Citation Nr: 18154148
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-15 251
DATE:	November 29, 2018
ORDER
Entitlement to service connection for a low back disability is granted.
Entitlement to service connection for a depressive disorder is granted.
Entitlement to service connection for obstructive sleep apnea is granted.
Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.
Entitlement to an effective date prior to December 13, 2011, for the grant of service connection for a comminuted open fracture of the left tibia with a shorter left leg is denied.
Entitlement to an effective date prior to December 13, 2011, for the grant of service connection for tinnitus is denied.
FINDINGS OF FACT
1. The competent and probative evidence of record demonstrates that the Veteran’s low back disability is secondary to his service-connected comminuted fracture of the left tibia with shortened left leg.
2. The competent and probative evidence of record demonstrates that the Veteran’s depression is secondary to his service-connected comminuted left tibia fracture with shortened left leg, right upper extremity scars, and low back disability.
3. The competent and probative evidence of record demonstrates that the Veteran’s obstructive sleep apnea is secondary to his service-connected comminuted left tibia with shortened left leg, right upper extremity scars, low back disability, depression, and medication for his service-connected physical disabilities.
4. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code 6260.
5. The Veteran’s disability picture for his service-connected tinnitus is contemplated by the Rating Schedule, such that the assigned schedular evaluation is adequate.
6. On December 13, 2011, VA received a claim for, among other disabilities, entitlement to service connection for a left leg disability and tinnitus; there is no evidence that the Veteran filed a formal or informal claim for a left leg disability or tinnitus prior to that date.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a low back disability have been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017).
2. The criteria for entitlement to service connection for depressive disorder have been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017).
3. The criteria for entitlement to service connection for obstructive sleep apnea have been met.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017).
4. The criteria for a disability rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2017).
5. The criteria for an effective date prior to December 13, 2011, for the grant of service connection for a comminuted open fracture of the left tibia with a shorter left leg have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.155(a) (2011); 3.400 (2017).
6. The criteria for an effective date prior to December 13, 2011, for the grant of service connection for tinnitus have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.155(a) (2011); 3.400 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1970 to January 1974.
Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein.  The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked.  See Allday v. Brown, 7 Vet. App. 517, 527 (1995) (finding that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed).
Service Connection Claims
Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder.  38 C.F.R. § 3.310(a).  Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  38 C.F.R. § 3.310(b).
In general, in order to prevail on the issue of service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
1. Entitlement to service connection for chronic lumbar pain (claimed as a back condition)
The Veteran is claiming service connection for a lumbar spine disability, which he believes began during or is etiologically related to his active duty service.  He is also claiming secondary service connection, alleging his low back disability was caused or aggravated by his service-connected comminuted open left tibia fracture with shorter left leg.  
The Veteran was afforded an August 2013 VA examination to determine the etiology of his low back disability, and the examiner provided a negative opinion, finding that the Veteran’s shorter left extremity played no role in his low back disability.  However, the August 2013 VA examiner failed to provide a rationale for this conclusion, and therefore, it is not probative.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary medical opinions”).
The AOJ obtained an October 2013 VA addendum medical opinion.  The medical professional who provided the opinion reviewed the Veteran’s claims file in entirety and concluded that the Veteran’s currently diagnosed lumbar spine degenerative disc disease was less likely than not due to his active duty service and less likely than not secondary to his abnormality of the service-connected left leg, as the examination showed only a leg discrepancy of one inch shorter on the left than the right, which the examiner indicated would be “minimal.”  In support of this opinion, the medical professional cited to accepted medical literature, which discussed the prevalence of back pain and disabilities in the general population.  Significantly, none of the cited medical literature discussed any relationship between a shortened lower extremity and back disabilities or pain.
The record contains an April 2018 private opinion from H.S., M.D. which indicates that it is as likely as not that the Veteran’s low back disability was aggravated by his antalgic gait caused by his service-connected comminuted open left tibia fracture with shorter left leg.  Dr. H.S. reviewed the Veteran’s claims file in its entirety, interviewed the Veteran, and reviewed accepted medical literature.  Dr. H.S. indicated that with limping and an antalgic gait, there is a shift in the body’s center of gravity toward the affected leg, which results in the lateral bending of the trunk toward that side.  When weight is transferred to the good leg, the repositioning of the center of gravity in the midline is in part due to the pull of the paralumbar and abdominal muscles.  The increased muscle pull then increases the force transmitted across the lumbar discs, facet joints, hip, knee, and ankle due to the mechanical leverage, which in turn causes or aggravates degenerative changes of the disc and facet joints. 
Based on the foregoing, the Board finds that the most probative opinion of record is the April 2018 private opinion.  This is so because the opinion directly references medical literature pertinent to the Veteran’s contentions; although the October 2013 opinion considered the Veteran’s contentions regarding his shorter left lower extremity, none of the cited medical literature in support of this opinion discussed the relationship between shorter lower extremities and back disabilities.  
Based on the foregoing, the Board finds that service connection for a low back disability is warranted.
2. Entitlement to service connection for a mental health condition
The Veteran is claiming service-connection for a mental health condition, diagnosed as depressive disorder, which he claims began during or is etiologically related to his active duty service.  He is also claiming secondary service connection and alleging his depressive disorder is caused or aggravated by his service-connected physical disabilities.
In a January 1974 report of medical history, the Veteran reported that his mother was ill and he lost his fiancée, which resulted in depression and anxiety.
At an April 2015 VA examination, the examiner diagnosed depressive disorder.  The Veteran reported a long history of depression symptomatology which he indicated “seemed to emerge initially in 1971.”  During that time the Veteran received a letter informing him that his girlfriend broke up with him; he indicated this caused him depression and excessive worry because he reportedly did not know what he was going to do in the civilian world after discharge.  He also mentioned feeling depressed due to lower back pain.  The examiner provided a May 2015 opinion finding the Veteran’s reported depression symptoms during service were less likely than not related to his current depression diagnosis, reasoning that the Veteran did not seek mental health treatment for depression until a few decades after service, and at that time the depression was related to job distress.  No opinion was provided regarding secondary service connection.
In support of his claim, the Veteran submitted a February 2018 statement regarding his psychological symptoms and onset.  He indicated that prior to service he was outgoing and active and did not suffer from any mental health problems.  He stated that he was injured in a motorcycle accident during service in February 1972, which resulted in most of the physical limitation and impairments he had today.  After that accident, during service, he stated he had physical, mental, and emotional problems that continued to worsen over time.  Upon release from active duty, the Veteran returned home and indicated that his anxiety, anger, and depression which began to worsen.  The Veteran also stated that his service-connected physical disabilities are painful and limit his everyday functions, limiting what he is able to do and contributing to low self-worth.
The Veteran submitted a private medical examination report and opinion from H.H., Ph.D., HSSP, dated March 2018, who opined, in part, that the Veteran suffers from unspecified depressive disorder which more likely than not is aggravated by his painful and bothersome service-connected physical disabilities.  In support of this opinion, Dr. H.H. cited to medical literature finding a causal relationship between physical disabilities, pain, tinnitus, and depression.  The Board finds that this opinion is probative because it was based on an examination of the Veteran, included a review of the claims file and the Veteran’s medical history, and included a rationale for the conclusion reached.  There are no conflicting opinions of record regarding secondary service connection for depression.
Based on the foregoing, considering both the lay and medical evidence of record, the Board finds that service connection for a depressive disorder, as secondary to the Veteran’s service-connected physical disabilities, is warranted.
3. Entitlement to service connection for a sleep condition
The Veteran is claiming service connection for sleep apnea, to include as secondary to his service-connected physical disabilities, depressive disorder, and medication he takes for pain for his physical disabilities.
In support of his claim, he submitted an April 2018 private medical opinion from H.S., M.D., which indicated that the Veteran’s sleep apnea was aggravated by his service-connected comminuted left tibia fracture with shorter leg, right arm scars, medication for pain for his service-connected physical disabilities, and his depressive disorder.  This opinion was based on a review of the claims file, an interview with the Veteran, and a review of medical literature.  Dr. H.S. cited to medical literature indicating that fragmented sleep due to mental health disorders and physical disabilities aggravates obstructive sleep apnea as it further disrupts REM and restorative sleep.  Additional literature indicated that opiates and muscle relaxers (which the Veteran takes for pain management of his service-connected physical disabilities) are well known respiratory depressants, and that sedative drugs suppress the central nervous system which results in increased respiratory pauses, irregular breathing, and shallow breaths.
Significantly, the AOJ did not afford the Veteran a VA examination with respect to his claim and there are no conflicting medical opinions of record.
Based on the foregoing, the Board finds that service connection for obstructive sleep apnea is warranted.
Increased Rating Claim
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2017).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).
In cases where the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for a service-connected disability are inadequate, an extra-schedular rating may be provided.  See 38 C.F.R. § 3.321.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.”  38 C.F.R. § 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”).  When the Rating Schedule is inadequate to evaluate a claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step which is a determination of whether, to accord justice, the claimant’s disability picture requires the assignment of an extra-schedular rating.  Id.
4. Entitlement to a disability rating in excess of 10 percent for tinnitus
The Veteran is asserting that he should be awarded a disability rating in excess of 10 percent for his service-connected bilateral tinnitus.
Tinnitus is evaluated under 38 C.F.R. § 4.87, Diagnostic Code 6260.  This regulation provides that only a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  See 38 C.F.R. § 4.87, Diagnostic Code 6260.  The Veteran has already been assigned the maximum 10 percent rating under Diagnostic Code 6260, and there is no legal basis upon which to award a higher or separate schedular evaluation.
The Board has considered whether an extra-schedular rating is warranted and recognizes that the Veteran contends he experiences headaches due to his tinnitus, which are not contemplated in the Rating Schedule pertaining to the criteria used to evaluate tinnitus.  In this regard, the Board notes that there is no evidence that the Veteran’s headaches present an exceptional disability picture with other related factors such as frequent periods of hospitalization or marked interference with employment.  See 38 C.F.R. § 3.321(b)(1).  Accordingly, referral for extraschedular consideration for tinnitus is not required.  See id.
Accordingly, a disability rating in excess of 10 percent for tinnitus is not warranted.  The Board has considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the Veteran’s claim, it is not applicable.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 
Earlier Effective Date Claims
In general, the effective date of an award based on an original claim shall the date VA received the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2).  If a claim is received within one year after separation from service, the effective date shall be the day following separation from active service.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2).  
During the time in question, a “claim” was broadly defined to include formal or informal communication requesting a determination of entitlement, evidencing a belief in entitlement to a benefit, or intending to apply for benefits.  38 C.F.R. §§ 3.1(p), 3.155(a) (2011).


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5. Entitlement to an effective date prior to December 13, 2011, for the grant of service connection for a comminuted open fracture of the left tibia with a shorter left leg
6. Entitlement to an effective date prior to December 13, 2011, for the grant of service connection for tinnitus
The Veteran is claiming entitlement to an effective date prior to December 13, 2011, for the grant of service connection for a comminuted open fracture of the left tibia with a shorter left leg and tinnitus.  Significantly, although the Veteran’s representative submitted materials in support of other claims on appeal in May 2018, neither the Veteran nor his representative have set forth any arguments for why they feel earlier effective dates are warranted for the below issues on appeal.
On December 13, 2011, the Agency of Original Jurisdiction (AOJ) received the Veteran’s claim for, among other disabilities, entitlement to service connection for a left leg disability and tinnitus.
In an August 2013 rating decision, the AOJ granted service connection for a comminuted open fracture of the left tibia with a shorter left leg (previously rated separately, now rated as one disability) and assigned an effective date of December 13, 2011, the date of receipt of the Veteran’s claim.
The Veteran has not asserted and there is no evidence of record that he filed a formal or informal claim for benefits for a left leg disability or tinnitus prior to December 13, 2011.  VA regulations are clear and indicate that generally, the effective date of a claim is the date the application was received or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2).  To the extent to which he seeks an earlier effective date based on the presence of symptoms, the Court of Appeals for Veterans Claims has held that the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability.  See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (“[M]ere receipt of medical records cannot be construed as an informal claim.”); see also Brannon v. West, 12 Vet. App. 32, 35 (1998) (“[T]he Board is not required to conjure up issues that were not raised by the appellant.”).
Absent evidence that the Veteran filed a claim for benefits prior to December 13, 2011, earlier effective dates for the grant of service connection for a comminuted left tibia fracture with shorter left leg and tinnitus are not warranted.  As the preponderance of the evidence weighs against the Veteran’s claims, they must be denied.  See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 56.
VA’s Duties to Notify and Assist
Given that the Board has taken favorable action by granting the Veteran’s claims for service connection for a low back disability, depressive disorder, and obstructive sleep apnea, no discussion regarding VA’s duties to notify and assist is required.
With respect to the Veteran’s claims for an increased rating for tinnitus and earlier effective dates for the grant of service connection for a comminuted left tibia fracture and shorter left leg and tinnitus, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).
VA’s duty to notify was satisfied by a letter dated January 2012.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  Where the underlying claim for service connection has been granted and there is disagreement regarding downstream issues, such as an effective date of service connection or an initial assigned rating, the claim has been substantiated and there is no need to provide additional notice concerning the downstream issues.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007).
The duty to assist the Veteran has also been satisfied in this case.  The AOJ has obtained all identified records.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Veteran was provided a VA examination in connection with his tinnitus claim in July 2013.   Neither the Veteran nor his representative have asserted that the Veteran’s condition has increased in severity; likewise, treatment records do not document any treatment for or complaints of symptoms relating to this disability.  Therefore, the July 2013 VA examination is adequate to reflect the current severity of the Veteran’s disability and the Board finds a more recent examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (holding that the mere passage of time does not require VA to provide a new medical examination).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.
REMANDED ISSUES
The Veteran’s service treatment records reflect he was in a motorcycle accident on February 28, 1972, which resulted in a closed compound fracture of the left tibia and lacerations of the right arm.  The Veteran was treated at a private facility, American River Hospital, in Carmichael, California, and was then transferred to Oakland Naval Hospital one day after the accident.  There is no evidence that the Veteran’s records from the private hospital facility have been attempted to be obtained, and this must be done on remand.
Additionally, while the record contains clinical narrative summaries from the Veteran’s treatment at the Naval Hospital in Oakland, California from February 28, 1972, through April 17, 1972, and from May 26, 1972, through August 3, 1972, his complete treatment records from his hospital care are not associated with the evidence of record and there is no indication that the AOJ has attempted to obtain them.  Clinical records, such as hospitalization records from a military facility, are retired to the National Personnel Records Center (NPRC) for storage; they are kept separately from a Veteran’s service treatment records and must be requested separately.  On remand, the AOJ must attempt to obtain these records from the NPRC or any other relevant records repository.  If these records are unavailable or unable to be obtained, the AOJ must prepare a formal Memorandum of Unavailability and associate it with the evidence of record.  The Veteran and his representative must also be informed of the unavailability of these records in accordance with VA regulation.
The Board notes that it does not appear that the Veteran receives medical treatment through the VA Healthcare System.  The only records for medical treatment associated with his claims file are private records from Kaiser Permanente.  On remand, the AOJ should obtain any outstanding VA treatment records, if they exist.  Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim).  Additionally, the AOJ should contact the Veteran and request that he provide VA with a medical authorization to allow the AOJ to obtain any outstanding private medical records on his behalf or, in the alternative, he should submit those records to the AOJ himself.
Given that the Veteran’s outstanding hospitalization records may substantiate his claims for service connection, these issues must be remanded.
1. Entitlement to service connection for right shoulder impingement syndrome (claimed as a right arm condition)
2. Entitlement to service connection for a right hand condition
In his October 2014 application for compensation benefits, the Veteran claimed entitlement to service connection for, among other disabilities, a right arm condition and a right hand condition.
At an April 2015 VA shoulder and arm examination, the examiner diagnosed right shoulder impingement syndrome.  The Veteran reported that the onset of symptoms was in 1972 following a motor vehicle accident where the rearview mirror was stuck on his right upper arm and cut the nerves and muscles; he indicated he received ten sutures at that time.  He described symptoms as numbness to the right arm below the scar to the right hand and indicated that he dropped things and was unable to lift heavy objects.  The examiner determined it was less likely than not that the Veteran’s right shoulder disability was due to his active service, reasoning that while service treatment records reflect the Veteran was seen during service with a complaint of arm pain after an arm wrestling event and diagnosed with a muscle spasm/pull, and that these conditions both affected the right arm, they were separate and unrelated, and given the length of time between the in-service injury and diagnosed condition, a pattern of chronicity was not established.
The Board finds that a remand is required in order to provide the Veteran with new examinations and obtain new opinions.  This is so because, as discussed above, the record does not contain the Veteran’s complete clinical records from his motor vehicle accident and hospitalization, and these records must be considered in an etiology opinion.  Notably, the April 2015 opinion of record does not address the well-documented motor vehicle accident.  
The Board acknowledges that the Veteran was not afforded a VA hand examination to determine the presence and/or etiology of any right hand condition.  However, given his statements at the April 2015 VA shoulder and arm examination that he has dropped objects with his right hand, as well as the evidence that he suffered right upper extremity injuries during service, the Board finds this meets the low threshold which requires VA to afford him an examination and obtain an opinion.  See McLendon v. Nicholson, 20 Vet. App. 79, 80 (2006).
Based on the foregoing, the Board finds examinations and opinions are required on remand.
3. Entitlement to service connection for high blood pressure
The record does not reflect any evidence that the Veteran has a current diagnosis of high blood pressure; moreover, the record does not reflect that the Veteran has received any medical treatment for any symptoms relating to high blood pressure.  Further, the Veteran’s service treatment records do not document any symptoms of or treatment for high blood pressure.
The Board urges the Veteran to submit medical or lay evidence regarding this claim while the case is in remand status.  On remand, if and only if, the evidence reflects that an examination is warranted, one must be provided.  38 C.F.R. § 3.159(c)(4) (2017); see also McLendon, 20 Vet. App. at 80.
4. Entitlement to service connection for headaches
In a January 1974 report of medical history, the Veteran reported a head injury and loss of memory or amnesia.  The physician noted on that form that the Veteran was involved in a dock car accident with a concussion in June 1972 and was seen at McClellan Air Force Base.  The Veteran denied residuals aside from segmental amnesia.  As mentioned above, clinical records, such as hospitalization records, are stored separately from a Veteran’s service treatment records.
Additionally, the Veteran has raised the issue of secondary service connection.  In materials submitted by the Veteran and his representative in May 2018, they raised the issue of secondary service connection, alleging that the Veteran’s headaches were caused or aggravated by a mental health condition, tinnitus, and chronic back pain.  In support of his claim, the Veteran submitted articles regarding the relationship between headaches and chronic back pain, mental health disorders, and tinnitus.  The record also contains an opinion from H.S., M.D. which indicates that it is at least as likely as not that the Veteran’s headaches began in service and are caused and aggravated by his left tibia fracture, tinnitus, lumbar spine disability, and depressive disorder.  Dr. H.S. indicated that these conditions are “well-known contributors” to headaches but could not determine which conditions contributed to the Veteran’s headaches.  The Veteran reported to Dr. H.S. that his headaches began in service and since then have increased in frequency and severity to the point where he experiences near constant headache pain.  However, the Board finds that the opinion from Dr. H.S. does not contain an adequate rationale as it is cursory, not fully explained, and does not cite to any medical literature.  The fact that something is a “well-known” contributor to another disorder does not equate to medical causation.
Based on the foregoing, the Board finds a remand is required in order to obtain medical opinions regarding the etiology of the Veteran’s headaches.  See 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon, 20 Vet. App. at 80.
5. Entitlement to a disability rating in excess of 10 percent for comminuted open fracture of the left tibia with a shorter left leg
6. Entitlement to a compensable disability rating for superficial and nonlinear scar of the right upper extremity
7. Entitlement to a disability rating in excess of 20 percent for painful scars of the right upper extremity
8. Entitlement to a compensable disability rating for scars of the right upper extremity
The Board notes that in considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  
Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).
Given that the Board does not have a complete picture of the medical history and treatment that lead to the Veteran’s service-connected disabilities, the Board finds a remand is required.
Additionally, given that the last examinations performed for the purposes of evaluating the severity of the Veteran’s scars and comminuted left tibia fracture with shorter leg were conducted in April 2015, the Board finds new examinations would be helpful on remand.
9. Entitlement to an effective date prior to October 1, 2014, for the grant of service connection for a superficial and nonlinear scar of the right upper extremity
10. Entitlement to an effective date prior to April 7, 2015, for the grant of service connection for painful scars of the right upper extremity
Given that service connection for a superficial scar and nonlinear scar of the right upper extremity and service connection for painful scars of the right upper extremity was granted in the course of the Veteran’s claim for an increased rating for scars, the Board finds these issues are inextricably intertwined with the increased rating claims on appeal for these issues.  Therefore, they must be remanded and decided together.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 
11. Entitlement to TDIU is remanded
In a July 2013 statement, the Veteran indicated that his back condition caused him to medically retire from his job with the State of California, Department of Corrections and Rehabilitation.  Given that in the instant decision, the Board has granted service connection for a low back disability, the Board finds that the Veteran’s employment records are directly related to his claim for entitlement to TDIU; therefore, they must be requested on remand.
The matters are REMANDED for the following action:
1.  Contact the Veteran and request that he complete and return a signed authorization to allow VA to attempt to obtain identified private medical records on his behalf, to specifically include American River Hospital in Carmichael, California, and any other identified records.
Request that he also complete the appropriate authorizations to allow VA to attempt to obtain all employment records pertaining to his employment and medical retirement with the State of California, Department of Corrections and Rehabilitation.
If the Veteran submits any authorization that is insufficient for further action, he should be notified, and any such notification should be properly documented in the claims file.
Upon receipt of any valid authorization, VA must attempt to obtain any identified records in accordance with VA regulation.  If the Veteran submits any authorization which is incomplete or otherwise invalid, he must be informed of such and requested to submit a valid authorization.
2. Contact the appropriate records repositories to attempt to obtain the Veteran’s outstanding clinical records from:
(a.) Oakland Naval Hospital, dated February 1972 through August 1972; and
(b.) The appropriate hospital at McClellan Air Force Base dated 1972.
3. Following completion of steps 1-2 above, afford the Veteran the appropriate VA examinations to determine the etiology of his right shoulder impingement syndrome AND any right hand disability found.  The examiner must be provided with and conduct a complete review of the claims file.  The examiner must also obtain from the Veteran and record in the examination report a complete history of the onset and continuity of symptomatology.
Following a complete review of the evidence of record, and with consideration of the Veteran’s lay statements, the examiner is requested to provide the following opinions:
(a)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s right shoulder impingement syndrome began during or is etiologically related to his active duty service, to include as due to a February 1972 motor vehicle accident.  Why or why not?
(b)	Determine whether it is at least as likely as not (50 percent probability or higher) that any right hand disability found began during or is etiologically related to the Veteran’s active duty service, to include as due to a February 1972 motor vehicle accident.  Why or why not?
A complete rationale for all opinions rendered must be provided.  If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so.
4. Following completion of steps 1-2 above, afford the Veteran the appropriate examination to determine the etiology of his headaches.  The examiner must be provided with and conduct a complete review of the claims file.  The examiner must also obtain from the Veteran and record in the examination report a complete history of the onset and continuity of symptomatology.
Following a complete review of the evidence of record, and with consideration of the Veteran’s lay statements, the examiner is requested to provide the following opinions:
(a)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches began during or are etiologically related to his active duty service.  Why or why not?  Consideration must be given to a documented June 1972 head injury.
(b)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches were caused by his service-connected tinnitus.  Why or why not?
(c)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches were aggravated by his service-connected tinnitus.  Why or why not?
(d)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches were caused by his service-connected low back disability.  Why or why not?
(e)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches were aggravated by his service-connected low back disability.  Why or why not?
(f)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches were caused by his service-connected depressive disorder.  Why or why not?
(g)	Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s headaches were aggravated by his service-connected depressive disorder.  Why or why not?
A complete rationale for all opinions must be provided.  If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so.
5. Following completion of steps 1-2, afford the Veteran the appropriate examination(s) to evaluate the current severity of his service-connected comminuted left tibia fracture with shorter left leg.  The examiner must obtain from the Veteran and document in the examination report all functional impairment caused by this disability.
6. Following completion of steps 1-2, afford the Veteran the appropriate examination(s) to evaluate the current severity of his service-connected right upper extremity scars.  The examiner must obtain from the Veteran and document in the examination report all functional impairment caused by this disability.
7. Following completion of steps 1-6 above, conduct any additional development deemed necessary by the record to include, if warranted, affording the Veteran additional VA examinations or obtaining medical opinions.  See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).
8. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim.  See 38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record.
9. Then, the Veteran’s claims must be readjudicated.  If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.
 
MICHAEL MARTIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jessica O'Connell, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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