Citation Nr: 21040986 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 17-27 236 iDATE: July 7, 2021 REMANDED Entitlement to service connection for lumbar spine disability is remanded. Entitlement to an increased disability rating for service-connected headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to January 1974, with additional service in the National Guard, including active duty for training (ACDUTRA) in June 1974 to August 1975. The matter of entitlement to service connection for lumbar spine comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, this matter was remanded for further development in August 2019. The RO issued a Supplemental Statement of the Case (SSOC) in June 2019. The Board received additional evidence from another VA examination conducted in December 2019 and issued another SSOC in August 2020. The claim for entitlement to service connection for lumbar spine disability is now properly before the Board. The matter of entitlement to an increased rating for migraine headaches comes before the Board on remand from a decision issued by the Court of Appeals of Veterans Claims, vacating the Board's prior decision. The Board finds that the Veteran is entitled to a new VA examination to determine the severity of the migraine headaches, '[w]here the veteran claims a disability is worse than when originally rated, and the available medical evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination' to fulfill its duty to assist." Olson v. Principi, 3 Vet. App. 480, 482 (1992). This matter is now properly before the board. Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. §5103A; 38 C.F.R. § 3.159. Entitlement to service connection for lumbar spine disability is remanded. The Veteran contends that he is entitled to service connection for his lumbar spine disability. The Board finds that the Veteran does have a current diagnosis of a lumbar spine disability. However, there is conflicting evidence withing the record regarding the nexus of whether the Veteran's in-service injury is etiologically related to his current condition. The Veteran was afforded a VA examination in May 2019 in which the examiner opined that the Veteran's singular in service event that resulted in low back pain in November 1972 where he was treated with heat only. It was not related to his current disability. The examiner opined that since the Veteran did not have any records of treatment post-service until the 2000s, there was no nexus. The Veteran was afforded another VA examination in December 2019 where the examiner opined that there is no evidence showing that a cervical spine condition or neck pain resulted from a head injury in service. The examiner stated that post military records were silent for decades for complaints, diagnosis, or treatment of any cervical spine condition. The Veteran submitted evidence from a private physician, dated June 2021, who opined that the Veteran's current disability is related to his in-service injury to a high degree of certainty. The private physician indicated that the VA examiners focused on the Veteran's lack of treatment. The physician noted that the Veteran did not receive medical treatment due to financial, fear motivated, and determined that the fact that the Veteran did not receive on going treatment didn't mean he didn't suffer with pain. The physician also noted that the Veteran's condition is one that progresses over time and is a chronically developing condition that can present with symptoms years after trauma. The Board finds that a new VA examination is needed to determine the nature and etiology of the Veteran's current condition. There is conflicting evidence of record, and the RO should request a new VA examination in order to resolve the conflicting information. Entitlement to an increased disability rating for service-connected headaches. The Veteran testified in a Board hearing that he had headaches that impacted his ability to go to work. The Veteran testified that he had worsening symptoms. The Veteran noted occasional absence from work and impaired productivity due to headache pain. in In June 2019, the Board granted a compensable evaluation for the Veteran's service-connected headaches. CAVC ruled to set aside the Board's prior decision and the matter was returned to the Board for further development and adjudication. The Board has thoroughly reviewed the claims file and finds that the Veteran's worsening symptoms should be assessed and that the Veteran is entitled to a new VA examination. While further delay is regrettable the Board finds that a new VA examination will provide information regarding the Veteran's worsening symptoms to better assess the claim. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). (the Board must ensure that the record is adequate to rate a disability when a claimant alleges that the disability has worsened). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician to assess the Veteran's lumbar spine disability and reconcile the differing opinions between prior VA examiners and the Veteran's private physician. If the examiner determines whether a physical examination is necessary to provide the requested opinions such should be scheduled. The examiner must address the following questions: a. Is the Veteran's lumbar spine disability at least as likely as not (i.e., to a 50 percent or greater degree of probability) caused by or related to an in-service event or injury incurred in-service. In forming his or her opinion, the examiner is asked to explicitly consider the Veteran's lay statements of record and the opinion of the Veteran's private physician dated June 14, 2021. The examiner is also asked to provide an opinion as to the nature and etiology of the Veteran's lumbar spine disability. Please reconcile the opinions of the May 2019 and December 2019 VA examiners with the June 2021 opinion provided by the Veteran's private physician. 2. Obtain a new VA examination to determine the severity of the Veteran's service-connected migraine headaches. The examiner is asked to specifically consider the Veteran's lay statements, reports of frequency of headaches, reports of severity of headaches, and the Veteran's lost time from work due to headache pain. The examiner is asked to address frequency and intensity and provide an opinion as to whether the Veteran has prostrating attacks. 3. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.