Citation Nr: 21020944 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-51 142 DATE: April 8, 2021 ORDER Service connection for headaches is granted. REMANDED Entitlement to service connection for a left rotator cuff disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a breathing disability, to include bronchitis and chronic chest congestion, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran has experienced chronic headaches since his separation from service. CONCLUSION OF LAW The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2002 to September 2005. On appeal are four different rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) that have since been combined into one appeal. The first is an April 2011 rating decision that, among other things, denied service connection for a left rotator cuff disability, left hip disability, headaches, and sleep apnea. The second is a June 2011 rating decision that denied service connection for a knee disability and back disability. The third is an August 2013 rating decision that denied service connection for bronchitis/chronic chest congestion. The fourth and final rating decision on appeal is an August 2016 rating decision that denied TDIU. When this matter was initially before the Board of Veterans’ Appeals (Board) in March 2019, the Board denied service connection for other issues (not relevant to this appeal); remanded the issues noted in this appeal for additional development, to include obtaining VA examinations; and, denied TDIU. The Veteran appealed the Board’s decision. In July 2020, the U.S. Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision that vacated and remanded only that portion of the Board’s March 2019 decision that denied TDIU, noting the Board’s remands are not final decision of the Board. In an October 2020 Decision Review Officer (DRO) rating decision that followed, the DRO granted service connection for three of the issues on appeal: sleep apnea, a back disability, and bilateral knee disability. As this is a full grant of the benefit sought on appeal for three of the issues (i.e. service connection), the issues of sleep apnea, back disability, and bilateral knee disability are no longer before the Board for review. Finally, it must also be noted that in this October 2020 DRO rating decision, the DRO had also granted special monthly compensation based on housebound criteria from July 31, 2019, which impacts the issues of TDIU as discussed below. The matter has now been returned to the Board for appellate review. The issue of service connection for headaches is addressed in the remand below. The remaining issues of service connection for left rotator cuff disability, left hip disability, breathing disability to include bronchitis and chronic chest congestion, headaches, and TDIU are addressed in the REMAND section. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to include headaches, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for headaches The Veteran seeks service connection for headaches. The Veteran’s DD-214 reflects the Veteran’s MOS was Field Artillery Meteorological Crew Member; that he completed service in Iraq; and, that he earned several medals, badges and citations, to include the Iraq Campaign Medal, Global War on Terrorism Service Medal and Combat Action Badge. The Veteran’s service treatment records are associated with the Veteran’s claims file. A November 2004 Post Deployment Health Assessment reflects the Veteran complained of headaches during his deployment to Kuwait and Iraq. Similarly, a February 2005 Post Deployment Health Assessment reflects the Veteran complained of headaches during his deployment to Kuwait and Iraq. The June 2005 separation Report of Medical Examination reflects the Veteran had a normal examination, but one of the defects noted was “uncontrolled hypertension.” (The Board notes the Veteran is currently service-connected for hypertension). Post service VA treatment records from the Washington VAMC are associated with the Veteran’s claims file. In summary, these records reflect the Veteran continued to complain of headaches after his discharge from service. A March 2007 primary care note reflects the Veteran presented with complaints of headaches, fatigue, and forgetfulness. It was noted this was the Veteran’s first visit to the clinic since he served in Operation Iraqi Freedom where he was stationed in Iraq. An April 2010 Emergency Room note reflects the Veteran reported with a chief complaint of “I cannot go on like this anymore.” The Veteran reported mild frontal headaches; drinking alcohol daily; frequent cocaine use; and, an inability to sleep at night secondary to being afraid of the dark and flashbacks. An October 2010 record reflects a complaint of headaches. A September 2011 mental health note reflects the Veteran called to state he has a bad headache and will not be in for his counseling session. A December 2013 record reflects the Veteran is prescribed medication for headaches. A June 2018 emergency department record reflects the Veteran was treated for headaches, chest discomfort and elevated blood pressure. An April 2019 mental health note reflects a complaint of headaches. In October 2010, the Veteran underwent a VA examination for headaches. The examiner noted a current diagnosis of “tension headaches.” Upon review of the patient’s medical records, the examiner noted the Veteran had some visits for bronchitis and untreated hypertension due to medication noncompliance, at which time he had some headaches. It was noted the Veteran reported intermittent headaches since 2004, usually one to two times per month, bilateral in location, worsened with noise and light, that were relieved by going to bed. He reported his last headache was 1 week ago. The examiner opined it was less likely than not the Veteran’s headaches were caused by or a result of service. As rationale, the examiner stated, “clinical experience and expertise, medical explanation of the basis of relationship, several medical records, and treatment records.” In September 2020, the Veteran underwent another VA examination for headaches. The written report indicates records were reviewed, but there was no in-person examination. The examiner noted a current diagnosis of migraine including migraine variants. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service connection condition. As rationale, the examiner stated all relevant documents have been reviewed and there was no information to indicate that the Veteran developed chronic headache condition as a result of service-connected disabilities. In addition, in the June 2005 separation report of medical, the Veteran reported no frequent or severe headache. Based on medical record review, the headache condition is less likely than not proximately due to or the result of service-connected disabilities. The Veteran’s records from the Social Security Administration (SSA) have been associated with the Veteran’s claim file. These records reflect the Veteran filed a claim for disability in July 2013 due to PTSD, high blood pressure, lower back injury, arthritis, depression, and tinnitus (headaches were not listed). In September 2014, SSA determined the Veteran was not disabled for SSA purposes. The Board acknowledges the Veteran’s competent and credible lay statements to the effect that he has maintained headaches intermittently since his discharge from service, and in the contexts of the specific facts of this case, the Board finds the Veteran’s report of headaches to be consistent with the finding of an organic disease of the nervous system. In light of the above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. The Board finds this combat Veteran to be credible in his statements that he experienced headaches in service and has had headaches ever since, and that his contentions are supported by both the service treatment records and his post service VA treatment records. Furthermore, the Board notes that in the case of chronic diseases under 38 C.F.R. § 3.309(a), service connection may be awarded solely based on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In reaching this conclusion, the Board has considered the October 2010 VA examiner’s opinion on direct service connection in this matter but finds that the one-sentence rationale did not adequately support or explain the examiner’s opinion. The Board has also considered the September 2020 VA examiner’s opinion on secondary service connection wherein the examiner stated, as noted above, that all relevant documents have been reviewed and there was no information to indicate that the Veteran developed chronic headache condition as a result of service-connected disabilities, but finds that the examiner did not appear to take into account the Veteran’s contentions, or the VAMC treatment records which show continuity of symptomatology after service. Accordingly, the Board finds that service connection for headaches has been established, based on the Veteran’s competent and credible reports of continuity of symptomatology after service, and as such, service connection is warranted for headaches. REASONS FOR REMAND 1. Entitlement to service connection for a left rotator cuff disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for a breathing disability, to include bronchitis and chronic chest congestion is remanded. Although the Board regrets the additional delay imposed on this appeal, the Board finds that the Veteran’s remaining claims must be remanded for new VA examinations. A remand by the Board confers on the claimant a legal right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. In March 2019, the Board remanded so that the Veteran could be afforded an appropriate VA examination to determine the nature and etiology of his left rotator cuff disability, left hip disability, and breathing disability. For each disability, the examiner was specifically asked to opine whether the condition was at least as likely as not: (a) related to service and (b) due to any of the Veteran’s service-connected disabilities. In September 2020, new VA examinations were obtained. The Board has reviewed the September 2020 written examination reports for each claimed disability and finds that the opinions were inadequate. First, the examiner did not address whether any of the claimed conditions were due to any of the Veteran’s service-connected disabilities as specifically instructed in the previous Board remand. The Board thus finds that there was not substantial compliance with the March 2019 Board remand and will once again remand these claims. Stegall, 11 Vet. App. At 27 Second, the examiner’s rationale for direct service connection (which was almost identical for each issue) was that “there was no information in STRs [service treatment records] to indicate the Veteran developed a chronic condition during service; and the separation exam was silent for the issue.” The Board finds this rationale to be inadequate as it appears the only focus was on the service treatment records, with no apparent consideration of the lay evidence in the case or the post service VAMC treatment records. Based on the above, the Board finds that new VA examinations are warranted. 4. Entitlement to TDIU is remanded. The Veteran seeks service connection for TDIU. As noted above, in an October 2020 DRO rating decision, the DRO granted special monthly compensation based on housebound criteria from July 31, 2019. As such, the appeal of TDIU must be dismissed from the date of housebound (July 31, 2019) due to the lack of remaining available benefit. The period prior to July 31, 2019 remains before the Board for review. For the period prior to July 31, 2019, the Board finds that the TDIU claim is inextricably intertwined with the pending claims for service connection. As any allowance of the service connection claims remanded herein could affect the outcome of the TDIU claim, the appropriate remedy for inextricably intertwined issues is to remand them pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination, preferably via telehealth if available, to determine the nature and etiology of his claimed left rotator cuff disability. 2. Schedule the Veteran for a VA examination, preferably via telehealth if available, to determine the nature and etiology of his claimed left hip disability. 3. Schedule the Veteran for a VA examination, preferably via telehealth if available, to determine the nature and etiology of his claimed breathing disability to include bronchitis and chronic chest congestion. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. For each claimed disability, the examiner must opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent or greater probability): (a) the Veteran’s disability was incurred in and due to the Veteran’s service (direct service connection); and (b) the Veteran’s disability is proximately due to or aggravated by any of his service-connected disabilities (secondary service connection). The examiner is advised that the Veteran is service-connected for PTSD; sleep apnea; degenerative joint disease of the lumbar spine osteoarthritis of the left and right knee; hypertension; radiculopathy of the left lower extremity; dermatitis of the right hand and chest; and tinnitus.) A complete rationale must be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report history and symptoms, and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran’s reports, the examiner should provide a rationale for doing so. For the left rotator cuff disability and the left hip disability, the examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the joint in question. 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 must also describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Finally, the examiner must also discuss any functional impact caused by the Veteran’s claimed left rotator cuff and left hip disability. 4. After completing the above, readjudicate the issues on appeal, to include entitlement to TDIU. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case, to include the appropriate laws and regulations, and should be given an opportunity to respond. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.