Citation Nr: 1761169
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 10-49 302 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
1. Entitlement to service connection for a low back condition.
2. Entitlement to service connection for headaches.
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
S. Schick, Associate Counsel
The Veteran served on active duty from April 1987 to May 1990 and from February 27 to February 28, 1991.
This appeal arises to the Board of Veterans’ Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that the Veteran filed an October 2009 claim for entitlement to service connection for low back condition and headaches and in a January 2010 rating decision his claims were denied. In a February 2010 Statement in Support of Claim, the Veteran indicated that he was “re-filing” his denied claims and submitted new and relevant evidence. Thereafter, the Veteran submitted a March 2010 notice of disagreement (NOD). The Board notes that in a March 2010 rating decision, the RO characterized the issues as a February 2010 claim to reopen previous claims of service connection for lower back condition and service connection for headaches and continued the previous denials. However, as noted previously, the Veteran filed a timely NOD with the January 2010 rating decision and therefore, the January 2010 rating decision did not become final. As such, despite the RO’s later characterization of the issues as a claim to reopen previously denied claims for service connection, the issues actually stems from the original service connection claim filed in October 2009 and will be evaluated as an original claim accordingly.
In October 2013, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. This hearing was before a now-retired judge. Although given the opportunity to request another hearing, no request was received.
In a February 2017 rating decision, the RO granted service connection for right knee meniscal and anterior cruciate tear with osteoarthritis, also claimed as a right knee condition and osteoarthritis. As this was a grant of full benefits, the issue is no longer before the Board on appeal.
The record reflects that after the final Supplemental Statement of the Case (SSOC) additional evidence has been associated with the claims file. No subsequent SSOC was issued, but this is not necessary because the Veteran waived initial review of the evidence by the Agency of Original Jurisdiction (AOJ) in accordance with 38 C.F.R. § 20.1304 (2017).
In October 2013 and September 2016 the Board remanded the appeal for additional development. These matters are addressed in the REMAND portion of the decision below and are again, REMANDED to the AOJ.
In September 2016, the Board remanded the issue of service connection for headaches for further development. The Board noted that the March 2014 VA examiner diagnosed the Veteran with tension headaches, bioccipital and noted that the STRs showed that the Veteran was treated once or twice in service for headaches, which were suspected to be related to a sinus disorder, but imaging studies of the sinuses were normal. The examiner indicated that he was unable to associate the Veteran’s current headaches to those experienced in service.
The Board indicated that STRs show that the Veteran’s complaints of headaches were in fact associated occipital complaints, that is, pain in his eyes. Additionally, in 1989, he reported a history of headaches having onset two years earlier. Significantly, while a sinus problem was indeed suspected, a clinical assessment of tension headaches versus sinusitis was noted, with the latter subsequently being ruled out by imaging studies. The Board determined an addendum opinion was needed on remand.
Thereafter, the Veteran was afforded a March 2014 VA headaches examination and the report indicated the Veteran reported headaches once or twice in military service and they were suspected to be sinus headaches. They were suspected to be sinuses, but the x-ray of the sinuses were normal. He reported headaches in December 2009 to a provider and headaches. The examiner opined that he could not link the Veteran’s headaches to his headaches in military service and explained that bioccipital headaches were different than the headaches he reported once or twice in the military that were bitemporal headaches.
The Veteran was also afforded an October 2016 VA headaches examination and the examiner indicated that the Veteran reported having headaches symptoms for several years and denied specific injury. The examiner opined that the Veteran’s current headaches are less likely than not related to the headache noted during his time in service and explained that STRs documented a single episode of headache, thought likely to be due to his chronic sinus issues and the headache distribution for a sinus headache (frontal) versus that of his current headache symptoms (occipital) are not consistent to support service connection.
In a November 2016 VA examination note, the VA examiner indicated that the Veteran was seen rarely for headache in military service, and it was suspected to be a sinus type of headache. In December 2009, there was an assessment by mental health triage and the report indicated headaches, level 7, without other qualifications. The diagnosis of headaches was never incorporated to the problem list at the VA Medical Center. There is no other mention of headache. The headaches he reported to this examiner previously in March 2014, were mostly bi-occipital tension headaches, anatomically on the opposite side of the sinus headache. The examiner opined that, considering this, he could not link the present complaint of tension headaches to his headaches in military service.
In a March 2017 Addendum opinion, the October 2016 VA examiner indicated that there is no inconsistency in her October 2016 and the November 2016 VA examiners’ headache opinions and she explained that both opinions determined that the Veteran’s current headache symptoms are not consistent with the type of headache noted during his time in service. His current headache symptoms are consistent with tension-type headaches, while those noted during his time in service for sinus headaches. These are unrelated syndromes. There is also no evidence of the onset of his current headache symptoms within one year of separation from service.
The Board finds that a remand is again warranted in order to address the Veteran’s STRs which noted that he was assessed with “headache R/O eye problem” and an assessment of “tension headaches” versus sinusitis. Moreover, the Veteran is competent and credible to report symptoms of headaches in service and since service, and these symptoms, along with the STRs that documented possible tension headaches and occipital pain associated with headaches must be addressed on remand.
In September 2016, the Board also determined a remand was warranted because the April 2014 VA back examination report did not include an adequate rationale regarding the onset of the Veteran’s back symptoms in service due to Airborne training or within one year of service.
Thereafter, the October 2016 VA back examiner indicated that the Veteran reported a gradual onset of his lower back pain several years ago with increased severity. The examiner opined that the Veteran’s current lumbar spine symptoms are less likely than not related to his military service and explained that STRs are silent for lower back injury and/or complaints and his lumbar imaging suggested a chronic degenerative etiology for his symptoms. In a March 2017 Addendum opinion, the VA examiner indicated that there is no evidence to support an onset of lower back pain within one year of service. The Board notes that no supporting rationale was provided. As such, the Board finds that a remand is again warranted.
Accordingly, the case is REMANDED for the following action:
1. Obtain a VA addendum opinion from a suitably qualified VA examiner concerning the nature and etiology of the Veteran’s headaches. The claims file must be made available to the examiner for review and the examiner must indicate that the review was completed.
(a) The examiner should provide an addendum opinion that addresses whether it is at least as likely as not (a 50 percent or greater probability) that any headache disorder had its onset in active service or was caused by active service, or had onset within a year of separation from active service.
(b) In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding the incurrence of headaches and the recurrence of symptomatology. The examiner should specifically address the Veteran’s STRs documenting that he was assessed with “headache R/O eye problem” and an assessment of “tension headaches” versus sinusitis.
(c) The examiner should provide a complete rationale and explanation of the basis for any opinion provided.
2. Obtain a VA addendum opinion from a suitably qualified VA examiner concerning the nature and etiology of the Veteran’s low back disability, to include lumbar degenerative joint disease (DJD), lumbar facet arthropathy, and lumbar degenerative disc disease (DDD). See April 2014 and October 2016 VA back examination reports. The claims file must be made available to the examiner for review and the examiner must indicate that the review was completed.
(a) The examiner should provide an addendum opinion that addresses whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disability, to include lumbar DJD, lumbar facet arthropathy, and lumbar DDD had its onset during the Veteran’s active service or was caused by his active service.
(b) The examiner is also asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disability arose within a year of separation from active service.
(c) In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding the incurrence of his low back disorders and the recurrence of symptomatology. The examiner should specifically address the Veteran’s lay statements regarding the onset or aggravation of symptoms during service, to include during Airborne training.
(d) The examiner should provide a complete rationale and explanation of the basis for any opinion.
3. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a SSOC. Allow an appropriate period of time for response.
The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).