Citation Nr: 19183539 Decision Date: 11/05/19 Archive Date: 11/05/19 DOCKET NO. 16-24 624 DATE: November 5, 2019 ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for cervicalgia (claimed as neck pain). 3. Entitlement to service connection for headaches, to include as due to neck pain. ORDER Entitlement to service connection for bilateral hearing loss disability is dismissed. REMANDED Entitlement to service connection for cervicalgia (claimed as neck pain) is remanded. Entitlement to service connection for headaches, to include as due to neck pain is remanded. FINDING OF FACT In a December 2016 signed statement, prior to the promulgation of a decision in the appeal, the Veteran agreed, through her authorized Representative to withdraw the issue of entitlement to service connection for bilateral hearing loss disability. CONCLUSION OF LAW The criteria for the withdrawal of entitlement to service connection for bilateral hearing loss disability have been met. 38 U.S.C. § § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from April 2007 to July 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Board notes that when a Veteran makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the issue of entitlement to service connection headaches as entitlement to service connection for headaches, to include as due to neck pain. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). Entitlement to service connection for bilateral hearing loss disability. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 her authorized representative. 38 C.F.R. § 20.204. The Veteran’s authorized Representative submitted a statement in December 2016. The statement identifies the issues on appeal, including entitlement to service connection for bilateral hearing loss. The statement notes that “after discussion with Veteran concerning the issue on hearing loss; she has indicated her intent to withdraw, as she will be afforded the option to re-open when or if her hearing meets the required standard for service connection.” The statement is signed by the Veteran’s authorized representative. As such, the issue of entitlement to service connection for bilateral hearing loss is considered withdrawn. Accordingly, the Board no longer has jurisdiction to review the appeal, and this issue is dismissed. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for cervicalgia (claimed as neck pain) is remanded. The Veteran is claiming that her cervicalgia (also claimed as neck pain), is due to her active duty service. To establish a claim for entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). The Veteran submitted a statement attached to her Form 9 in May 2016. The statement reads that her neck pain was related to an incident in deployment training, whereby she was in the position as a heavy gunner on my four person Humvee team. It was during a training exercise that while navigating rough terrain, the turret hatch slammed down on my head and neck. I was wearing all required gear … I had no outward observable bleeding or injury, and due to being in deployment training did not seek medical treatment. She indicates that the “neck pain was initially mainly noticed with headaches, which would connect these two health/medical issues to one another.” The Veteran’s Representative submitted a statement from December 2016. The statement reiterates the events as told by the Veteran in her May 2016 Form 9. The Representative’s December 2016 statement further indicates that the Veteran’s service treatment records include complaints of neck pain, and that she is thus entitled to service connection. The Board recognizes that the Veteran’s service treatment records include frequent examples of complaints of neck pain made while in service. An emergency care record from July 2009 notes that the Veteran was seen for neck pain and was sent home to rest. A follow up visit the next day stated the problem was “chronic neck pain [for the past] two months.” It also indicates that she was given pain killers at the time. A record from August 2009 indicates that the neck pain had not subsided and was increasingly associated with headaches. The Veteran was seen for a medical consultation for her neck pain in August 2011. The Veteran complained that the neck pain was “radiating into left shoulder and left arm.” An MRI was ordered, which returned normal results, other than a “reversal of the normal lordotic curvature with slight kyphosis of the upper and mid cervical spine.” A further treatment record from June 2012 notes that she has experienced frequent headaches, which “start in the front and radiate to her neck.” During that same evaluation, she complained of neck pain and strain, however at the time, the “neck x-ray was normal.” An outpatient nursing note from December 2012 gives the Veteran an assessment of “neck pain,” and she was prescribed pain killers. An addendum opinion after that nursing note from January 2013 writes that she may have “a pinched nerve in the neck.” During a medical exam eight months later in September 2013, she again complained of “aching” neck pain, with approximate intensity at 6/10. The most thorough examination however occurred in July 2010, whereby, the Veteran was given an examination for various musculoskeletal problems, one of which was her claimed neck pain. During the examination, the Veteran was diagnosed with episodic cervicalgia, for her “chronic neck pain without radicular symptoms.” While the problem was described and a diagnosis was found, no etiological opinion was rendered. Therefore, the Board finds that the Veteran has a current diagnosis of neck pain. Although the specific episode that the Veteran alleges, whereby the hatch of a Humvee closed on her head and neck is not present within the service treatment records, those records contain multiple complaints of neck pain. Having said that, the Veteran’s claims file does not include an examination whereby an etiological opinion was rendered. VA’s duty to assist in a Veteran’s claim includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4). Therefore, in consideration of VA’s duty to assist, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that she is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. A VA medical examination and medical opinion are required by VA’s duty to assist the Veteran in developing evidence to substantiate her claim to service connection. The Board also notes that, while the July 2010 examination diagnosed the Veteran’s neck pain as cervicalgia, more recent examinations have not reiterated that same diagnosis. In fact, more recent notes and consultations have found negative x-ray results and have alternatively speculated as to “a pinched nerve in the neck.” Having said that, upon remand the Veteran’s diagnosis should be clarified. If a formal diagnosis is not found, the examiner should also note recent case law of Saunders v. Wilkie. In Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The case reversed years of precedent that had held that “pain alone is not a disability for the purposes of VA disability compensation.” Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Therefore, if such functional impairment is shown, an opinion must also be obtained as to the question of whether it is as likely as not related to the Veteran’s period of service. 2. Entitlement to service connection for headaches, to include as due to neck pain is remanded. The Veteran has also claimed that her headaches are due to service. As noted above, the Board has recharacterized the Veteran’s claim, due to the Veteran’s frequent co-complaints of headaches and neck pain. Specifically, in a statement from May 2012, the Veteran wrote that she has “migraine headaches … reoccurring at a rate of 2 times per week and lasting up to 2 hours … this has [affected] me from functioning normally.” She indicated that her headaches start in the front of her head and radiate towards the back of her head, and cause “blurred vision [and] dizziness.” A statement from June 2011 makes similar claims. As noted above, in the Veteran’s Form 9 from May 2016, she wrote that her in-service Humvee injury whereby she allegedly hurt her neck may be related to her headaches. Specifically, she stated that “the neck pain was initially mainly noticed with headaches, which would connect these two health/medical issues.” She further wrote that she gets up to two migraines per week, and “daily functioning is minimal when one occurs.” The Veteran has argued that the Humvee accident could have caused her current frequent headaches by itself, or alternatively that “these migraine headaches occur due to the trauma the neck received during the accident.” Thus, the Veteran has very coherently argued that her claimed headaches may be related to service on either a direct or secondary basis. The Veteran’s Representative has made similar arguments in a statement from December 2016. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). The Veteran’s claims file includes frequent complaints of headaches. As noted above in conjunction with neck pain, the Veteran’s service treatment records contain a complain of headaches in April 2008, and again in August 2009. As noted above, the Veteran was seen in July 2010 for various claimed disabilities. During this examination she was diagnosed with headaches. The examiner indicated that the headaches were “associated with … chronic neck pain.” The examiner further noted that the headaches caused poor concentration, weakness, fatigue and pain. Despite the examination making this formal diagnosis, an etiological opinion was not rendered. A medical record from December 2010 notes “headache syndromes: likely tension headache but may represent a mild migraine.” Headaches are included in a medical note from February 2011, and then again in May 2011. As noted above, VA’s duty to assist in a Veteran’s claim includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159 (c)(4). The Board finds that a remand is necessary for two reasons. First, an etiological opinion has not been rendered as to whether the Veteran’s headaches are at least as likely as not due to service. Additionally, the Veteran has argued that her headaches may be due to her neck pain. While her neck pain is not currently service-connected, that issue is being remanded herein, and thus the issues are inextricably intertwined. See, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, in consideration of VA’s duty to assist, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that she is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. A VA medical examination and medical opinion are required by VA’s duty to assist the Veteran in developing evidence to substantiate her claim to service connection. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for a VA medical examination with an appropriate physician in regard to her claims of entitlement to service connection for neck pain, as well as service connection for headaches. The entire claims file should be made available for the clinician to review, and the report should reflect that such review was accomplished. The clinician should consider the lay statements of the Veteran, as well as her in-service injuries and complaints of neck pain and headaches. The examiner is asked to offer opinions as to the following: (a.) Regarding the claimed neck pain, the examiner(s) is to provide a diagnosis which accounts for the Veteran’s present symptoms for her neck pain. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the “Functional Impact” section of the report. Then, address: Is it at least as likely as not (50 percent or greater) that the Veteran’s neck pain was caused by a disease or injury in service? **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b.) Regarding the Veteran’s headaches, whether it is at least as likely as not (50 percent or greater) that the Veteran’s headaches are causally related to, or aggravated by, her military service. Any opinion should include a complete rationale. (c.) If not, opine whether it is at least as likely as not (50 percent or greater) that the Veteran’s headaches are causally related to, or aggravated by, her neck pain. Again, any opinion should include a complete rationale. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.