Citation Nr: 1756079 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 09-16 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for tinnitus, including as due to a service-connected acquired psychiatric disability. 2. Entitlement to service connection for tension headaches, including as due to an undiagnosed illness. 3. Entitlement to a disability rating greater than 20 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1979 to November 1982 and from July 1998 to February 1999, including in Kuwait from September 1998 to February 1999 in support of Operations Desert Thunder II and Desert Fox. He had a period of active duty for training (ACDUTRA) with the U.S. Army National Guard from July 8, 2000, to July 29, 2000. He also had additional unverified U.S. Army Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied, in pertinent part, the Veteran's claims of service connection for tinnitus, including as due to a service-connected acquired psychiatric disability, and for tension headaches, including as due to an undiagnosed illness, and also denied a claim for a disability rating greater than 20 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine. The Veteran disagreed with this decision in June 2015. He perfected a timely appeal with respect to these claims in May 2016. (The Board notes parenthetically that, because the Veteran previously had perfected a timely appeal on other claims which are no longer in appellate status, the 09 docket number was retained for this appeal.) The Board observes that, in the currently appealed rating decision, the RO adjudicated the Veteran's service connection claim for tension headaches, including as due to an undiagnosed illness, on the basis of whether new and material evidence had been received to reopen this claim. A review of the Veteran's claims file shows that, although this claim previously was adjudicated in a December 2006 rating decision which was not appealed and became final, additional relevant service treatment records which existed and had not been associated with the claims file as of December 2006 were received by VA in May 2009, more than 1 year following this rating decision. Accordingly, the Board has recharacterized this claim as entitlement to service connection for tension headaches, including as due to an undiagnosed illness, and will adjudicate it de novo pursuant to 38 C.F.R. § 3.156(c). See 38 C.F.R. § 3.156(c) (2017). In October 2016, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran's former attorney withdrew his representation in a March 2017 letter. See 38 C.F.R. § 14.633 (2017). Thus, the Veteran is considered unrepresented before VA. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Unfortunately, as is explained below in greater detail, the issue of entitlement to service connection for tension headaches, including as due to an undiagnosed illness, is addressed in the REMAND portion of the decision below and is REMANDED again to the AOJ. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The record evidence shows that the Veteran was ordered to perform annual ACDUTRA with his U.S. Army National Guard unit from July 8, 2000, to July 29, 2000. 2. The record evidence shows that the Veteran reported on VA examination in March 2017 that he incurred head trauma during a fight with a civilian while on ACDUTRA in 2000 and began experiencing tinnitus after this incident. 3. The record evidence reasonably suggests that the Veteran's current tinnitus is related to active service. 4. The record evidence shows that the Veteran's service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine is manifested by, at worst, forward flexion limited to 40 degrees and evidence of pain on weight-bearing and non-weight bearing. CONCLUSIONS OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C. §§ 101(22), 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for a disability rating greater than 20 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he incurred tinnitus during active service. He specifically contends that he incurred brain trauma in a fight with a civilian during a period of ACDUTRA when he was off-duty and this in-service brain trauma caused or contributed to his current tinnitus. He also contends that his service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine is more disabling than currently evaluated. Factual Background and Analysis The Board finds that the evidence supports granting the Veteran's claim of service connection for tinnitus. As noted above, the Veteran contends that he incurred brain trauma when he was involved in a fight with a civilian when he was off-duty during a period of ACDUTRA in 2000 and this in-service brain trauma caused or contributed to his current tinnitus. The evidence reasonably supports finding an etiological link between the Veteran's current tinnitus and active service. For example, the Veteran has reported consistently that he incurred tinnitus during active service. The Board notes that it is unfortunate that the Veteran's service treatment records for his period of active service between July 1998 and March 1999 are not available for review as the AOJ concluded in a memorandum to the record in August 2006, several years before he filed his currently appealed claims. In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA must provide an explanation to the Veteran regarding VA's inability to obtain his or her service treatment records. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Court also has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000). In Gagne v. McDonald, 27 Vet. App. 397 (2015), the Court defined futile under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 as "a search where it is apparent that the sought-after records are either not in existence or not in the possession of the record's custodian." See Gagne, 27 Vet. App. at 403. The Board observes here that it is unlikely that the Veteran's service records would document his involvement in a fight with a civilian while he was off-duty unless he sought medical treatment for the brain trauma he allegedly incurred as a result of this incident. In any event, having reviewed the record evidence, and especially in light of the AOJ's documented attempts to obtain the Veteran's service treatment records for his period of active service between July 1998 and March 1999 (as outlined in the August 2006 memorandum), the Board concludes that these records are not available for review and any attempt to obtain them would be futile. Id. The Board next observes that there are service personnel records associated with the Veteran's appeal reasonably support finding that he was on a period of ACDUTRA in July 2000 when he was involved in a fight with a civilian while off-duty. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). For example, in June 2015, the Veteran submitted a copy of official U.S. Army orders dated on May 2, 2000, directing him to report for a period of annual ACDUTRA with his U.S. Army National Guard unit from July 8, 2000, to July 29, 2000. Additional official U.S. Army records provided by the Veteran in June 2015 in support of this appeal document that a Line of Duty Investigation occurred in March 2001 concerning a back injury which the Veteran incurred while on a period of ACDUTRA dated between July 8, 2000, and August 29, 2000. (The Board notes parenthetically that the apparent discrepancy between the official U.S. Army orders providing a period of annual ACDUTRA between July 8, 2000, and July 29, 2000, and a March 2001 Line of Duty Investigation providing a period of ACDUTRA between July 8, 2000, and August 29, 2000, may be a typographical error on the Line of Duty Investigation report.) Having reviewed this evidence, the Board finds it reasonable to conclude that the Veteran was on a period of ACDUTRA with his U.S. Army National Guard unit from July 8, 2000, until at least July 29, 2000 (and possibly until August 29, 2000). Id. The Board further finds that the Veteran's lay statements that he was on ACDUTRA when he was involved in a fight with a civilian while off-duty to be credible because they are consistent with the facts and circumstances of this period of ACDUTRA. The medical evidence of record also supports granting the Veteran's service connection claim for tinnitus on a direct basis. See generally 38 C.F.R. §§ 3.303, 3.304 (2017). For example, on VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in March 2017, the Veteran's complaints included recurrent tinnitus "following head trauma while on active duty." The Veteran reported that he had been hit in the head "during a fight in town" in 2000. The VA examiner opined that it was at least as likely as not that the Veteran's tinnitus was related to active service. The rationale for this opinion was based on the Veteran's report that he incurred brain trauma "from a fight in town in 2000 while on active duty military service." The rationale also was "based on the known correlation between head trauma and the onset of tinnitus." The diagnosis was tinnitus. The Veteran contends that he incurred tinnitus during active service, specifically on a period of ACDUTRA in 2000 when he was involved in a fight with a civilian and incurred brain trauma. Although his complete service treatment records are not available for review, a review of the Veteran's available service personnel records reasonably supports finding that he was on ACDUTRA in July 2000 when he was involved in a fight with a civilian while off-duty and allegedly incurred brain trauma. The medical evidence (VA examination in March 2017) also reasonably suggests that there is an etiological link between his reported in-service brain trauma following a fight with a civilian during a period of ACDUTRA and his current tinnitus. The March 2017 VA examiner's positive nexus opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. See also 38 C.F.R. § 3.102 (2017). The Board next finds that the preponderance of the evidence is against granting the Veteran's claim for a disability rating greater than 20 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine. The Veteran contends that his service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine is more disabling than currently evaluated. The record evidence does not support his assertions, however. It shows instead that this disability is manifested by, at worst, forward flexion limited to 40 degrees and evidence of pain on weight-bearing and non-weight bearing. For example, on VA back (thoracolumbar spine) conditions DBQ in May 2015, the Veteran's complaints included difficulty with prolonged sitting, standing, walking, stooping, and bending due to flare-ups of his back condition. Range of motion testing of the thoracolumbar spine showed forward flexion to 40 degrees with objective evidence of painful motion beginning at 40 degrees. Physical examination showed posture and gait within normal limits, no localized tenderness or pain on palpation for the joints and/or soft tissues of the thoracolumbar spine, guarding or muscle spasm not resulting in an abnormal gait or spinal contour, normal muscle strength throughout, no muscle atrophy, normal reflexes throughout, negative straight leg raising bilaterally, no radicular pain or any other signs or symptoms due to radiculopathy, no other neurologic abnormalities, and no intervertebral disc syndrome. The VA examiner stated that the Veteran's morbid obesity "is a definite factor in the severity of his lower back condition." This examiner also stated that there were other contributing factors of pain, weakness, fatigability, and/or incoordination and "additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time." This examiner stated further that the Veteran lost approximately 50 degrees of motion in forward flexion (from a normal 90 degrees) due to pain on flare-ups or repeated use. The diagnoses were degenerative disc disease of the thoracolumbar spine and degenerative joint disease of the thoracolumbar spine. On VA back (thoracolumbar spine) conditions DBQ in March 2017, the Veteran's complaints included worsening "spams in lower back...at times." He described his flare-ups as lower back spasms. Range of motion testing was normal with forward flexion to 90 degrees with pain noted on exam but not resulting in functional loss, evidence of pain on weight-bearing, and no additional limitation of motion on repetitive testing. The VA examiner stated that the Veteran "has varying degrees of [range of motion] and functional loss with varying degrees of flare-ups or after repetitive use" due to all of the DeLuca factors which the Veteran described as "increased pain, fatigue, weakness, lack of endurance, and incoordination rather than any predictable or usual change in [range of motion]." This examiner also found objective evidence of pain on passive range of motion and non-weight bearing testing. Physical examination in March 2017 showed objective evidence of localized tenderness or pain on palpation of the joints or soft tissues of the thoracolumbar spine, significantly limited functional ability with flare-ups due to all of the DeLuca factors, localized tenderness or guarding not resulting in abnormal gait or abnormal spinal contour, disturbance of locomotion, interference with sitting and standing, 5/5 muscle strength throughout, no muscle atrophy, normal reflexes throughout, normal sensation in the thighs, knees, lower legs, and ankles, decreased sensation in the feet/toes, positive straight leg raising bilaterally, mild intermittent pain of the bilateral lower extremities, severe paresthesias and/or dysesthesias of the bilateral lower extremities, and severe numbness of the bilateral lower extremities, moderate radiculopathy of the bilateral femoral and sciatic nerves, and no ankylosis. The Veteran experienced urinary incontinence which was related to his thoracolumbar spine (back) condition. Although intervertebral disc syndrome was present, the Veteran had not experienced any acute signs or symptoms requiring bed rest and treatment by a physician in the previous 12 months. The Veteran regularly used a cane for ambulation. The VA examiner stated that the Veteran was unable to lift or bend or tie shoes due to his back pain. This examiner also stated that the Veteran's intervertebral disc syndrome and urinary incontinence were "progressions" of his degenerative disc disease. The diagnoses were degenerative disc disease and degenerative joint disease of the thoracolumbar spine, degenerative arthritis of the spine, and intervertebral disc syndrome. The Veteran contends that his service-connected degenerative disc disease and degenerative joint disease are more disabling than currently evaluated. Despite his assertions to the contrary, the record evidence does not support assigning a disability rating greater than 20 percent for this disability under DC 5237 at any time during the appeal period. See 38 C.F.R. § 4.71a, DC 5237 (2017). It shows instead that, although the Veteran continues to complain of worsening low back pain, urinary incontinence, and radiculopathy of the bilateral lower extremities, he already is in receipt of additional disability compensation for these additional symptoms associated with the service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine. The Board notes in this regard that, in a September 2017 rating decision, the AOJ granted separate service connection claims for radiculopathy in the femoral and sciatic nerves of each of the Veteran's lower extremities and for urinary incontinence. The time for initiating an appeal of that decision has not yet expired. See 38 C.F.R. § 20.302 (2017). The Board also notes that the Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology since such a result would overcompensate the claimant for the actual impairment of his or her earning capacity and would constitute pyramiding. See Esteban v. Brown, 6 Vet. App. 259 (1994) (citing Brady v. Brown, 4 Vet. App. 203 (1993)). In other words, the Board cannot consider the radiculopathy in each of the lower extremities and urinary incontinence in evaluating the Veteran's entitlement to an increased rating for his service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar because to do so would constitute pyramiding. Id. The record evidence shows instead that the Veteran experienced, at worst, forward flexion limited to 40 degrees with objective evidence of pain beginning at 40 degrees as a result of his service-connected degenerative disc disease and degenerative joint disease of the thoracolumbar spine (as seen on VA examination in May 2015). The medical evidence shows that the Veteran does not experience any ankylosis (whether favorable or unfavorable) of the entire thoracolumbar spine or the entire spine (i.e., a 40, 50, or 100 percent rating under DC 5237) as is required for a disability rating greater than 20 percent under DC 5237. See 38 C.F.R. § 4.71a, DC 5237. The Board acknowledges that the March 2017 VA examiner did not explain how the range of motion attributable to the Veteran's thoracolumbar spine had improved so dramatically from being limited to 40 degrees on VA examination in May 2015 to being completely normal at 90 degrees on VA examination in March 2017. It appears that the Veteran may have experienced some limitation of motion at his March 2017 VA examination but the VA examiner stated that any limitation of motion was not manifested as "predictable or usual" changes in range of motion. More importantly, the Veteran has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 20 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine. In summary, the Board finds that the criteria for a disability rating greater than 20 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine have not been met. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to a disability rating greater than 20 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine is denied. REMAND The Veteran also contends that he incurred tension headaches during active service, or, alternatively, an undiagnosed illness initially experienced when he was in the southwest Asia theater of operations caused or aggravated (permanently worsened) his current tension headaches. The Board notes that this claim was remanded most recently in October 2016. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The record evidence shows that the Veteran has been diagnosed as having headaches. As noted in the Introduction, the record evidence also shows that the Veteran had active service in the southwest Asia theater of operations between September 1998 and February 1999. Unfortunately, there is no medical opinion currently of record addressing the contended etiological relationship between the Veteran's headaches and active service. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the nature and etiology of his tension headaches. The AOJ also should attempt to obtain the Veteran's updated treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA and private treatment records which have not been obtained already. 2. Schedule the Veteran for examination to determine the nature and etiology of any tension headaches. The claims file should be provided for review. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that tension headaches, if diagnosed, are related to active service or any incident of service. The examiner also is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an undiagnosed illness initially experienced while the Veteran served the in southwest Asia theater of operations caused or aggravated (permanently worsened) his tension headaches, if diagnosed. A rationale also should be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner should explain why this is so. The examiner is advised that the Veteran served in the southwest Asia theater of operations from September 1998 to February 1999. 3. Readjudicate the appeal. 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). 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. §§ 5109B, 7112 (West 2012). ______________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs