by the Board in order for the Veteran's claims to be fully and fairly adjudicated. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including all treatment records (including those on paper) since 1987, including any ongoing medical records from the Louisville VA Medical System. 2. Schedule the Veteran for a VA examination to determine the nature, severity and etiology of his migraines. All diagnoses should be noted. Following objective examination, the examiner must offer an opinion with a thorough rationale as to whether it is as least as likely as not (that is, probability of 50 percent or better) that any currently diagnosed migraines are related to in-service treatment for headaches, and/or the Veteran's documented boxing career, and/or falling off of a tank. The examiner should additionally consider if the Veteran's headaches are secondary to or aggravated by any service-connected disability, to include his psychiatric disability. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. Again, any opinions should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 3. Schedule the Veteran for a VA examination to determine the nature, severity and etiology of his encephalomalacia. All diagnoses should be noted. Following objective examination, the examiner must offer an opinion with a thorough rationale as to whether it is as least as likely as not (that is, probability of 50 percent or better) that any currently diagnosed encephalomalacia is related to in-service treatment for headaches, and/or the Veteran's documented boxing career, and/or falling off of a tank. The examiner should additionally consider if the Veteran's encephalomalacia is secondary to or aggravated by any service-connected disability. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. Again, any opinions should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 4. Schedule the Veteran for a VA examination to determine the nature, severity and etiology of his heart racing. All diagnoses should be noted. Following objective examination, the examiner must offer an opinion with a thorough rationale as to whether it is as least as likely as not (that is, probability of 50 percent or better) that any currently diagnosed heart racing is related service. The examiner should additionally consider if the Veteran's heart racing is secondary to or aggravated by any service-connected disability, to include his psychiatric disability. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. Again, any opinions should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 5. Schedule the Veteran for a VA examination to determine the nature, severity and etiology of his sinusitis and/or rhinitis. All diagnoses should be noted. Following objective examination, the examiner must offer an opinion with a thorough rationale as to whether it is as least as likely as not (that is, probability of 50 percent or better) that any currently diagnosed rhinitis and/or sinusitis is related to in-service treatment and/or the Veteran's documented boxing career. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. Again, any opinions should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 6. Schedule the Veteran for a VA examination to determine the nature, severity and etiology of the claimed disabilities. All diagnoses should be noted. Following objective examination, the examiner must offer an opinion with a thorough rationale as to whether it is as least as likely as not (that is, probability of 50 percent or better) that any currently diagnosed neck or back disability is related to service, or manifested within one year of service. The examiner should take into account documented in-service treatment and the Veteran's history of boxing in-service as well as his fall from a tank. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. Again, any opinions should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 7. Then, the RO or the AMC should readjudicate the claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative, if any, should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). These claims 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). _________________________________________________ M. H. HAWLEY 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).