Citation Nr: 1803567 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-27 906 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent disabling for service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a back condition. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 2004 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) from an May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Pursuant to the above referenced decision, the RO granted service connection for the Veteran's PSTD and assigned an evaluation of 30 percent disabling, effective July 26, 2010. Service connection for a back condition, migraine headaches, and vertigo was denied. In March 2012, the Veteran timely filed a notice of disagreement as to the May 2011 rating decision. A Decision Review Officer Decision, dated August 2013, increased the Veteran's assigned evaluation to 50 percent disabling, effective July 26, 2010. Also in August 2013, the RO issued a statement of the case confirming the increased rating for the Veteran's service-connected PTSD and reaffirming the denial of the Veteran's claims of entitlement to service connection for a back condition, migraine headaches, and vertigo. In September 2013, the Veteran filed a VA Form 9 Appeal to the Board of Veterans' Appeals asserting entitlement to an higher rating for his service-connected PTSD and to service connection for a back condition, migraine headaches, and vertigo. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for a back condition, migraine headaches, and vertigo, and increased rating claim as to his service-connected PTSD. Increased rating for PTSD In this case, the Veteran contends that he is entitled to an evaluation in excess of 50 percent disabling for his serviced-connected PTSD. The Veteran was afforded a VA PTSD examination in December 2010. Review of treatment records reveals the Veteran's ongoing complaints of worsening anxiety, depression, sleep disturbance, nightmares, flashbacks, exaggerated startle response, hypervigilance, increased irritability, and possible hallucinations. On at least three occasions, the Veteran has been hospitalized due to symptoms related to his service-connected PTSD. When the evidence of record does not reflect the current state of the claimant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination is appropriate. VAOPGCPREC 11-95 (Apr. 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, a new examination is required. Service connection for a back condition, migraine headaches, and vertigo As a preliminary matter, the Board notes that service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in a current disability was incurred in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In analyzing the Veteran's claims on appeal, the Board notes that the Veteran has made numerous lay statements regarding an in-service injury and suggesting a possible link between that injury and his current conditions. Review of VA medical records shows that the Veteran reported that his transport vehicle was struck by an improvised explosive device (IED) in-service in 2007. As a result of the incident, the Veteran was knocked unconscious and subsequently received treatment for a concussion and persistent headaches. The Board notes that a search for the Veteran's service treatment records only yielded records related to the Veteran's induction and separation examination and his dental records. Nevertheless, post-service treatment records reveal numerous complaints of chronic back pain and migraine headaches. Oral pain medications were prescribed to threat the Veteran's pain. With respect to the claim for vertigo, the Board notes that Veteran contends that he suffered a concussion in service that resulted in the loss of consciousness. He also reported subsequent treatment for migraine headaches. In light of the foregoing, the claim of entitlement to service connection for vertigo is "inextricably intertwined" with the issue of entitlement to service connection for migraine headaches, and the disposition of the vertigo disability claim must therefore be deferred pending the resolution of the preliminary matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Under VA's duty to assist, a medical examination must be provided or a medical opinion obtained when necessary to decide a claim. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159 (c) (4). In this case, the Veteran contends that he suffered an in service injury and suggests a possible "nexus" between the injury and his current conditions, to include a back condition, migraine headaches, and vertigo. Therefore, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Schedule the Veteran for another VA examination with a psychologist or psychiatrist to evaluate the current severity of his service-connected PTSD. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the scheduled examination and the examination report must reflect that these items were reviewed. All indicated tests and studies are to be performed, and the examiner should fully describe all current symptomatology associated with the Veteran's service-connected psychiatric disability. The Veteran's lay assertions must also be fully discussed and considered. The examiner is also asked to describe in detail all functional impairment, including occupational impairment, resulting from the Veteran's service-connected psychiatric disability. The Veteran's lay assertions must again be considered and discussed when providing this information. If any opinion is offered, a complete rationale must be provided in support of this opinion. If any opinion cannot be offered without resort to mere speculation, the examiner should fully explain why this is the case and identify what, if any, additional information or evidence might allow for a more definitive opinion. 3. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the nature and etiology of his current back condition. The examiner must thoroughly review the claims file, including all medical evidence of record and lay statements. The examination report should also show consideration of the Veteran's documented medical history and assertions/complaints, to include the alleged in-service injury and any post-service falls or back injuries and their connection to the Veteran's current symptoms. All indicated studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. The examiner should provide an opinion as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's back condition is etiologically related to his active service, or had its onset during active service. In forming the opinion, the examiner must specifically address the Veteran's lay statements regarding the onset and continuity of his lumbar spine disability. The Veteran's report of symptomatology since military service should be fully considered and discussed when offering an opinion. A complete rationale for all opinions must be provided. If any opinion cannot be provided without resort to mere speculation, the examiner should fully explain why this is the case and identify what, if any, additional evidence or information would allow for a more definitive opinion. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his migraine headaches disorder, to include vertigo. All pertinent evidence of record must be made available to and reviewed by the examiner. A notation indicating this record review took place should be included in the examination report. Any indicated studies should be performed. After the record review, and examination if deemed necessary by the examiner, the VA examiner is asked to provide an opinion as to the following: (a) Is it at least as likely as not that the claimed headache disability is related to service? (b) Is it as at least as likely as not that the claimed vertigo disability is related to service, to include as due a headache disability. The Veteran's report of symptomatology since military service should be fully considered and discussed when offering an opinion. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. The examiner is also invited to specifically comment on the Veteran's assertion in his January 2011 VA Examination for PTSD, indicating that he was treated for a concussion and persistent headaches following a IED attack upon his transport vehicle in-service in 2007. 5. The RO or the AMC should undertake any other development it determines to be warranted. 6. Then, re-adjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for a response. After the Veteran is given an opportunity to respond, the case should be returned to the Board. 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). _________________________________________________ MICHAEL MARTIN 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).