Citation Nr: 1808003 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-24 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for a neck disability. 3. Entitlement to a rating in excess of 20 percent for status post-surgical repair of right acromioclavicular joint separation. 4. Entitlement to an initial compensable rating for a right shoulder scar, as secondary to service-connected status post-surgical repair of right acromioclavicular joint separation. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Asante, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1966 to October 1968, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a head injury and a neck disability, and granted service connection for a right shoulder scar with a noncompensable rating, effective August 13, 2009. This decision also granted an increased rating of 10 percent for status post-surgical repair of right acromioclavicular joint separation, effective August 13, 2010. In a December 2016 rating decision, the rating for status post-surgical repair of right acromioclavicular joint separation was increased to 20 percent, effective August 13, 2010. The Veteran's claim for a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In April 2017, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Service Connection Claims The Veteran asserts that he sustained injuries to his head and neck during service, as a result of a motor vehicle accident. He reports that in the accident, he was thrown from a truck, landed on his head, neck, and shoulder, and was knocked unconscious. He maintains that he has experienced head and neck pain, and severe headaches since service as a result of his injuries. See September 2010 Veteran Statement in Support of Claim, March 2011 Notice of Disagreement (NOD), and April 2017 Board Hearing Transcript at 18, 28, 34. The Veteran's service treatment records (STRs) show he was involved in a truck accident and was treated for a shoulder injury. The Veteran's mother has provided a lay statement indicating that she received a letter sometime in 1967 which noted the Veteran was in an accident and had injured his head, neck, and shoulder. See August 1967 STR and June 2017 Buddy Statement. The Veteran has not been afforded a VA examination for his claimed neck and head disabilities. At a VA examination for his shoulder in October 2010, a VA examiner commented that the Veteran's minimal to moderate degenerative changes demonstrated at C4-5, C5-6, and C6-7 of the cervical spine, are age-related changes and not due to service. She did not provide any rationale for this opinion and it does not reflect consideration of the Veteran's competent report of continued neck pain after service. Given the documented motor vehicle accident in the Veteran's STRs, the lay statement from his mother, and the Veteran's credible reports of continuous head and neck pain since service; a VA examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Increased Rating Claims Regarding the Veteran's service-connected right shoulder disability, the Veteran testified that his disability has worsened since his last VA examination in October 2010. See April 2017 Board Hearing Transcript at 6, 11. An updated VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Regarding the Veteran's service-connected right scar disability, he has testified that his scar is painful, tender to touch. He also reported that a few times the holes in the scar where stitches were placed became infected. See April 2017 Board Hearing Transcript at 14-15. These statements suggest a worsening of this disability. An examination is needed to address the current severity of the Veteran's right shoulder scar. See Snuffer, 10 Vet. App. 400. Any outstanding private treatment records should be secured on remand. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed head and neck disabilities. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The examiner should elicit a complete history from the Veteran. All indicated tests and studies should be conducted, and all findings reported in detail. a) The examiner should identify all head and neck disabilities found on examination and noted in the claims file since the claim was filed in August 2010. b) For all diagnoses present, to include the noted degenerative changes of the cervical spine, the examiner is to opine as to whether it is at least as likely as not (50 percent or greater probability) that such disabilities had onset in service or are otherwise related to service, to specifically include as a result of the 1967 motor vehicle accident. c) The examiner is also to opine as to whether it is at least as likely as not that any current head or neck disability is either i) proximately due to the Veteran's service-connected right shoulder disability; or (ii) has been aggravated (chronically worsened) by his service-connected right shoulder disability. The examiner should note that this question requires two opinions: one for proximate causation and another for aggravation. The term "aggravation" means a chronic worsening of a disability beyond its natural progression. If aggravation is found, then, to the extent possible, the examiner should attempt to establish a baseline level of severity of the head and or neck disorder(s) prior to aggravation by the right shoulder disability. A complete rationale must be provided for all opinions expressed. The examiner is further advised that the opinion and rationale must reflect consideration of the Veteran's competent and credible account of neck pain, head pain (including headaches) since service. If the examiner is unable to provide the requested opinions, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his right acromioclavicular joint separation and right shoulder scar disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. a) With respect to the right acromioclavicular joint separation, the examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with range of motion of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's right shoulder due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. c) The examiner should determine whether there is any neurologic impairment associated with the right shoulder acromioclavicular joint separation. The examiner is advised that the Veteran reports symptoms of tingling in his elbow and hand, and numbness in his fingers. d) The examiner should also fully describe the impact of these two disabilities on his daily and occupational functioning. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. If any of the benefits sought remain denied, furnish the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before returning the case to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (2012). _________________________________________________ D. JOHNSON 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).