Citation Nr: 1800012 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 14-07 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for headaches, to include as secondary to a low back disability. 3. Entitlement to service connection for hypertension (claimed as high blood pressure). REPRESENTATION Veteran represented by: Roger B. Hale, Attorney ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served in the U.S. Army from November 1990 to November 1993. He had subsequent Army National Guard service from January 1994 to January 1997. These matters come before the Board of Veterans' Appeals (Board) from a February 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. On his March 2014 substantive appeal, the Veteran requested a Board hearing. The Veteran was scheduled for a videoconference hearing in June 2017, which was rescheduled for September 2017. Notice for the September 2017 hearing was sent to the Veteran's address of record in August 2017. The Veteran did not show up for the scheduled Board hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND On his initial August 2011 claim for service connection, the Veteran argued that he was first assessed with high blood pressure in active service, and that it had continued from his service to the present. Regarding his low back disability, the Veteran stated that he injured his back in service. In a subsequent, February 2013 statement, the Veteran noted he injured his back during active service and re-injured it during National Guard service. Regarding his headaches, on his initial claim, the Veteran reported that his headaches were due to his low back disability. Low Back In February 2013, the Veteran reported that he initially injured his low back in 1992 in Germany; he was lifting a tow bar on a "Tracked Recovery Vehicle" when he felt a sharp pain in his lower back. He stated he finished working with severe discomfort, and awoke the next day with limited range of motion. He stated he went to sick call the following morning and was given Motrin. He stated he was stiff for a week, and then the "pain receded" and he "did not give it much more thought." He then "re-aggravated" his back on several occasions while he was stationed at Fort Still, Oklahoma, but that he self-medicated on these occasions. He stated he documented his back problems on his separation records. The Board notes that the Veteran's signed August 1993 report of medical history included a notation of recurrent back pain, and indicated it was for the "last 3 or 4 weeks.". The Board was unable to locate any service treatment records with treatment for back pain. The February 2013 statement also included the Veteran's note of injuring his back again in the Virginia Army National Guard in 1996 when "an Alice pack containing concrete M-21 training mines fell on the top of the M113 that [he] was traveling inside onto [his] and another soldier's back." He stated he visited a local military clinic, and that this was during the 1996 Annual Training requirement in Germany. The Veteran stated that his separation from the National Guard was "punctuated by [his] squad leader telling [him] that [he] just did not have to come back...[and he] did not have the opportunity to properly document [his] continuing back-related issues." The electronic record includes the Veteran's active duty Army service treatment records, including the August 1993 medical history the Board cited above. It also contains very limited service treatment records from the Veteran's Army National Guard service. Specifically, it includes his January1994 enlistment medical history and examination. It does not include a separation medical history and examination, although the Veteran has indicated he was not provided one. In March 2014, the Veteran supplied a copy of a June 1996 "individual sick slip" for his "upper back." This record was not contained in the copies of service treatment records obtained by the RO. Given that there may be additional Army and/or Army National Guard service treatment records available, the Board will remand so that the RO can attempt to obtain any outstanding records. The Veteran's dates of active duty for training and inactive duty for training should also be obtained. The record contains a number of private medical records post-service, the earliest of which are from 2000. In October 2000, the Veteran complained of a seven-year history of low back pain (1993). He reported that he pulled a muscle in service. He had another episode of low back pain with right leg pain four years prior (1996), and most recently his back pain reoccurred one year prior (1999). A July 2000 MRI showed bulging disc protrusion at L4-5 and L5-S1. The Veteran had not been provided a VA examination in conjunction with his low back disability. VA must provide an examination when there is competent evidence of a disability that may be associated with an in-service event, injury, or disease, or with a service connected disability, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Given that he reported recurrent back pain on his 1993 separation medical history, provided a sick slip for an "upper back" injury in 1996, and his post-service treatment records from 2000 (prior to his claim for service connection) included a medical history of initial injuring his back in 1993, the Board finds that the claim must be remanded for a VA examination and opinion. Headaches As noted above, on his initial claim, the Veteran argued that his headaches were due to his low back disability. As his headache claim is secondary to his low back disability claim, the issues are intertwined and his headache claim must be remanded. The Veteran's currently available service treatment records do not include complaint of headaches. On his 1993 separation medical history, the Veteran denied a history of severe or frequent headaches. His earliest post-service treatment record which addressed headaches was from February 2001, and included that the Veteran was "no longer experiencing headaches following his lumbar epidural steroid blocks." This would indicate that, at some point, he had headaches prior to February 2001. The Veteran was next treated for headaches in September 2003, when he reported headaches for four days associated with difficulty sleeping. In October 2006, the Veteran was seen by Dr. P.C., a neuro-ophthalmologist, with a "reported history of recurrent headaches going back to childhood." He had "mild anisocoria, right pupil greater than left, with slight sluggishness of response on the right." He reported a history of being struck in the eye with a stick as a child and having a corneal scar outside the visual axis. He also suffered a skull fracture as a child, without sequelae. A September 2006 brain MRI was normal. The physician diagnosed "probable springing pupil syndrome associated with migraine." The physician noted the Veteran gave a strong history for migraine, which has recently been exacerbated. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that (1) the disability existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. See 38 U.S.C. § 1111; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, the Veteran's enlistment evaluation did not include "notation" of a headache disorder. Subsequent private treatment records include the Veteran's statements that he had migraine headaches since childhood, and that he suffered a head and eye injury in childhood. As such, a VA examination should address the clear and unmistakable standards with the presumption of soundness. The VA examination should also address the Veteran's secondary service connection claim with his low back disability. Hypertension The Veteran's available service treatment records include a June 1990 enlistment examination. The Veteran's blood pressure during the examination was initially 158/80. Rechecks of his blood pressure were 152/80 and 138/84. No diagnosis of hypertension was made. An April 1992 screening included a blood pressure reading of 152/96. The Veteran denied a history of taking blood pressure medication. In March 1993, when he was seen for pneumonia/bronchitis his blood pressure was 155/83. His remaining blood pressure readings in service do not appear to be elevated. He was not diagnosed with hypertension or noted to have high blood pressure in his available active service and National Guard service records. On his August 1993 separation medical examination his blood pressure was 120/70. On his January 1994 enlistment examination for the National Guard, the Veteran's blood pressure was 110/66. The earliest post-service treatment record which addressed the Veteran's high blood pressure was a February 2003 private notation that indicated that the Veteran had been on Atenolol for two years. Given that the Veteran had some elevated blood pressures in service, and he was taking medication for hypertension from roughly 2001 onward, he should be afforded a VA nexus examination. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any outstanding Army service treatment records and Army National Guard service treatment records. Specifically, the Veteran submitted a treatment record (1996 Sick Slip) from his National Guard service that was not contained in the records in the electronic file. All records/responses received must be associated with the electronic file. 2. Determine the Veteran's dates of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). 3. Schedule the Veteran for a VA spine examination. After a review of the electronic file, and interview and evaluation of the Veteran, the examiner should provide the following: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's current lumbar spine disability is a result of his active service? A complete rationale/explanation must accompany each opinion. 4. Schedule the Veteran for a VA headache examination. After a review of the electronic file, and interview and evaluation of the Veteran, the examiner should provide the following: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's migraines/headaches are a result of his active service? b) Is it at least as likely as not (50/50 probability or greater) that the Veteran's migraines/headaches are due to or aggravated by his lumbar spine disability? If the examiner determines that his headaches are aggravated by his lumbar spine disability, then the examiner should provide information on the base severity of headaches prior to aggravation, to include pointing out any pertinent treatment records/symptoms. c) Did the Veteran's migraines/headaches clearly and unmistakably exist prior to active service? If yes, does the evidence clearly and unmistakably show that his migraines/headaches were not aggravated by service? (See the October 2006 neuro-ophthalmologist treatment record). A complete rationale/explanation must accompany each opinion. 5. Schedule the Veteran for a VA hypertension examination. After a review of the electronic file, and interview and evaluation of the Veteran, the examiner should provide the following: a) Is it at least as likely as not (50/50 probability or greater) that the Veteran's current hypertension is a result of his active service? Please note the elevated blood pressure during his enlistment evaluation, and in April 1992 and March 1993 in providing this opinion. b) Did the Veteran's hypertension clearly and unmistakably exist prior to active service? If yes, does the evidence clearly and unmistakably show that his hypertension was not aggravated by service? (As the enlistment examiner did not diagnose hypertension, and his readings did not meet VA's definition of hypertension under 38 C.F.R. § 4.104, DC 7101 Note 1, a presumption of soundness opinion is being sought). A complete rationale/explanation must accompany each opinion. 6. Thereafter, readjudicate the Veteran's claims on appeal. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time to respond. 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). _________________________________________________ KRISTI L. GUNN 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) (2017).