Citation Nr: 21030331 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-40 034 DATE: May 18, 2021 REMANDED An initial compensable disability rating for service-connected tension headaches is remanded. An initial increased disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Service connection for a back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2009 to June 2009 and from July 2009 to July 2010. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. 1. An initial compensable disability rating for service-connected tension headaches is remanded. The Veteran believes that an initial compensable disability rating for service-connected tension headaches is warranted. See September 2020 Appellate Brief. The Veteran underwent a VA headache examination in September 2015. The examination found that the Veteran had tension and rebound headaches, that the headaches typically lasted for one hour, and that the Veteran did not experience non-headache symptoms associated with the headaches, such as an aura prior to headache pain. See September 2015 C&P Exam. The Board finds the September 2015 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the examination did not consider/was unable to consider medical records from 2015 showing headaches which lasted from hours to days, aura/sparking lights, and an impression that the headaches were mostly migraines. Medical records from 2016 showed a history of migraines. See March 2016 Medical Treatment Record; June 2016 C&P Exam. The Veteran underwent another VA headache examination in June 2017. The examination found that the Veteran had tension headaches two to three times daily, that the headaches typically lasted less than one day, and that the headaches were not prostrating. See July 2017 C&P Exam. The Board finds the June 2017 examination inadequate because it did not consider/was unable to consider all the relevant evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 295. Specifically, the examination did not consider/was unable to consider the Veteran's report of three to four headaches daily, that the headaches at times were debilitating at a frequency of far more than three to four times per month, and that the headaches were making the Veteran unable to perform his job at times. Medical records from 2016 showed headaches with migrainous features such as light/sound sensitivity with hours to days durations. See October 2016 Correspondence; August 2016 Form 9; August 2017 CAPRI. For these reasons, a remand is needed for a new VA headache examination. 2. An initial increased disability rating in excess of 50 percent for service-connected PTSD is remanded. The Veteran believes that an initial increased disability rating in excess of 50 percent for service-connected PTSD is warranted. See September 2020 Appellate Brief. In February 2016, the Veteran reported that he had to have mental health visits because of a recent arrest. See February 2016 NOD. Currently, it does not appear that these mental health records are associated with the claims file. Additionally, the most recent VA treatment records associated with the claims file are from May 2017, leaving a period of four years (more than half the appeal period) without updated records. Therefore, a remand is needed to attempt to obtain these outstanding medical records so that a proper determination can be made for the entire appeal period. See 38 C.F.R. § 3.159. 3. Service connection for a back condition is remanded. The Veteran believes that service connection for a back condition is warranted. See September 2020 Appellate Brief. Generally, a VA examination is required for a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Medical records show that the Veteran has chronic midthoracic muscle spasms and an impression of thoracic spine mild multilevel degenerative changes consistent with osteoarthritis. See June 2017 CAPRI; August 2016 Medical Treatment Record. As such, the Board finds that the first prong is met. The Veteran reported that his back problems are due to carrying heavy gear for prolonged periods of time during active service. The back problems began after the Veteran returned from active service in Iraq. The Veteran also reported that medical personnel have confirmed that the back problems are related to active service. See September 2020 Appellate Brief; October 2016 Correspondence; February 2016 NOD. As such, the Board finds that the second and third prongs are met. Given these facts, the Board finds that a remand is necessary to obtain a VA examination to determine the etiology of the Veteran's back condition. See McLendon, 20 Vet. App. at 83. The matter is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any relevant outstanding private and/or VA treatment records, including but not limited to, mental health records following an arrest around 2015/2016. After obtaining any necessary authorizations from the Veteran, make all reasonable attempts to obtain the outstanding records in accordance with 38 C.F.R. § 3.159. 2. Update VA and private treatment records. VA treatment records appear current up to May 2017. 3. Contact all appropriate sources to obtain the Veteran's outstanding Reserve/National Guard service treatment and personnel records. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran's claims file. The record suggests that the Veteran has continued to serve in the Reserve/National Guard since filing claims with VA. See May 2016 Fully Developed Claim. 4. Make a formal finding for all periods of active service, ACDUTRA, and/or INACDUTRA in terms of specific dates. If this cannot be accomplished, provide an explanation. 5. Schedule one or more appropriate VA examinations to determine the nature and severity of the Veteran's service-connected tension headaches throughout the entire appeal period (i.e. since April 2015). The examiner should also consider the impact that the Veteran's tension headaches may have on his concentration/focus, work productivity, home life, and sleep. The need for an in-person examination of the Veteran is left to the discretion of the examiner. The claims file and a copy of this Remand should be made available to and reviewed by the examiner. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected tension headaches throughout the entire appeal period (i.e. since April 2015). This should also include all symptoms and related impairment that would be present without the relief provided by medications used to treat the disability. This should also include the impact that the Veteran's tension headaches may have on his concentration/focus, work productivity, home life, and sleep. After a review of the record on appeal and an examination of the Veteran, the examiner is asked to provide the following opinions: (A) Identify all disabilities related to the Veteran's service-connected tension headaches existing at any point during the pendency of the appeal (i.e. since April 2015) even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) The Veteran is also claiming that his service-connected tension headaches are affecting his concentration/focus, work productivity, home life, and sleep. Identify all disabilities related to these complaints existing at any point during the pendency of the appeal (i.e. since April 2015) even if they are currently asymptomatic or have resolved during the pendency of the appeal. (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by or aggravated by the Veteran's service-connected tension headaches? For aggravation, state whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. In providing an opinion, the examiner should consider all the relevant evidence listed further below in this Remand. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 6. Schedule an appropriate VA examination for the Veteran's back conditions. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the reviewing examiner is requested to furnish an opinion with respect to the following: (A) Identify all back related disabilities existing at any point during the pendency of the appeal (i.e. since April 2015), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability had its onset in or is otherwise related to the Veteran's active service, active duty for training (ACDUTRA), and/or inactive duty for training (INACDUTRA)? If yes, which ones? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities)? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran's obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran's back related disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? (G) Is it at least as likely as not (a 50 percent or greater probability) that any back arthritis manifested to a compensable degree within one year from separation from active service? (H) Is it at least as likely as not (a 50 percent or greater probability) that any back arthritis was noted during service/within one year following the Veteran's separation from active service, with continuity of symptomatology since? In providing an opinion, the examiner should consider all the relevant evidence listed further below in this Remand. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or due to the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 7. For each VA examination, the examiner should consider the following relevant evidence, with a caution that this list is not a substitute for a review of the record: Headaches (1) The Veteran's 2020 report that his headaches are more severe than the 2017 examination reflected. He reported more severe symptoms, including debilitating headaches that affected concentration and sleep and that caused an inability to perform work duties. The Veteran also reported that at times, headaches lasted from hours to days and caused him to see sparking lights. The evidence showed prostrating attacks at a minimum of several times per week and that they caused the Veteran to miss a significant amount of time from work. Indeed, the evidence of record showed prostrating and prolonged attacks during the whole appeal period producing economic inadaptability. See September 2020 Appellate Brief. (2) Medical records from 2016 showing a history of chronic migraines, that the Veteran got five hours of sleep at night, and that the Veteran's headaches had migrainous features such as light/sound sensitivity and lasted from hours to days. The Veteran had headaches one to three times per day, they were exacerbated by noise and movement, the Veteran had slow focusing when the headaches were bad, and headaches caused the Veteran to be late to work 25 percent of the time. Further information is provided. See August 2017 CAPRI. (3) A medical record from 2017 showing tension headaches two to three times per day with constant head pain, pulsating or throbbing head pain, and pain localized to one side of the head. The headaches could be so distracting that the Veteran just needed to go back to bed and sleep, which required using sick leave. Further information is provided. See June 2017 C&P Exam. (4) The Veteran's 2016 report of headaches three to four times daily and that they caused him to take time off from work. See October 2016 Correspondence. (5) Medical records from 2016 showing the Veteran's report of three headaches per day. See August 2016 Medical Treatment Record. (6) Medical records from 2015 and 2016 showing two to three headaches per day lasting from hours to days. See August 2016 Medical Treatment Record. (7) The Veteran's 2016 report that his headaches were debilitating far more than three to four times per month and were resulting in the inability to perform his job. He had two to three headaches per day and had to use sick leave or had to be late to work quite frequently. He had been put on multiple medications to try and find a remedy, but most offered little relief and horrible side effects. The Veteran had white matter on his brain which was said to be normal in the elderly. See August 2016 Form 9. (8) Medical records from 2015 and 2016 showing chronic headaches, described as throbbing and constant, one to two times daily. An MRI showed results consistent with migraines. Further information is provided. See March 2016 Medical Treatment Record. (9) Medical records from 2015 showing headaches lasting from hours to days, which throbbed at the midline and back of the head. The Veteran experienced aura/sparkling lights. Headaches occurred two to three time daily. The Veteran missed work because of headaches and slept three to four hours at night. Id. (10) The Veteran's 2016 report that he was still suffering from three headaches daily. It affected his ability to sleep, concentrate, and work at times. He was taking multiple prescriptions from VA. The headaches were costing him time and performance at work and affected his home life. See February 2016 NOD. (11) A medical record from 2015 showing that the Veteran's rebound headaches were due to medication for his tension headaches. The Veteran had occipital headaches two to three times daily. The headaches were distracting. There was headache pain which pulsated or throbbed. The Veteran had diminished concentration/productivity as a result. See September 2015 C&P Exam. (12) The Veteran's 2015 report of constant headaches. See April 2015 VA 21-0781. (13) All other relevant lay and medical evidence. Back (1) A list of the Veteran's service-connected disabilities. See August 2017 Rating Decision Codesheet. (2) Medical records from 2016 and 2017 showing the Veteran's report of constant back muscle spasms, an MRI suggesting degenerative changes with disc protrusion, an impression of upper back spasms, and chronic midthoracic muscle spasms. Further information is provided. See June 2017 CAPRI. (3) The Veteran's report that doctors told him that the back problems were caused over the course of time. He had been diagnosed and it had been confirmed that the back problems were more likely than not caused by carrying gear during active service. See October 2016 Correspondence. (4) Medical records from 2016 showing the Veteran's report of chronic back pain in the upper thoracic spine since 2010 when he was in Iraq. His back was injured due to the prolonged carrying/wearing of heavy gear during active service. See August 2016 Medical Treatment Record. (5) The Veteran's 2016 report that the diagnosis so far was osteoarthritis, which was not abnormal to find in an older person due to wear and tear or in combat veterans due to trauma like carrying heavy gear for prolonged periods of time. He began having back problems around five years ago while still very young. See August 2016 Form 9. (6) Medical records from 2015 showing the Veteran's report of years of thoracic spine pain due to heavy rucksack carrying during active service. See May 2016 CAPRI. (7) Medical records from 2015 and 2016 showing upper thoracic pain, chronic middle back pain, that the Veteran most likely had muscle spasms, that the Veteran used a heavy pack during service, and a body mass index over 30. See March 2016 Medical Treatment Record. (8) The Veteran's report that back problems began after returning home from Iraq. He never had back problems before that. The back problems were due to carrying/wearing gear during active service. Further information is provided. See February 2016 NOD. (9) All other relevant lay and medical evidence. 8. Readjudicate the issues on appeal. The AOJ should consider separate ratings under any diagnostic code or by analogous rating if warranted by the evidence of record. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dougan, 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.