Citation Nr: 1751436 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-10 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a lower back disability. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. 5. Entitlement to a disability rating higher than 20 percent for right upper extremity radiculopathy. 6. Entitlement to a rating higher than 20 percent for a cervical spine disability. 7. Entitlement to a rating higher than 10 percent for hypothyroidism. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION A Form DD 214 of record reflects that the Veteran had active service from April 1975 to July 1981, with 15 years, 4 months and 25 days of prior active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2014, February 2014, and October 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The record before the Board consists of electronic records within the Veterans Benefits Management System. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2015). The issues of entitlement to a rating higher than 20 percent for a cervical spine disability, as well as entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). The record shows the Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Accordingly, the Board takes jurisdiction of such issue as part and parcel with the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The weight of the evidence shows that the Veteran's tinnitus was incurred in service. 2. The weight of the evidence shows that the Veteran's headaches are proximately due to his service-connected cervical spine disability. 3. The weight of the evidence shows that the Veteran's lumbar spine arthritis manifested to a compensable degree within one year of the date of his separation from active service. 4. The weight of the evidence shows that the Veteran's depression is proximately due to his service-connected disabilities. 5. Throughout the period of the claim, the Veteran's right upper extremity radiculopathy has manifested as severe incomplete paralysis; it has not manifested as complete paralysis. 6. Throughout the period of the claim, the Veteran's hypothyroidism has required continuous medication; it has not resulted in constipation, mental sluggishness, muscular weakness, mental disturbance, weight gain, cold intolerance, cardiovascular involvement, or bradycardia. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for headaches have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107, 7104 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for service connection for a lower back disability have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for depression have been met. 38 U.S.C.A. §§ 1110, 5103A, 5107, 7104 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 5. Throughout the period of the claim, the criteria for a 50 percent rating, but not higher, for the Veteran's right upper extremity radiculopathy, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8610 (2017). 6. The criteria for a rating higher than 10 percent for hypothyroidism have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. § 4.119, DC 7903 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran. He has also been afforded appropriate VA examinations in relation to his claims. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to further substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. General Legal Criteria Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a) (2017). Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.321 (a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and Analysis The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. In addition, in accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities under review. Service connection for tinnitus The Veteran contends he has ringing in his ears that has persisted since service. His contention is supported by a July 1980 Hearing Conservation Data Sheet in which he responded "yes" to the question of whether he had ringing in his ears, and remarked that he had an occasional "plugged" feeling as well as tinnitus. Although an August 2016 VA examination report indicated the Veteran did not have tinnitus, the Board finds the Veteran is competent to identify symptoms of tinnitus. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Because the evidence indicates the Veteran's tinnitus originated during service, service connection for tinnitus is warranted. Service connection for headaches The record shows the Veteran suffers from headaches. He is service connected for the residuals of a cervical spine laminectomy procedure performed during service. He contends his headaches are caused by his cervical spine disability. In a March 1975 treatment note, the Veteran was reported to have persistent numbness in the vertex of the scalp. In April 1975 he reported headaches radiating up to the vertex. In November 1985 the Veteran reported neck stiffness usually associated with headaches. Pursuant to a December 2013 VA cervical spine examination, the Veteran was noted to have developed neck problems in 1975 along with headaches. A January 2015 primary care note showed the Veteran continued to complain of headaches. In April 2017, the Veteran's representative submitted a VA disability questionnaire completed by a private physician, Dr. H.S. Dr. H.S. stated the Veteran suffered from prostrating tension headaches. He stated the Veteran's headaches were caused, in large part, by the residuals of his in-service cervical laminectomy with degenerative disc disease. He explained that neck pain and tenderness are common symptoms present in many headache disorders, and that when cervical dysfunction or degenerative changes cause headaches, the headaches are referred to as cervicogenic headaches. Dr. H.S. further stated that the most common source of cervicogenic headaches is degenerative changes involving the upper cervical facet joints. Upon review, there is no medical evidence contradicting the April 2017 report by Dr. H.S. As such, the Board finds a preponderance of the evidence indicates the Veteran's current headaches are proximately due to his service-connected cervical spine disability. According, service connection for headaches is warranted. Service connection for a lower back disability The record shows the Veteran currently has lumbar spine degenerative disc disease and stenosis. The Board notes that service connection for arthritis shall be granted on a presumptive basis if manifested to a compensable degree within one year from the date of separation from service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). In this regard, the Board notes that a January 1982 X-ray of the Veteran's lumbar spine showed "minimal degenerative changes." The Board notes that osteoarthritis is defined as "a common form of arthritis . . . that is characterized by progressive degenerative changes in the cartilage of one or more joints." See http://c.merriam-webster.com/medlineplus/osteoarthritis. Based on the foregoing, the Board has determined the Veteran had lumbar spine arthritis in January 1982, within one year of his July 1981 discharge. In sum, there was X-ray evidence of arthritis of two minor joint groups (the cervical and lumbar vertebrae) within one year of the Veteran's discharge from service. Accordingly, an award of service connection for a lower back disability, diagnosed as degenerative disc disease or arthritis, is warranted. The Board notes there are conflicting medical opinions of record as to whether the Veteran's lower back disability is proximately due or has been aggravated by his service-connected cervical spine condition. However, as the Board has determined service connection for the Veteran's lower back disability is warranted on a presumptive basis, it need not address this issue. Service connection for depression The record shows in October 2014, the Veteran reported slowed speech, grogginess, difficulty maintaining alertness, and a distinct drop in mood resulting in complete lack of interest in enjoyable activities and being around others. These symptoms were attributed primarily to the effects of the Veteran's pain medication, required for his lower back and cervical spine conditions. In a March 2015 primary care note, the Veteran's complaints of depression and anxiety related to the loss of control of his activities of daily living were documented. The Veteran was diagnosed with depression and prescribed selective serotonin reuptake inhibitors (SSRIs). The Board notes that in April 2017, the Veteran's representative referenced a medical opinion provided by Dr. H.H-G. to the effect that the Veteran had depressive disorder as a result of his service-connected disabilities. However, upon a thorough review of the record, no such opinion was included with the materials submitted by the representative. Nevertheless, when read in its full context, the Board finds the March 2015 treatment note discussed above constitutes sufficient evidence to support a finding that the Veteran has depression that is proximately due to his service-connected disabilities. In this regard, the Board notes the diagnosis was made based upon symptoms that were caused by the Veteran's service-connected cervical spine and lower back disabilities. In addition, the Board notes the record does not show any psychiatric complaints or treatment related to any cause other than the severity of the Veteran's service-connected disabilities. Based on the foregoing, the Board finds the evidence is at least in equipoise as to whether the Veteran has depression which is proximately due to his service-connected disabilities. Accordingly, service connection for depression is warranted. Increased rating for right upper extremity radiculopathy The Veteran's right upper extremity radiculopathy is rated 20 percent under 38 C.F.R. § 4.124a, DC 8610. The record shows the Veteran is right-handed, so the ratings for the "Major" extremity under DC 8610 will be utilized. Consequently, a 20 percent rating is warranted for mild incomplete paralysis. A 40 percent rating is warranted for moderate incomplete paralysis. A 50 percent rating is warranted for severe incomplete paralysis. A 100 percent rating is warranted for complete paralysis where all shoulder and elbow movements are lost or severely affected, hand and wrist movements not affected. Pursuant to a December 2013 VA cervical spine examination, it was noted the Veteran had radiating pain from his neck into his right upper extremity, and could have numbness and tingling around the shoulder area. The examiner stated the Veteran had radicular symptoms, but was asymptomatic at the time of the examination, and no assessment of the severity of the symptoms was undertaken. The Veteran was afforded an additional VA cervical spine examination in January 2014. The examiner indicated the Veteran had severe intermittent pain and severe paresthesias in his right upper extremity. However, the examiner then indicated the severity of the right upper extremity radiculopathy was "mild." The Veteran was afforded an additional VA cervical spine examination in April 2016. The examiner indicated the Veteran had moderate intermittent pain and paresthesias in the right upper extremity, and that the overall severity of the radiculopathy was moderate. The Board first notes that the January 2014 examiner's indication of "mild" right upper extremity radiculopathy is entirely inconsistent with the findings of severe intermittent pain and severe paresthesias in the right upper extremity. The Board finds that the specific test results shown in the examination report, indicating severe disability, are more probative than the summation as to overall disability. Overall, then, the evidence is at least in equipoise as to whether the Veteran has had severe incomplete paralysis of the right upper extremity throughout the period of the claim. As such, having resolved all reasonable doubt in favor of the Veteran, the Board finds a 50 percent rating for right upper extremity radiculopathy is warranted throughout the period of the claim. However, the Board finds no evidence of complete paralysis of the right upper extremity. As such, a rating higher than 50 percent is not warranted. Increased rating for hypothyroidism The Veteran's hypothyroidism is rated under 38 C.F.R. § 4.119, DC 7903. Under DC 7903, a 10 percent rating is warranted for fatigability or where continuous medication is required for control. A 30 percent rating is warranted for fatigability, constipation, and mental sluggishness. A 60 percent rating is warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. A May 2004 treatment note shows the Veteran has had thyroid problems since 1980, and that he had had his medications adjusted two times over the prior 10 years. He denied any changes in weight. The treatment provider noted the Veteran's report of increased fatigue, but then appeared to suggest the fatigue could have been caused by problems with blood pressure or a recent vascular surgery. A January 2012 treatment note shows the Veteran was experiencing constipation, but as a side effect of his pain medication. The Veteran was afforded a VA examination in December 2013. The examiner noted that continuous medication was required for the Veteran's hypothyroidism, which was being treated and was stable. The examiner indicated there was no fatigability, constipation, mental sluggishness, mental disturbance, muscular weakness, weight gain, sleepiness, cold intolerance, or bradycardia attributable to the Veteran's hypothyroid condition. With regard to the Veteran's reported constipation, the examiner determined it was less likely than not the constipation was related to the Veteran's hypothyroidism. In this regard, the examiner stated that although hypothyroidism can cause constipation, the Veteran had had constipation for many years despite his hypothyroidism being well-controlled. The examiner noted the Veteran's spine conditions limited his ability to ambulate properly and required use of narcotic medication. As such, the examiner stated, the Veteran's decreased activity, chronic pain, and chronic use of narcotics were the most likely causes of his constipation. The Veteran was afforded an additional VA examination in April 2016. The examiner noted the Veteran's hypothyroidism required the use of medication, and indicated he had fatigability attributable to the condition. However, the examiner did not indicate he had any other symptoms. Upon a review of the foregoing, the Board finds that a rating in excess of 10 percent rating is not warranted for the service-connected hypothyroidism. Indeed, although fatigability has been noted as a possible symptom of the Veteran's hypothyroidism, neither constipation nor mental sluggishness have been attributed to the condition by the medical evidence of record. In addition, there is no evidence the Veteran has muscular weakness, mental disturbance, weight gain, cold intolerance, cardiovascular involvement, or bradycardia, much less all of these symptoms, as a result of his hypothyroidism. Accordingly, the Board finds a rating higher than 10 percent for hypothyroidism is not warranted. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, but has determined that a preponderance of the evidence weighs against the Veteran's claim. As such, the doctrine is inapplicable, and the claim must be denied. ORDER Service connection for tinnitus is granted. Service connection for headaches is granted. Service connection for a lower back disability is granted. Service connection for depression is granted. Throughout the period of the claim, a 50 percent rating for the Veteran's right upper extremity radiculopathy is granted. Entitlement to a rating higher than 10 percent for hypothyroidism is denied. REMAND With regard to the Veteran's claim for an increased rating for his cervical spine disability, the Board notes that in the recent case of Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that all VA examinations related to a joint disability must include testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of motion measurements of the opposite undamaged joint. In this regard, the Veteran was afforded VA cervical spine examinations in December 2013, January 2014, and April 2016. However, there is no indication in the examination reports that the VA examiners conducted range of motion testing with and without weight-bearing or with passive as well as active motion. The Board also notes that while the April 2016 examiner discussed the possibility of the Veteran having ankylosis, she then checked a box indicating there was no ankylosis of the spine. Finally, flare-ups were reported at the December 2013 examination. The examiner was unable to estimate the additional functional limitation caused by such flare-ups, as a flare was not present at the time of the examination. The Court has found that the mere lack of opportunity to observe a flare-up is an insufficient basis for not estimating its functional effects. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, in addendum is needed in this regard as well. Under these circumstances, the Board finds that a remand is warranted in order to afford the Veteran a contemporaneous VA examination addressing the severity of his cervical spine disability. The examiner will be instructed to clarify whether the Veteran has ankylosis, and to conduct the examination in such a way as to comply with the Court's holdings in Correia and Sharp. Finally, the examiner should discuss the impact of the cervical spine disability on the Veteran's employability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Furnish the Veteran with an application form to enable him to submit a formal claim of entitlement to TDIU. 3. Thereafter, afford the Veteran a VA examination to determine the current severity of his service-connected cervical spine disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner is directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, as well as with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner must also clarify whether the Veteran has ankylosis, whether of the cervical spine, lumbar spine, or entire spine. The examiner should further discuss additional functional limitation of the cervical spine with repeated movement over time and upon flare-ups. Any such additional limitation of motion should be expressed in additional degrees of lost motion. The examiner must attempt to provide an estimate, even in the absence of an opportunity to observe the flare-up. The estimate may be based on the Veteran's reports of limitation during such flares. The examiner should also discuss how the cervical spine disability might impair employment, indicating any likely limitations. To the extent possible, any limitations presented by the Veteran's other service-connected disabilities (to include his lower back and cervical spine disabilities, right upper extremity radiculopathy, depression, hypothyroidism, headaches, and tinnitus) might impact employment, taking into account the Veteran's occupational history and background. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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) (2017). Department of Veterans Affairs