Citation Nr: 21026469 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-36 125 DATE: May 3, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to an increased rating for migraine headaches in excess of 10 percent disabling prior to November 20, 2019 and in excess of 30 percent as of November 20, 2019 is remanded. FINDING OF FACT The evidence is in equipoise whether a disability of the cervical spine was caused by a motor vehicle accident in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1984 to April 2004. This appeal comes before the Board from a July 2012 rating action which denied the issues on appeal. The Board remanded this matter for additional development in April 2019. This matter is now returned to the Board for consideration. The Board note that there are other matters in various stages of development under the modernized review system, also known as the Appeals Modernization Act (AMA) e.g. 38 C.F.R. § 20.300, effective February 19, 2019, which is effective February 19, 2019 and automatically applies to ratings issued as of that date. Those appeals will be addressed by the Board or VA in separate decisions. The Veteran has not chosen to have the current appeal considered under the AMA through the VA's test program RAMP, the Rapid Appeals Modernization Program for rating decisions issued prior to February 19, 2019, so the current appeal shall remain under the pre-AMA system known as the legacy system. While the matter was pending on remand the RO granted a staged increased rating from 10 percent to 30 percent disabling for migraine headaches effective November 20, 2019. The Board has recharacterized the issue to reflect this staged increase. 1. DDD cervical spine Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for certain chronic diseases, including arthritis, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309. The Veteran alleges that service connection is warranted for a cervical spine disorder which she alleges is due to injuries sustained in a motor vehicle accident while in the service around 1986. Service treatment records (STRs) do not include actual treatment records documenting such an accident, nor do they show treatment for neck/cervical spine complaints at any time during service. However, the STRs do show that the Veteran had repeated treatment for migraine headaches throughout service and she is service connected for migraine headaches. Additionally there is a past history of a motor vehicle accident (MVA) having been noted in reports of medical history in August 2002 and on separation in December 2003, with the accident said to have taken place about 16 years ago in the August 2002 history, which would have been around 1986, early during her period of service. The MVA was said to have resulted in a head injury. However, no neck injury was reported in any reports of medical history and her neck was normal on periodic examinations including on separation in December 2003. Neck problems were shown in VA treatment records beginning in 2009, including an April 2009 record addressing complaints of headache and now neck pain, with an impression of cervical occipital headache deemed possibly related to degenerative joint disease (DJD) of the neck and migraine. MRIs were ordered. On neurological consultation in May 2009, she was seen for consultation for complications of a MVA that occurred in the military, which she described as a very serious accident which included the vehicle being struck and rolled approximately six times. She was thrown around in the vehicle but not thrown loose. She reported a brief loss of consciousness, was treated, and released but had continuing headaches and neck pain. Following this accident, she had continuing intermittent neck pain that gradually got worse until approximately six months ago when she noticed that it was constantly feeling stiff. Migraine headaches were also noted. Review of cervical spine X-rays showed mild degenerative arthritis and MRI studies of the neck shows definite disk bulges, if not herniations, at the C3-4 and C4-5 level. Physical examination revealed restricted range of motion of the neck, significant spasm in the occipital region of the neck and in the upper paravertebral muscles in the neck. There were also trigger points in the strap muscles of the neck, and definite tenderness over the greater occipital nerve. Following examination, she was assessed with recurrent neck pain since a motor vehicle accident while in the military in 1986 with documented two-level discogenic changes, with some arthritic changes consistent with an injury this age and probably accounting for the increased frequency of headache and neck stiffness since that time. A November 2010 record addressing complaints of migraines also noted chronic neck problems which she believed started after a MVA and she was noted to have spondylosis with degenerative discs. Other VA records suggesting a link between the Veteran's neck disorder and the inservice MVA include records from May 2011 which noted complaints of neck pain for years with symptoms having followed an auto accident. Her pain worsened since then, usually exacerbated by movements. She had bulging discs diagnosed following an April 2011 MRI with the report showing a reversal in cervical lordosis, loss of height at C4-C5 disk with posterior C3-C4 and C4-C5 disk protrusions but no cord compression. The impression was cervical spondylosis with cervicalgia, rotational cervical brachialgia and history of headaches. A June 2011 physical therapy record also gave a history of her neck pain going into her left upper shoulder area which started in the 1984-85 timeframe when she reported having an MVA and suffered whiplash. The 2011 MRI and X-rays were reviewed, and she was assessed with probable mechanical neck pain with mild left radiculopathy, exacerbated by compression (axial only) and relieved by light manual traction. Additional evidence suggesting a link between the Veteran's neck disorder and her in-service MVA includes an April 2014 physical therapy consult for reassessment of chronic neck pain since MVA several years prior as well as intermittent "ice pick" pains in her left occipital and right parietal areas. She was noted to have headaches that improved with a neck massage, and had cervical spondylosis noted to have been diagnosed in April 2009. In November 2015 the Veteran was seen by a private pain physician for headaches and neck pain on both sides with migraines and muscle spasms which she reported began in the 1980s after being his by a drunk driver and with pain on and off since. The pain was continuous and began due to a MVA years ago. The assessment was that the Veteran's pain has a facet etiology of the cervical spine. A November 2015 letter from the Veteran's physician at the pain center explained it is his impression that her complaints are streaming from her cervical facets which likely were injured during the car crash years ago. A March 2017 record which diagnosed cervicalgia also indicated that her pain has a single clear most likely etiology, with the pain having a facet etiology. Private chiropractor records disclosed that the Veteran underwent chiropractic treatment from November 2015 through August 2016 for chronic neck pain. Causation details noted in the initial visit in November 2015 noted the Veteran's reports of neck pain and muscle spasm which was caused by MVA many years ago that caused a bulging disc. In June 2017 the chiropractor drafted an opinion letter confirming treatment through this period of time from 2015 and 2016 for severe pain in her cervical spine and giving an opinion that her injuries were directly related and coincide with a MVA she was in several years prior while on active duty. The VA ordered examinations to address the etiology of his cervical spine pain. A May 2012 VA examination diagnosed DDD of the cervical spine and disc bulging of C4-5, date of diagnosis in 2011. The examination noted the Veteran's history of an MVA in 1985 with a report of being treated at the tie in service. She was seen in 2008 for pain in the posterior neck and was told he had a bulging disc. Examination showed normal motion except for extension limited to 40 degrees with some pain on movement, normal muscle strength and reflexes, and normal sensory examination with no evidence of radicular pain. The examiner reviewed the findings on MRI and X rays diagnosing cervical disc bulging. The examiner gave an opinion that it is less likely than not that the Veteran's cervical disc bulging with muscle spasm is less likely as not incurred in or caused by service. The rationale was that there is no objective evidence of onset of a chronic neck problem in service. The examiner noted that although the report of medical history in 2002 noted that she was involved in an MVA 16 years prior, there was no mention of any chronic residuals. The records were noted to be silent for any complaint, diagnosis, or treatment for cervical spine condition during service. This opinion did not consider the Veteran's lay evidence regarding continuity of symptoms following the MVA and thus was deemed inadequate by the Board, prompting a remand for an addendum opinion. The VA obtained an addendum opinion in November 2019 which opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In the rationale the examiner noted that the STRs were silent for any complaint, diagnosis, or treatment of neck pain with the separation examination negative for neck concerns but did note the MVA with head injury in 1985. The examiner further noted the MRI findings of mild DDD and mild bulging disc C4-5 and opined that DDD is typically an age related process while disc bulge is typically an acute injury and can resolve. The examiner further opined that there is no medical evidence presented to show the veterans neck conditions began while on active duty service or were caused by the MVA 16 years prior to separation from service. The examiner stated that a nexus has not been established and went on to describe how several factors can cause discs to degenerate including age. However, the examiner did not discuss the Veteran's lay statements regarding continued symptomatology. Nor did the examiner address the other medical evidence of record suggesting that the Veteran's cervical spine disorder is related to his in-service MVA. An April 2020 VA examination DBQ is noted to have focused on the functional limitations of the cervical spine disorder, with diagnoses of cervical spondylosis, cervicalgia, and neck pain given. No etiology opinion was given in this examination, which was addressing functional capacity, but there was a noted history of her neck bothering her since the 1985 MVA. In making all determinations, the Board must fully consider the lay assertions of record. If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Although the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), the Board shall draw no such inferences regarding the passage of time in this matter, and acknowledges the Veteran's lay statements regarding her reports of neck pain continuing after the in-service MVA. The Board notes that there is a balance of favorable versus unfavorable evidence as to whether the Veteran's cervical spine disorder began as a result of a reported in-service MVA. Although the STRs did not disclose records from the actual accident, they did document a medical history of such an accident occurring in the mid-1980s in the reports of medical history in August 2002 and on separation in December 2003. Furthermore, while neck problems per se were not documented in the STRs, the Board notes that the post service treatment records have disclosed that the Veteran's cervical spine symptoms include headache symptoms and diagnoses including cervicalgia. Thus, it is feasible that the repeated headache symptoms documented in the STRs could potentially be symptoms of a cervical spine disorder in addition to the migraine headaches for which service connection is in effect. Furthermore, the Board accepts the Veteran's lay history of intermittent neck pain following the MVA. The Board further accepts the favorable medical evidence finding that the Veteran's cervical spine disorder is related to service. The favorable evidence includes the May 2009 neurological opinion, which opined the Veteran had arthritic changes consistent with an injury dating back to service and probably accounting for the increased frequency of headache and neck pain, a November 2015 letter from the pain center physician explaining that her symptoms streaming from her cervical facets were likely injured during the car crash years ago and the June 2017 chiropractor's opinion that the Veteran's cervical spine symptoms were directly related to and coincide with a MVA years ago. The opinions were supported by adequate rationale which included discussion of the lay evidence and medical evidence. Conversely the VA examination opinions from 2012 and 2019 failed to adequately consider the Veteran's lay history of the MVA in service and her continuity of symptoms afterwards. They also did not address the favorable evidence of record. The Board finds that, at the least, the evidence for and against the claim is in relative equipoise. Therefore, resolving all reasonable doubt in the Veteran's favor, her claim of service connection for a cervical spine disorder is granted on a direct basis. 38 U.S.C. § 5107; 38 C.F.R. § 3.303(d). REASONS FOR REMAND 1. Increased rating for migraines is remanded. Since the Veteran's most recent VA examination of December 2019, her representative has alleged worsening symptoms in the April 2021 brief, by pointing out that she has symptoms that include cervicogenic headache and suggesting that such headache can be debilitating and may not respond to medication. Furthermore, since the December 2019 VA examination the records include a November 2020 record indicating that the Veteran had a bad month taking 70 milligrams of Erenumab per month, so the doctor was doubling the dosage to 140 milligrams per month for headaches. In light of possible worsening of his migraines since the last examination, reexamination is needed to evaluate the condition fully and fairly on appeal. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505 -06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability... the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). Furthermore, due process matters require remand in this matter. The appellate process set forth in 38 U.S.C. § 7104 (a) contemplates that all evidence will first be reviewed by the AOJ so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or in a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31 (b)(3). Initial AOJ review is automatically waived for evidence submitted by the Veteran or her representative when the VA Form 9 is received after February 2, 2013, as is the case here; however, the automatic waiver does not apply to VA-generated evidence not submitted by the Veteran. 38 U.S.C. § 7105 (e). Further, waiver of a supplemental statement of the case is only applicable to evidence submitted by the Veteran or her representative. See 38 C.F.R. § 20.1305. In the present claim, a supplemental statement of the case (SOC) was issued in March 2020. However, hundreds of pages of additional VA treatment records were associated with the claims file from March 2020 to April 2021. However, the AOJ did not prepare a supplemental statement of the case (SSOC) considering this newly VA generated evidence. Accordingly, a remand is required for the issuance of an appropriate SSOC that considers the additional VA treatment records, VA examination reports, and any other relevant evidence received since the last SSOC. See 38 C.F.R. § 20.1304 (c). Additionally, an effort should be made to obtain any outstanding records that may be pertinent to this matter. The matter is REMANDED for the following action: 1. Please undertake appropriate development to obtain pertinent VA records after April 2021 and any other outstanding records pertinent to the Veteran's migraine headache claim. 2. After records development is completed, schedule the Veteran for a VA headaches examination to determine the current symptoms, level of severity, and functional impairment associated with her migraines. The claims file should be reviewed by the examiner. 3. Thereafter, review the expanded record and readjudicate the issue on appeal. If any benefit sought on appeal remains denied provide the Veteran and her representative with a SSOC. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.