Citation Nr: 1805585 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-18 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected right foot tendonitis. 2. Entitlement to service connection for a left hip disability, to include as secondary to service-connected right foot tendonitis. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for a low back disability, to include as secondary to service-connected right foot tendonitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to October 1994. This mater comes to the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In August 2015 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO. A hearing transcript is of record. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. A remand by the Board confers on the Veteran the right to compliance with the remand. Stegall v. West, 11 Vet. App. 2689 (1998). The Veteran contends that he is entitled to service connection for bilateral hip disabilities and a low back disability, as the claimed conditions are the result of service-connected tendonitis of the right foot. The Veteran also contends that he is entitled to service connection for migraine headaches, as the claimed condition began while in service and continued following separation from service. More specifically, the Veteran believes the headaches are the result of vaccinations he was made to receive on return from Somalia. During the August 2015 hearing, the Veteran testified that he experienced back problems while in service, but did not seek treatment for the back. The Veteran asserts that in 1994 immediately following service, his back condition worsened and he began receiving treatment. The Veteran also stated that his hips have become increasingly worse over the years as a result of his service-connected foot disability and the pain caused by that disability. Following service, he began receiving treatment from D.M., M.D. who informed him that his back condition and hip conditions were likely related to service. In a December 2014 medical letter, D.M., M.D. opined that the Veteran's back and hip discomfort is a degenerative condition that is likely related to his "foot condition - pes cavus." The examiner indicated that he had seen the Veteran for problems with the hips and back, and bilateral pes cavus. The Board finds that medical letter to be of little probative value, as a rational for the opinion was not provided. Furthermore, there is no indication that the examiner had access to the Veteran's claims file to review. Lastly, the examiner provided an opinion for whether the claimed disabilities were related to a foot condition pes cavus, when the Veteran is service-connected for tendonitis of the right foot. In a November 2013 VA back and hip examination, the examiner opined that the Veteran's low back disability and bilateral hip disabilities were not related to service or caused or aggravated by service-connected tendonitis of the right foot. The rationale provided was that the Veteran's feet x-rays were negative for any overt findings and that his back and hips were negative for any degenerative disc disease, degenerative joint disease, or arthritis. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the May 2017 VA examination is incomplete for adjudication. The Board notes that in an earlier portion of the examination the examiner noted a degenerative disc disease diagnosis of the back which conflicts with the portion of the rationale that states that the back was negative for any degenerative disc disease or degenerative joint disease. As a result, this examination is considered defective and a new examination is necessary. In regard to the claim for migraine headaches, in December 2014 the Veteran submitted a release form for medical provider information, but that the form only allowed the release of records from January 2013 through the present. In a December 2014 hearing before a decision review officer, the Veteran indicated that he began receiving private treatment for migraine headaches in 1995. Time should be allowed to clarify the Veteran's intentions about time frame for the release of records in order to properly obtain the records from the timeframe in which the Veteran asserts he received treatment. Clinical documentation dated after January 2015 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment for hypertension and a heart disability since January 2015, and prior to 2013, including the names and addresses of all health care providers whose records have not already been provided to VA. Also, clarify the Veteran's intent for release of information as it pertains to his claim for migraine headaches, and the time frame for which he is willing to allow access to private treatment records, which were only released from January 2013 to the present, but he stated at the hearing that he began receiving treatment in 1995 . Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record. If any identified records are not obtained, notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records not already of record pertaining to treatment of the Veteran, to include records after January 2015. 3. Schedule the Veteran for a VA examination conducted by the appropriate physician to determine the nature and etiology of any right and left hip disability. The examiner must review the claims file and note that review in the report. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should discuss the Veteran's lay statements regarding the history and continuity of symptomatology. The examiner should provide a complete rationale for all conclusions. The examiner should provide the following: (a) Opine whether it is at least as likely as not (50 percent probability or greater) that any right and left hip disability is related to active service. (b) Opine whether it is at least as likely as not (50 percent possibility or greater) that any right and left hip disability is caused by, due to, or the result of service-connected right foot tendonitis. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any right hip disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by service-connected right foot tendonitis. (d) If the examiner determines that the right and left hip disabilities are not the result of active service or cause or aggravated by the right foot tendonitis, and another etiology can be determined, the examiner should provide an opinion as to what likely caused the right and left hip disabilities, taking into account the Veteran's full post-service work and medical history. 4. Schedule the Veteran for a VA examination conducted by the appropriate physician to determine the nature and etiology of any low back disability. The examiner must review the claims file and note that review in the report. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should discuss the Veteran's lay statements regarding the history and continuity of symptomatology. The examiner should provide a complete rationale for all conclusions. The examiner should provide the following: (a) An opinion as to whether it is at least as likely as not (50 percent probability or greater) that any low back disability is related to active service; (b) An opinion as to whether it is at least as likely as not (50 percent possibility or greater) that any low back disability is caused by, due to, or the result of service-connected tendonitis, right foot; and (c) An opinion as to whether it is at least as likely as not (50 percent probability or greater) that any low back disability has been aggravated (increased in severity beyond the natural progress of the disorder) by service-connected tendonitis, right foot. (d) If the examiner determines that the low back disability is not the result of active service, and another etiology can be determined, the examiner should provide an opinion as to what likely caused the low back disability, taking into account the Veteran's full post-service work and medical history. 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).