Citation Nr: 1807168 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-09 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to higher ratings for migraine headaches, rated 30 percent prior to February 10, 2014, and 50 percent from that date. 2. Entitlement to higher ratings for bilateral pes planus, rated 30 percent prior to April 17, 2014, and 50 percent from that date. 3. Entitlement to service connection for neck disability. 4. Entitlement to service connection for low back disability. 5. Entitlement to service connection for bilateral shoulder disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony during a Board videoconference hearing in February 2017, and a transcript of the hearing is associated with her claims folder. At the hearing, the record was held open for an additional 60 days to permit the Veteran an opportunity to obtain and submit additional evidence, specifically nexus evidence. Additional evidence was received on appeal, and since her VA Form 9 was received after February 2, 2013, the law permits this evidence to be considered by the Board in the first instance. While the Veteran did not perfect the issue of entitlement to additional compensation for pes planus in her March 2014 VA Form 9, the RO issued a supplemental statement of the case on it in March 2016, and so the Board finds that it has jurisdiction over this matter. The issues of service connection for low back and bilateral shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At her February 2017 Board hearing before the undersigned Veterans Law Judge, the Veteran testified that she wanted to withdraw her appeals for additional compensation for migraine headaches and pes planus. 2. The Veteran's current mild degenerative cervical disc disease and whiplash injury of the neck were not manifest in service and are unrelated to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for additional compensation for migraine headaches and pes planus are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for service connection for neck disability are not met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Additional compensation for migraine headaches and bilateral pes planus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran made a knowing withdrawal of her appeals concerning additional compensation for migraine headaches and pes planus during her February 2017 hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration concerning these issues. Accordingly, the Board does not have jurisdiction to review those appeals and the appeals are dismissed. Neck service connection claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Based on the evidence, the Board finds that service connection is not warranted for neck disability. The preponderance of the evidence, including the February 2010 VA examination report, shows that the Veteran currently has mild degenerative cervical disc disease. However, the preponderance of the evidence also shows that this was not manifest in service and is unrelated to service. While the Veteran had a head injury in service in December 1975, and again in November 1976, and was treated for a concussion each time, the service treatment records do not mention a neck injury. Furthermore, she denied having or having had neck trouble and was normal on service discharge examinations in August 1978 and June 1981, and she did not report neck problems at the time of a later VA neurology examination for headaches in April 2004, when she reported that she had hit her head in service in December 1975, and again in 1976. Additionally, in July 2004, she was seen at a VA clinic to establish contact, and made no mention of neck problems. There is no documented neck injury in service and a VA examiner who considered the matter in February 2010 noted that the claims folder does not document complaints of neck pain with the initial head injury in 1975. The examiner noted records showing that in subsequent follow-up notes and at the time of physical examinations in August 1978 and/or June 1981, the Veteran denied neck complaints and stated that she was in good health. The examiner concluded, based on the evidence, that the Veteran's mild degenerative cervical disc disease is less likely than not caused by injuries sustained in service, noting that the onset of the neck pain was post-discharge and that there was a history of interim neck injuries subsequent to falls. A recent whiplash injury to the neck was shown was reported in June 2010. It and cervical disc disease were first shown many years after service, and there is no reliable competent evidence relating either to service. The Veteran indicated in March 2014 that in this case, trauma to her neck and her diagnosis of cervical disc disease are conceded. She reported that she did have treatment for her neck within a year of separation, but medical records for that treatment were not available, and that in any event, it is not unusual for significant symptoms of cervical disc disease to take several years to manifest themselves. She stated that the in-service trauma was the only neck trauma that she had when the problems began to develop. To the extent the Veteran is arguing that she sustained in-service neck trauma, the Board finds such statements lack credibility as they are inconsistent with the contemporaneous STRs wherein she denied neck complaints. Accordingly, the Board finds that the no in-service neck trauma is shown. Neck problems were not complained of or treated in service, including when she had concussions, the Veteran's neck was normal on service discharge examination, and she failed to report any neck problems at the time of a VA neurology examination for headaches, tending to negate an in-service neck injury. Even if she did have treatment within 1 year of service discharge, there is no indication that it was for her current cervical disc disease or that if it was, that it is related to service. Furthermore, she is not competent to indicate how long it takes cervical disease to manifest itself or when hers was manifest. Medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board regrets that the benefit sought above cannot be granted, and would like to thank the Veteran for her 3 years of honorable service. ORDER The appeals for higher ratings for migraine headaches and pes planus are dismissed. Service connection for neck disability is denied. REMAND The Veteran appeals for service connection for bilateral shoulder and low back disability. Service treatment records show complaints of low back pain in October 1975. No in-service treatment for shoulder problems is claimed or shown. On service examinations shortly before discharge in August 1978, and/or again in June 1981, she denied having or having had shoulder trouble and stated that she was in good health, and her low back and shoulders were clinically normal. Post-service in July 2000, she was seen for resolving low back pain. It had come on 10 days before, when she was lifting a tub of mail. A November 2000 private medical record indicates that she was a letter carrier at the time, for the United States Postal Service. At the time of a VA neurology examination for headaches in April 2004, she reported that she had hit her head in service in December 1975, and again in 1976, without reporting that she sustained a low back or shoulder injury at the time. Her gait was normal. In July 2004, she was seen at a VA clinic to establish contact. She was obese and no mention was made of low back or shoulder problems. In August 2004, she was seen for progressive left shoulder pain and reduced range of motion over the last year. She used to carry mail over her left shoulder, but not for the past 3 years. She had had intermittent shoulder pain when she worked. She had hit her shoulder on a wall 2 days before treatment. The assessment was chronic left shoulder pain and partial frozen shoulder. Left shoulder X-rays were read as having no bone related abnormality. In November 2004, she was seen for complaints of right shoulder pain which she stated began 5 or 6 months prior. In September 2009, she stated that she injured her low back in basic training after she was ordered to pick up and carry another person's equipment. While doing this, she tripped and injured her back. She stated that she has neck pain now which is a result of that service fall. In March 2014, the Veteran stated that she was a member of 54th MP company and, until her transfer to records due to her pregnancy, she was a cook at the stockade. In that position, she was required to unload food from the delivery trucks lifting very heavy boxes. Additionally, there was a large population to feed (prisoners, guards, and staff), and she worked with extremely large pots of food, and moving them required heavy lifting. Often this lifting exceeded 50 pounds. In February 2017, the Veteran testified to the effect that her current shoulder and low back problems could be connected to the fall that she had in basic training due to her head. Based on the evidence, the Board concludes that a VA examination is necessary for the Veteran's low back disability claim. Dr. Roberts reported in February 2011 that the Veteran engaged in heavy lifting and physical training in service, and has spinal arthropathy, and that service events likely contributed to her present joint difficulty. The Board notes that service treatment records show that the Veteran complained of low back pain in service in October 1975 and that she was also reported to have a normal spine on service examination in August 1978. It is unclear whether Dr. Roberts was referring to spinal arthropathy in the Veteran's low back in her February 2011 letter, and it is also unclear what records, if any, Dr. Roberts considered and relied on in making her opinions, and she did not explain her opinions clearly or in detail in light of the evidence, as concerns the Veteran's low back disability claim. However, the Board finds that the evidence of record is sufficient to require a VA examination pursuant to 38 C.F.R. § 3.159 (2016), as indicated below. Based on the evidence, the Board also concludes that a VA examination is necessary for the Veteran's bilateral shoulder disability claim. Service treatment records are silent for reference to shoulder problems. However, in February 2011, Dr. Roberts mentioned that the Veteran has severe osteoarthritis and reported that the Veteran engaged in heavy lifting and physical training in service. Dr. Roberts stated that these events likely as not contributed to the Veteran's present joint difficulty. It is unclear whether Dr. Roberts was referring to shoulder osteoarthritis. It is also unclear what records, if any, Dr. Roberts considered and relied on in making her opinion, and she did not explain her opinion clearly or in detail in light of the evidence, as concerns the Veteran's bilateral shoulder claim. However, the Board finds that the evidence of record is sufficient to require a VA examination pursuant to 38 C.F.R. § 3.159, as indicated below. Before the VA examinations, development will take place to obtain any additional available relevant medical records. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any additional available relevant medical records. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any currently diagnosed low back disability. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed low back disorder is related to service? Please consider and discuss as necessary the Veteran's complaint of low back pain in service and her statements indicating she performed heavy lifting exceeded 50 pounds (i.e., unloading food from food delivery trucks lifting very heavy boxes and working with extremely large pots of food) and physical training in service. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the action in paragraph 1, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any currently diagnosed right or left shoulder disability. All testing deemed necessary by the examiner should be performed and the results reported in detail. The claims folder must be available for review by the examiner in conjunction with the examination. Based on the examination and review of the record, the examiner should address the following: Is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed right or left shoulder disorder is related to service? Please consider and discuss as necessary the Veteran's statements indicating she performed heavy lifting exceeded 50 pounds (i.e., unloading food from food delivery trucks lifting very heavy boxes and working with extremely large pots of food) and physical training in service. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs