Citation Nr: 1806394 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-02 310A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased initial evaluation for degenerative joint disease, right shoulder with instability, evaluated as 10 percent disabling prior to February 19, 2010 and 20 percent thereafter. 2. Entitlement to an increased initial evaluation for degenerative joint disease, left shoulder with impingement syndrome, evaluated as 10 percent disabling prior to February 19, 2010 and 20 percent thereafter. 3. Entitlement to an increased initial evaluation for residuals of left ankle sprain, evaluated as noncompensable prior to February 19, 2010 and 10 percent disabling thereafter. 4. Entitlement to an initial compensable evaluation for gastroesophageal reflux disease. 5. Entitlement to service connection for migraine headaches. 6. Entitlement to service connection for bronchitis. 7. Entitlement to service connection for sinusitis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran and his spouse testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for migraine headaches, bronchitis, and sinusitis. He is also seeking increased evaluations for his bilateral shoulder disabilities, left ankle disability, and gastroesophageal reflux disease (GERD). At his hearing before the Board, the Veteran reported receiving ongoing treatment for the disabilities at issue herein. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). With respect to the claim for service connection for migraine headaches, the Board notes the evidence raises the question of whether a headache condition existed prior to service. Thus, an additional examination and opinion would assist in addressing the claim. The Board finds that additional examinations and opinions would also assist in addressing the claims for service connection for bronchitis and sinusitis. In February 2010, a VA examiner opined that the Veteran's current migraine headaches were less likely as not related to his military service. In support of this opinion, the VA examiner cited the Veteran's preservice history of having headaches as a 13 year old, effectively negating the Veteran's presumption on soundness upon entry into service. Under these circumstances, the Board finds that a new medical opinion is required addressing the etiology of the Veteran's current migraine headaches. At his hearing before the Board, the Veteran testified that his service-connected bilateral shoulder disabilities, left ankle disability, and GERD had worsened. Specifically, he reported increased pain and a reduced range of motion in his bilateral shoulder and left ankle. He also reported having increased incidents of heart burn and regurgitation as a result of his GERD. Under these circumstances, current examinations are warranted. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his headaches, bronchitis, sinusitis, bilateral shoulder disabilities, left ankle disability, and GERD during the course of this appeal. After securing any necessary releases, the AOJ should request any relevant records identified, including any updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above has been completed to the extent possible and any additional records received have been associated with the claims file, schedule the Veteran for a headache examination to determine whether the headache disorder noted during the course of the claim is related to his military service. The claims file must be reviewed in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner should respond to the following: a. Please identify the type of headaches (other than sinus headaches) the Veteran suffered from during the course of the appeal (e.g., migraine, tension, vascular, etc.). b. Are the current type(s) of headache(s) etiologically related to or a maturation of the headaches noted in service (July 1990, July 1992, May 1993, November 1993, December 1993, February 1994), to include the diagnosed tension and vascular headaches noted on February 18 and 25, 1992? Please explain why or why not. c. If the examiner finds a current headache disorder is related to the in-service headache complaints, the examiner should provide an opinion as to whether it is undebatable that the Veteran's headache disorder existed prior to his service. The examiner should provide a rationale for the opinion. d. If the current headache disorder is found to have clearly existed prior to service, the examiner should provide an opinion as to whether the condition underwent a permanent worsening during service and if so, whether that worsening was clearly the result of the natural progression of the condition versus being due to events during service. The examiner should provide a rationale for the opinion. 3. Schedule the Veteran for a respiratory examination to determine whether he suffers from a bronchitis disorder that is related to service. The claims file must be reviewed in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Based on the clinical examination, a review of the evidence of record, including his in-service treatment for bronchitis and his March 2010 chest x-ray showing a few healed granulomas, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a bronchitis condition that is related to or a maturation of the bronchitis and respiratory infections noted during his military service. The examiner should explain why or why not. 4. Schedule the Veteran for a sinus examination to determine whether the Veteran's sinus disability is related to service. The claims file must be reviewed in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sinus condition, to include the findings of possible mucoperiosteal thickening pattern in the maxillary sinus on July 2011 VA examination x-ray, is related to or a continuation of the in-service upper respiratory conditions and sinusitis. A complete rationale for all opinions must be provided. 5. Schedule the Veteran for a shoulder examination to determine the current severity of his bilateral shoulder disabilities. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. 6. Schedule the Veteran for an ankle examination to determine the current severity of his service-connected residuals of left ankle sprain. The claims file should be reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests should be accomplished. All pertinent symptomatology and findings must be reported in detail. 7. Schedule the Veteran for an esophageal examination to determine the current severity of his service-connected GERD. The claims file should be reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests should be accomplished. All pertinent symptomatology and findings must be reported in detail. 8. After undertaking the development above and any additional development deemed necessary, the Veteran's claims should be readjudicated. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the 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 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).