Citation Nr: 21002764 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-27 487 DATE: January 14, 2021 ORDER New and material evidence having been submitted, the claim for service connection for a migraine headache disability is reopened. REMANDED Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for left epididymis cyst and left groin pain is remanded. Entitlement to service connection for a migraine headache disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to a rating in excess of 10 percent for cervical degenerative disc disease is remanded. Entitlement to a compensable rating for left shoulder residuals, rotator cuff tear is remanded. Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome is remanded. FINDINGS OF FACT 1. An August 2013 rating decision denied service connection for a headache disability on the basis that there was no current headache disability. The Veteran did not appeal the decision as it pertained to the issue of a headache disability and no new and material evidence was received within a year of the denial. Therefore, the decision became final regarding the issue of service connection for a headache disability. 2. Since the August 2013 rating decision, at the August 2019 Board hearing the Veteran submitted competent lay testimony of ongoing headaches, with 4 or more episodes per month. The evidence is probative and relevant and cures the prior evidentiary defect of a current disability. CONCLUSIONS OF LAW 1. The August 2013 rating decision is final as to the denial of service connection for a headache disability. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. New and material evidence sufficient to reopen the issue of entitlement to service connection for a headache disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to August 1990, from March 2002 to November 2002, from February 2003 to August 2003 and from February 2010 to May 2011, with additional periods of Reserve service. This matter came before the Board of Veterans Appeals (Board) on appeal from August 2013, June 2016 and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veteran’s Law Judge (VLJ) during an August 2019 hearing. The transcript of the hearing is of record. The VLJ who conducted the August 2019 hearing subsequently left the Board’s employment and the Veteran was offered another opportunity for a hearing in a March 2020 letter. The letter advised the Veteran that he could request a new hearing, but that if he did not respond within 30 days the Board would proceed to adjudicate the issues on appeal. The record is silent for any response from the Veteran or his representative, and the Board will therefore proceed to adjudicate the issues on appeal based on the evidence of record. The Veteran’s August 2016 Notice of Disagreement included the issues of increased ratings for the right shoulder and cervical spine disabilities. An August 2017 Statement of the Case (SOC) continued the denial regarding both issues. When the Veteran filed his September 2017 VA Form 9 in response to the August 2017 SOC, he limited his appeal to the issue of an increased rating for the cervical spine. However, the Veteran filed another September 2017 VA Form 9, which specifically referenced the issues of service connection for bilateral hearing loss, headache and lumbar spine disabilities and an increased rating for the left shoulder, but did not limit the appeal to the listed issues, indicating instead that he wanted to appeal all issues on the SOC and any other SOC the VA office sent to him. The Board notes that the second VA Form 9 was timely as it pertained to the issue of an increased rating for the right shoulder, and also notes that the Veteran and his representative submitted testimony regarding the right shoulder at the August 2019 Board hearing. The Board therefore finds that the Veteran perfected his appeal regarding an increased rating for the right shoulder and will proceed to adjudicate the issue herein. The Board also notes that the October 2016 rating decision found that new and material evidence was required to reopen the claim for service connection for migraine headache and lumbar spine disabilities. The decision stated that the August 2013 rating decision denying those claims had not been appealed within a year of the notification and that the decision was therefore final. However, the Board notes that after the issuance of the August 2013 rating decision, the Veteran submitted an August 2013 Notice of Disagreement (NOD). The decision stated that the Veteran was withdrawing his claim for service connection for headaches but specifically discussed his back pain. The RO then readjudicated the issue of entitlement to service connection for a low back disability in a June 2016 SOC, which specifically stated that the appeal arose out of the August 2013 rating decision. Finally, the Veteran perfected his appeal for a low back disability in a June 2016 VA Form 9. The Board therefore finds that the Veteran timely perfected his appeal regarding the issue of service connection for a lumbar spine disability and that the August 2013 decision was therefore not final regarding that issue. New and material evidence is therefore not required, and the Board will consider the issue in the first instance. Again, the Veteran explicitly excluded the issue of service connection for headaches from his August 2013 NOD. The Board’s review also indicates that the Veteran did not file a separate appeal or submit new medical evidence regarding his headache disability during the year after the issuance of the decision. The Board notes that the Veteran submitted a copy of his service treatment records, however those records were duplicates of records already in the claim file prior to the August 2013 rating decision. The Board therefore finds that the August 2013 rating decision was final as it pertained to the issue of service connection for headaches and new and material evidence is required. For the reasons stated above, the request to reopen the claim for service connection for a migraine headache disability has been granted. The Board will proceed with the adjudication of the issue in the decision below. 1. Entitlement to service connection for a left elbow disability Evidence indicates that there may be outstanding relevant VA treatment records. At the August 2019 Board hearing the Veteran reported that he has continued to receive VA treatment for the disabilities on appeal and goes to VA for treatment at least two or three times per year. The Board notes that the most recent VA treatment records in the file date from August 2017. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. At the August 2019 hearing, the Veteran also identified relevant outstanding private treatment records pertaining to the left elbow, stating that he sees a private provider for his left elbow disaiblity. A remand is required to allow VA to obtain authorization and request these records. 2. Entitlement to service connection for a lumbar spine disability The Veteran contends that his lumbar spine disability is due to injury in service, including from serving on small boats. A February 2016 VA examination noted the Veteran’s reports of symptoms beginning while serving on small boats and diagnosed degenerative arthritis of the lumbar spine but found that it was not likely due to service. As a rationale, the examiner stated that the Veteran “may have had” low back pain in service but it was a simple sprain/strain and resolved and that degenerative disc disease was due to the natural aging process. The Board notes that the examiner did not offer any basis for finding that degenerative changes were due to aging. The Board also finds that the opinion is based on an inaccurate medical history. While the examiner found only sprain/strain in service and indicated that back pain was speculative, service treatment records clearly document not only complaints of back pain but x-ray evidence of degenerative changes. A February 2011 x-ray at Norfolk Naval Station which found narrowing of L3-L4 and L5-S1 disc space, which the record states suggested degenerative changes at those levels. Regarding back pain, February 2008 records noted low back pain for 2 years, and September 2010 active duty records stated that the Veteran noted low back pain and tenderness to palpation, and the provider noted the Veteran’s statements that his sleeping accommodations during deployment exacerbated/caused the pain. The provider also noted harbor boat ops for 8 years, “which may have started the process.” March 2011 service treatment records then noted mid-level back pain since March 2010, brought on by wearing military field gear. The examiner’s speculative statement that the Veteran “may have had” back pain in service failed to properly address this history of documented back complaints. The examiner also incorrectly stated that the back pain was a sprain/strain, as there is evidence of degenerative findings. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinion—based on full review of the record and supported by stated rationale—is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The Board also finds that the question of whether the Veteran had a pre-existing back disability that was aggravated by active duty has been raised by the record. As noted above, February 2008 records from the time between the Veteran’s two periods of active duty noted back pain for two years and September 2010 and March 2011 service treatment records specifically noted complaints that the pain was exacerbated by wearing field gear and sleeping accommodations during deployment. This question should therefore also be addressed upon remand. The Board notes that the Veteran submitted a September 2019 private opinion which stated that the Veteran’s Naval experience “could be an exacerbating factor” for his lumbar spine disability. The opinion also stated that the Navy “can be a contributing factor.” The Board finds that the use of language such as “could be” and “can be” renders the opinion speculative and ambiguous and therefore inadequate for appellate review. 3. Entitlement to service connection for left epididymis cyst and left groin pain The Veteran contends that the left epididymis cyst and left groin pain had their onset in service. A February 2016 VA examination diagnosed erectile dysfunction but also noted a tender epididymis with a cyst. The examiner then offered an opinion finding that scrotal trauma incurred while getting out of bed in 1987 was not the likely cause of left groin pain and erectile dysfunction but did not specifically address the etiology of the cyst. The Board also notes that while the opinion stated that there were no clinical findings to support a connection between groin pain or erectile dysfunction and service, in the examination report the examiner specifically found that erectile dysfunction was diagnosed in service. Finally, the Board notes that the opinion did not address March 1989 and April 2011 records noting left groin pain in service. As the opinion is internally inconsistent and did not address either the Veteran’s diagnosed left epididymis cyst or complaints of groin pain during active duty, it is inadequate, and remand for a new examination is required. 4. Entitlement to service connection for a migraine headache disability A July 2013 VA examination noted headaches in service but stated that the Veteran did not report current headaches and did not diagnose a current headache disability. However, at the August 2019 Board hearing, the Veteran reported ongoing headache episodes at least 4 timers per month. The Board notes that the Veteran is competent to report lay-observable symptoms such as headache pain and also notes that April 1987 service treatment records noted a closed head trauma in service with headache and dizziness and February 2011 service treatment records noted that staples had been placed in the Veteran’s head. Remand for a new VA examination is therefore required to consider the competent lay evidence regarding ongoing headache pain. 5. Entitlement to service connection for a bilateral hearing loss disability At the August 2019 Board hearing, the VLJ stated on the record that acoustic trauma on active duty had been established as the Veteran had been a gunner’s mate while on active duty. The Veteran testified that he was also a small arms instructor and stated that he noticed hearing loss in service and reported it at his exit physical. The Board also notes that in-service acoustic trauma was conceded in the August 2017 SOC. A February 2016 VA audiological examination found that the right ear did not have hearing loss for VA purposes and that the left ear had hearing loss for VA purposes but was not likely due to service. For the left ear, the examiner stated that the opinion was based on the fact that that there were no significant threshold shifts in service and on the Veteran’s report of his responsibilities in service. However, the report is silent for a description of those responsibilities or a finding of acoustic trauma, so the Board cannot be certain that the examiner considered the Veteran’s conceded in-service acoustic trauma. Remand for a new examination is therefore required. At the August 2019 Board hearing, the Veteran also identified relevant outstanding private treatment records, stating that in addition to treatment at the VA, he received treatment for hearing loss at the Garden State Hearing and Balance Center. A remand is required to allow VA to obtain authorization and request these records. 6. Entitlement to a rating in excess of 10 percent for cervical degenerative disc disease A VA cervical spine examination was provided in February 2016. The Board notes that since that examination, the U.S. Court of Appeals for Veteran’s Claims (the Court) has issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) concerning the adequacy of VA orthopedic examinations. The Court in Correia 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 non-weight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. The Board’s review indicates that the VA examination of record did not include the testing required under Correia and that remand for a new examination is required. The Board also notes that while the February 2016 examiner found pain on ROM testing of the cervical spine, the examiner did not note the point in the ROM that pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia, 28 Vet. App. at 169. In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. This information should therefore also be obtained upon remand. 7. Entitlement to a compensable rating for left shoulder residuals, rotator cuff tear is remanded. 8. Entitlement to a rating in excess of 20 percent for right shoulder impingement syndrome VA shoulder examinations were provided in February 2016 and October 2016. The February 2016 examination conducted range of motion (ROM) testing of the right shoulder but is silent for left shoulder results. The October 2016 examination then performed ROM testing of the left shoulder but is silent for right shoulder results except a notation that no pain was observed. There is no indication in the reports that ROM testing of the opposing joints was not feasible on either occasion. The reports are also silent for joint testing for pain on passive motion. As the VA shoulder examinations of record did not include the testing required under Correia as discussed above, remand for new examinations is required. Id. The Board also notes that both the February 2016 and the October 2016 examiners found pain on ROM testing but did not note the point pain began. As discussed above, this does not allow for a proper assessment of functional impairment, and the information should be obtained upon remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for the Garden State Hearing and Balance Center and for the private provider who treats his left elbow disability, along with any other private providers who treat his claimed disabilities. Make two requests for the authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current lumbar spine disability. The examiner should review the file and provide a complete rationale for all opinions expressed. The following opinions are requested: a) Did the Veteran’s lumbar spine disability clearly and unmistakably pre-exist service? b) If the lumbar spine disability is found to pre-exist service, the examiner should address whether it was aggravated by service, to include sleeping accommodations and wearing field gear. The opinion should address September 2010 and March 2011 service treatment records regarding back pain. c) If the lumbar spine disability is found not to have pre-existed service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include reports of serving on small boats, wearing field gear and sleeping accommodations. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. Schedule the Veteran for an appropriate VA examination, to determine the etiology of his left epididymis cyst, left groin pain and erectile dysfunction. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that left epididymis cyst, left groin pain and erectile dysfunction are related to the Veteran’s active service, to include injury when getting out of his bunk. The opinion should address March 1989 and April 2011 service treatment records regarding left groin pain. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 5. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current headache disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current headache disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include episodes of head injury and headaches in service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 6. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current bilateral hearing loss disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current bilateral hearing loss disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service, to include his conceded in-service acoustic trauma while serving on active duty as a gunner’s mate and small arms instructor. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 7. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his cervical spine and right and left shoulder disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all cervical spine and right and left shoulder pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). 8. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.