Citation Nr: 18152935 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-23 269 DATE: November 26, 2018 ORDER Entitlement to service connection for migraine headaches is denied. REMANDED Entitlement to an evaluation in excess of 40 percent disabling for degenerative arthritis of the lumbar spine, L4-L5 (claimed as low back pain) is remanded. Entitlement to service connection for radiculopathy, left lower extremity is remanded. Entitlement to service connection radiculopathy, right lower extremity is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder, depressive disorder, adjustment disorder, and post-traumatic stress disorder (PTSD) is remanded. Entitlement to an evaluation in excess of 50 percent disabling for opioid dependence is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s migraine headaches began during active service, or is otherwise causally related to active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for migraine headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from May 2007 to April 2008. As a preliminary matter, the Board notes that the Veteran filed separate claims for service connection for an adjustment disorder, depressive disorder, anxiety, and PTSD. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. In compliance with Clemons, the Board considers the Veteran’s claims of entitlement to service connection for an adjustment disorder, depressive disorder, anxiety, and PTSD as encompassing a single claim of entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder, depressive disorder, anxiety, and PTSD. The issue has been restated accordingly on the first page. 1. Entitlement to service connection for migraine headaches The Veteran contends that he suffers from migraine headaches and asserts that his condition was caused by or otherwise related to active service. On review of the record, the Board recognizes that the Veteran has a diagnosis of migraine headaches however, the preponderance of the evidence is against finding that that condition had its onset in, or is otherwise related to active service, to include an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2014); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d) (2018). Service treatment records are silent for complaints of symptoms, treatment, or a diagnosis of migraine headaches in service. In multiple reports of medical history, dated December 2005 and January 2006, the Veteran indicated negative responses to inquiries regarding frequent or severe headaches. In a health record, dated September 2007, the Veteran denied any experience with headaches. Although the Veteran indicated a favorable response to an inquiry regarding frequent headaches in a January 2007 report of medical history, no symptoms were noted in a report of medical examination at separation in November 2008. Post service treatment records show minimal complaints of migraine headaches. In an emergency department note, dated September 2012, the Veteran complained of migraine headaches and suggested that his pain was related to a cracked tooth. He reported toothache related pain over the prior 3-month period. Following the physical examination, the Veteran was prescribed Imitrex to treat his headache pain. In the same month, a reference to frequent migraine headaches over the prior ten-year period was noted. In December 2013, the Veteran denied any experience with chronic headaches. There is no evidence of any additional treatment for migraine headaches. The Board recognizes that the Veteran has not been afforded a VA examination. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and the veteran’s service. In this case, there is no evidence of actual treatment for migraine headaches in service. While the Veteran’s casual reference to frequent headaches in a January 2008 report of medical history is acknowledged, the medical evidence fails to show any possible connection to remote complaints of headaches more than 4 years later. Further, according to the Veteran’s own lay statement in September 2012, his symptoms likely related to a chipped tooth which caused pain over the prior 3-month period. Chronic symptomology was specifically denied one year later, in December 2013 treatment record. Under the circumstances, the Board finds that a medical examination would serve no useful purpose in this case, since the requirement of an in-service injury or disease to establish a service connection claim cannot be met upon additional examination. Therefore, the Veteran has not been prejudiced by the lack of VA examination. The Board recognizes the Veteran’s competence to report on his current symptoms and their onset. However, there is no evidence that he possesses the specialized skills and expertise necessary to render complex medical opinions or opine as nature and etiology of his current symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. Further, mere conclusory or generalized lay assertions that an in- service event or illness caused a current disability are insufficient to establish nexus in the absence of competent medical evidence. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Although the Board acknowledges that the Veteran’s subjective belief that his migraine headaches are related to active service, the evidence of record does not support his contentions. Further, even if the Board where to assume the veracity of the Veteran’s contentions, service treatment records are silent for symptoms, treatment, or a diagnosis of migraine headaches. Accordingly, the Board finds that the preponderance of the evidence weighs against finding a nexus between the Veteran’s complaints of migraines and active service. Thus, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The Veteran’s claims of entitlement to service connection for migraine headaches must be denied. REASONS FOR REMAND Regrettably, 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 claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2018). 2. The issues of entitlement to an evaluation in excess of 40 percent disabling for degenerative arthritis of the lumbar spine, L4-L5 (claimed as low back pain); entitlement to service connection for radiculopathy, left lower extremity; and entitlement to service connection radiculopathy, right lower extremity are remanded. The Veteran contends that the current severity of his service-connected lumbar spine condition is worse that currently evaluated. He also asserts that he suffers from radiculopathy of the right and left lower extremity and that the conditions were caused by or otherwise related to his service-connected lumbar spine condition. Review of the record indicates that the Veteran’s service-connected lumbar spine condition was last evaluated in November 2013. At that time, electrodiagnostic testing was negative for any evidence of radiculopathy. However, in a rehabilitation outpatient consultation, dated November 2013, the Veteran complained of worsening lumbar spine pain with intermittent radiating pain down the thighs and into the knees. He described the onset of his condition as June 2007 during pre-mobilization training. The Veteran states that he rotated his back while walking wearing with full gear. An acute onset of back pain with leg weakness was reported. According to the Veteran, he was unable to walk for several hours without pain. He was placed on bed rest for 1 week. Initially, the Veteran acknowledged some improvement is his pain however, his symptoms have steadily increased overtime. The pain is reportedly aggravated by inactivity as well as over-exertion. He states that his legs shake when walking down stairs. A June 2014 Emergency Department record shows complaints of low back pain and radiating pain through the buttocks and into the thighs. The Veteran reported a prior diagnosis of a herniated disc and sciatica. He described pain as a 9 on a 10-point scale. No neurological symptoms were reported on physical examination. The Board recognizes that the Veteran is generally competent to report on his current symptoms and their worsening. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Where there is evidence that the condition has worsened since the last examination, a veteran is entitled to a new VA examination. Snzy’fer v. Gober, 10 Vet. App. 400 (1997). Further, as the Board’s consideration of the Veteran’s claim for service connection for left and right lower extremity radiculopathy depends upon its determination on the Veteran’s claim for an increased rating for his service-connected lumbar spine condition, the claims are deemed inextricably intertwined. Accordingly, adjudication of the service connection claims is deferred until further development of the inextricably intertwined issue is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). 3. Entitlement to service connection for an acquired psychiatric disorder, to include a generalized anxiety disorder, depressive disorder, and post-traumatic stress disorder (PTSD) is remanded. 4. Entitlement to an increased rating for opioid dependence. The Veteran contends that the he suffers from an acquired psychiatric condition and that his symptoms are causally related to active service. Service treatment records show that the Veteran complained of psychiatric symptoms in service. In November 2011, the Veteran reported stress and anxiety related to chronic low back pain and medications prescribed to treat his symptoms. He acknowledged concern regarding his ability to perform his assigned duties due to chronic pain. The Veteran also reported sleep impairment and frequent panic attacks. Valium was prescribed to treat his symptoms. An outpatient clinic record, dated that same month, shows a diagnosis of an adjustment disorder with mixed emotional features. Post service treatment records show that the Veteran was diagnosed with a depressive disorder in October 2012. A psychology outpatient record, dated April 2018, referenced a diagnosis of a generalized anxiety disorder. The record is silent for a diagnosis of PSTD. As the evidence “indicates” a possible nexus between the Veteran’s current generalized anxiety disorder and active service, the Board finds that a VA examination is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2018). Given that the matter of service connection for several psychiatric disorders is being remanded, the Board finds that the claim for an increased rating for opioid dependence is inextricably intertwined, and must be remanded as well. The matters are REMANDED for the following action: 1. Obtain updated treatment records and associate them with the claims file. Attention should be given to the Veteran’s complaints of worsening low back and low extremity pain, to include radiating pain from the low back through the buttocks and into the leg, knee, and ankle. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should comment on the Veteran’s complaints of radicular symptoms in the buttocks, left and right lower extremity. All necessary diagnostic testing and evaluations must be conducted. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lumbar spine disability and discuss the impact his occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must discuss and explain the rationale for the conclusion reached. If any opinion cannot be provided without resort to mere speculation, the examiner must fully explain why this is the case and identify what (if any) additional evidence would allow for a more definitive opinion. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disorder noted during the pendency of the appeal. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner is requested to respond to the following: (a) Please identify all acquired psychiatric disorders found to be present during the pendency of the appeal, based on examination of the Veteran and review of all lay and medical evidence of record. Attention should be given to all lay statements of record. (b) As to any acquired psychiatric disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (probability of 50 percent or more) that the diagnosed acquired psychiatric disorders had their onset during or were otherwise caused or aggravated by service. The examiner is also requested to opine as to whether the Veteran’s psychiatric symptoms are secondarily related to his service-connected low back condition. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record, and nexus opinions and explain or distinguish any variations in findings and conclusions. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel