Citation Nr: 1808738 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 12-05 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to an initial increased rating for paravertebral lumbar myositis, rated 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from January 1971 to December 1972. These matters come to the Board of Veterans' Appeals (Board) from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in April 2010, a statement of the case was issued in February 2012, and a substantive appeal was received in March 2012. The statement of the case also included the issue of service connection for sinusitis. Subsequently, a February 2017 rating decision granted service connection for allergic rhinitis and sinusitis The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Headaches A February 2010 VA examination reflects a diagnosis of tension-type headache. The examiner opined that his headaches were not due to complaints of headaches in service. Specifically, the examiner stated that there is evidence that the Veteran's headaches were pre-existing as they were denoted in the pre-induction examination. See 10/01/1973 STR-Medical at 7; see also 01/22/2018 Translation Related at 57-58, 107-108. The VA examiner noted that the headaches the Veteran complained of during active service were on most occasions associated to a diagnosis of sinusitis. There was no further evidence of complaints of headaches for 28 years since active service to the mention of the condition in 2000, with neurology visit notes all silent for complaints of headaches. The Board notes that the pre-induction report of medical history notes that the Veteran replied yes to strong or frequent headaches. There comments in the physician's description section were deemed illegible by the translation service. However, the Veteran's pre-induction report of medical examination reflects a normal evaluation. The first question in this regard is whether a headache disorder was "noted" on entry into service. See 38 U.S.C.A. § 1111; Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012) ("before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service"). The term "noted," in 38 U.S.C.A. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). As noted above, the pre-induction examination report reflects a normal clinical examination. Additionally, the report of medical examination reflects that there is nothing written in the summary of defects and diagnoses section and that all of the Veteran's physical profile categories were marked as "1." Given that there is nothing written in the summary of defects and diagnoses section of the examination report and the normal findings on the clinical examination report, the Board finds that a headache disorder was not noted at entry and the notes on the medical history report are more akin to the history of preservice existence of conditions recorded at the time of examination that do not constitute a "noted" defect, infirmity, or disorder under 38 C.F.R. § 3.304(b). When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been in sound condition. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness has therefore attached in this case and can only be rebutted by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Id. The Veteran also asserts that he has a separate and distinct disability of headaches due to or aggravated by his service-connected sinusitis, maxillary, and allergic rhinitis. At the time the February 2010 VA opinion was proffered, service connection had not been established for sinusitis and allergic rhinitis. As noted above, the Veteran has been granted service connection for these two disabilities. In light of the diagnosis, the establishment of service connection, the suggestion by the VA examiner that his in-service complaints of headaches related to sinusitis, and the lay assertions of the Veteran, the Board finds that a medical opinion is necessary for adjudication. Lumbar spine disability In Correia v. McDonald, 28 Vet. App. 158 (2016), it was held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Such is necessary especially in light of the fact that the Veteran has complained of difficulty with prolonged weight bearing pertaining to the spine. 09/01/2016 C&P Exam at 2. The examination provided on remand should comply with the requirements of Correia to the fullest extent possible. Moreover, it is requested that the examiner describe the extent of additional limitation of motion due to flare-ups. The September 2016 VA examiner acknowledged the Veteran's reports of flare-ups with pain but the examiner was unable to describe in terms of range of motion, noting that this would be speculative. Id. at 3. In this regard, the Board calls attention to Sharp v. Shulkin, 29 Vet. App. 26 (2017), which essentially holds that the lack of opportunity to observe a flare-up is an insufficient basis for not estimating its functional effects. In light of this, the examiner should be asked to provide further comment on additional limitation of motion due to flare-ups. Finally, the Board acknowledges that in January 2017 the Veteran underwent total diskectomy with anterior arthrodesis of L3-4 and L4-5. 02/23/2017 Medical Treatment Record-Non-Government Facility. Thus, the examination should assess the severity of his lumbar spine disability following this surgery. On remand, associate updated VA treatment records for the period from February 3, 2017. Accordingly, the case is REMANDED for the following actions: 1. Associate with the virtual folder updated VA treatment records for the period from February 3, 2017. 2. AFTER all outstanding treatment records have been associated with the claims folder, schedule the Veteran for a VA examination with a physician with appropriate expertise to assess the nature and etiology of his claimed headaches. It is imperative that the examiner review the Virtual folder. All clinical and special test findings should be clearly reported, and pertinent findings should be reported. a) Did a headache disability clearly and unmistakably pre-exist the Veteran's entrance to active duty service in January 1971? b) If so, is there clear and unmistakable evidence that the pre-existing headache disorder was NOT aggravated by his active service? c) If the answer to a) or b) is no, then it at least as likely as not that the Veteran's current headaches are related to or began in his active duty service? d) If the answer to a-c above is in the negative, then is a current chronic headache disability at least as likely as not (50 percent or greater probability) caused by service-connected sinusitis, maxillary, and allergic rhinitis? 3) Indicate whether it is at least as likely as not (50 percent or greater probability) that a chronic headache disability has been aggravated by service-connected service-connected sinusitis, maxillary, and allergic rhinitis. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of her observable symptoms over time. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of his lumbar spine disability. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the spine should include range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. 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. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. Gather information from the Veteran and/or the claims file in providing this statement. (The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation.) The examiner should also describe all neurologic manifestations, to include, but not limited to bowel or bladder impairment. The examiner should also provide an opinion concerning how the lumbar spine disability affects his occupational functioning and daily activities. The examiner should describe the types of limitations he would experience as a result of his lumbar spine disability. 4. After completion of the above, review the relevant evidence of record and readjudicate the service connection and increased rating issues. If the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).