Citation Nr: 1801702 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-16 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar spine disease with low back pain, status-post surgery with scar prior to January 21, 2015 and in excess of 40 percent thereafter. 2. Entitlement to service-connection for hypertension. 3. Entitlement to service-connection for a cardiac condition status-post coronary bypass graft. 4. Entitlement to service-connection for migraine headaches. 5. Entitlement to service-connection for tinnitus. 6. Entitlement to service-connection for diabetes. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to March 1981. This matter comes before 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 in Roanoke, Virginia. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to an increased rating for a spine disability, TDIU, and service-connection for hypertension, a cardiac condition, and diabetes are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's current migraine headaches had onset during active service. 2 The Veteran's current tinnitus had onset during active service CONCLUSIONS OF LAW 1. The criteria to establish service-connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b), 3.307(a), 3.309(a). 2. The criteria to establish service-connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b), 3.307(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board grants entitlement to service-connection for tinnitus and for migraine headaches as the most probative evidence of record indicates that these disabilities had their onset in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 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 between the present disability and the disease or injury incurred or aggravated during service'- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may 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). There is no dispute in this case that the Veteran has tinnitus and headaches. The only question is whether these disabilities had onset in service or are otherwise related to an in-service event. The Veteran has maintained that both these disabilities had their onset in service. This contention is readily backed up by a review of the Veteran's Service Treatment Records (STR). Specifically, a December 1971 notation reflects a compliant of popping and tapping sounds in his ears as well as headaches. A subsequent STR notation from February 1972 indicates that the Veteran complained of headaches 3-4 times a week for one and a half years. The Veteran is competent to report regarding conditions within a lay person's expertise such as tinnitus and headaches and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly all elements of service-connection with respect to tinnitus and headaches have been met. ORDER Entitlement to service-connection for headaches is granted. Entitlement to service-connection for tinnitus is granted. REMAND Although the Board sincerely regrets the additional delay that will result from remanding this claim, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Board must remand the Veteran's hypertension and cardiac claim so that the Veteran may be afforded a VA medical examination to determine the etiology of these disorders. The Veteran indicates that his heart problems began in service and stem from the stress of service and having been separated from his family. See Correspondence from Veteran. Based on a medically-untrained review by the Board, there do not appear to be an explicit diagnosis of hypertension or other cardiac conditions while the Veteran was on active duty. However, there are several occasions where the Veteran has diastolic blood pressure of 90mm or greater. For example, the Veteran's BP on February 9, 1972 is recorded as 140/90 when the Veteran complained of headaches, and then in February 1981 it was recorded as 136/100, 129/92, 142/190, and 132/90 on the Veteran's separation exam. VA regulations found at 38 CFR § 4.104 Note(1) provide that "the term hypertension means that diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." The Board is without medical expertise to decide whether this indicates that the Veteran had hypertension while in service, and whether any later cardiac condition was related to, or aggravated by hypertension. Consequently these claims must be remanded to obtain a medical examination. The Veteran's claim for an increased rating must be remanded so as to afford the Veteran an adequate examination that fully takes account of his flare-ups. Generally, a medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examination and also describes the disability . . . in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). The Veteran's most recent examination in January 2015 indicates that the Veteran has flare ups that impact the function of his spine, however the examiner then indicates that the Veteran has no additional limitation of functional ability during a flare up. Compare January 2015 VA Medical Examination at Page 1, Section 3 with Id. at Page 8, Section 20. Without a reconciliation of the Veteran's flare-ups the Board's evaluation of the Veteran's lumbar disability cannot be considered to be an informed one. Consequently a new examination is necessary. The Board acknowledges that the RO indicated that a rating in-excess of 40 percent is not desired by the Veteran. However, the record is ambiguous in this regard, as the Veteran originally requested a rating of 50 percent in his Notice of Disagreement, and only later indicated 40 percent in his Form 9 when perfecting the appeal. Since the most recent VA examination is inadequate and requires a remand, the Board need not decide the discrepancy. The appropriate rating for the Veteran's back also necessitates remanding the Veteran's claim for a TDIU which has been raised by the record. The Veteran's July 2012 VA Examination indicates that the Veteran retired due to his back disability. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Presently, the Board does not have a clear picture of how the Veteran's back impacted his employment, nor does it have a clear picture of his employment and educational history. Finally, adjudication of the Veteran's request for TDIU is inextricably intertwined with the headache claim, since the Veteran's rating might determine whether schedular or extraschedular TDIU is appropriate for consideration. Therefore, the Board also finds that adjudication of the TDIU request must also be placed on hold until the AOJ adjudicates the above stated claim and then the TDIU request must be adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally there is the issue of the Veteran's diabetes claim which must be remanded for final adjudication by the RO through a statement of the case (SOC). The Veteran's diabetes claim was denied by way of a May 2013 rating decision. The Veteran filed an August 2013 NOD where he mentioned disagreement with the diabetes decision. Rather than issue an SOC, the RO issued a subsequent rating decision continuing the denial of the claim. Where, as here, there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on those issues is needed because the Board cannot issue a final adjudication. Manlincon v. West, 12 Vet. App. 238 (1999). In processing the SOC, the Board would appreciate if the RO were to consider whether a VA medical examination or a grant of benefits is necessary as the Veteran's Private Medical Treatment Records indicate that the Veteran's diabetes was caused by steroid treatment needed for his service-connected lumbar spine disease. See June 21 1996 note from Doctor H.C.H. Consequently, consideration or development of diabetes and any associated medical conditions on a secondary service connection basis may be advisable. As this matter is being remanded, all outstanding VA medical records should be obtained. Sullivan v. McDonald, 815 F.3d 786 (2016). Moreover, the Veteran should be given an opportunity to identify any private medical records he would like considered in connection with his appeal. 38 C.F.R. § 3.159(c). 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. Obtain all outstanding VA medical records. 2. Ask the Veteran to identify any private medical care providers who treated him for his spine, hypertension, and cardiac medical conditions. After securing any necessary authorization, obtain records from any identified providers. 3. Schedule the Veteran for any appropriate VA examinations to determine the current nature, severity and occupational impact of his spine disability as well as the nature and etiology of his hypertension and cardiac disabilities. The claims file should be made available to and reviewed by the examiners and all necessary tests should be performed. All findings should be reported in detail. Spine Development: The appropriate examiner should identify spine pathologies found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. If appropriate, full range of motion testing must be performed where possible. Any joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If appropriate, the examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If appropriate, the examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. Service-Connection Development The appropriate examiners for the Veteran's hypertension and cardiac disorders are asked to opine as to the following after any examination of the Veteran and review of the file: (a) Diagnose all hypertension and cardiac disorders; (b) Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service? (Consider the Veteran's statements regarding the onset of heart problems and the BP readings on February 9, 1972 recorded as 140/90 when the Veteran complained of headaches, and then in February 1981 recorded as 136/100, 129/92, 142/190, and 132/90 on the Veteran's separation exam (c) If not directly related to service on the basis of questions (b), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? (d) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease? In answering all questions (a) to (d), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 4. Complete any reasonably necessary development necessary to determine the Veteran's eligibility for TDIU. 5. Issue an SOC for the Veteran's diabetes claim. The Board would again suggest that the RO consider whether a grant of benefits or an examination is necessary based on the evidence from the Veteran's Private Medical Treatment Records indicating that the Veteran's diabetes was caused by steroid treatment needed for his service-connected lumbar spine disease. See June 21 1996 note from Doctor H.C.H. 5. After completing the above development, including any additional development that may be warranted, readjudicate the appeal, including an adjudication of the TDIU claim. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs