—————————————————- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 12-3595 DALE E. NIKKILA, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Judge: Veteran Dale E. Nikkila appeals through counsel a November 20, 2012, Board of Veterans’ Appeals (Board) decision denying an increased disability evaluation in excess of 30% for cephalgia—that is, headaches—and entitlement to a total disability evaluation based on individual unemployability (TDIU). Record (R.) at 3-17. This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single- judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court will set aside the November 2012 Board decision and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Nikkila served on active duty in the U.S. Marine Corps from June 1985 to June 1989. R. at 143. In December 1990, the VA regional office (RO) granted service connection for cervical strain with headaches, resulting from an October 1988 in-service motor vehicle accident (MVA); rated him byanalogyunderDiagnostic Code(DC)8100 (migraines); and assigned a 10% evaluation. R. at 2518-23; see 38 C.F.R. § 4.124a, DC 8100 (2013).
In the following years, the veteran underwent treatment at a VA medical center. In a March 2000 VA treatment record, Mr. Nikkila stated that he thought his headaches were “worse,” in that he was currently suffering from a headache lasting three days; he described his headache pain as “constant.” R. at 1424. An October 2002 treatment addendum remarked that the veteran continued to have headaches,”whicharenothingnew”(R.at999),and a December 2002 annual physical report remarked that Mr. Nikkila “had a headache rated at approximately a 5 [out of 10].” R. at 996. In January 2003, he was seen at a VA urgent care clinic for “chronic” headaches that he characterized as “constant.” R. at 983. In a February 2003 VA progress note, Mr. Nikkila stated he had suffered from headaches for “many, manyyears,” that before the previous fall theywere intermittent but now they were “more constant,” and that the intensity varied during the course of the headache, which would begin in the area of the temples and become more diffuse. R. at 980- 82. In an addendum, the examiner remarked that Mr. Nikkila stated he suffers headaches 3 days a week, 24 hours at a time. R. at 983. Meanwhile, in January 2003, the veteran sought an increased evaluation for cephalgia. R. at 2202. An April 2003 VA neurological disorders examination report recorded complaints of daily “needle like pains in both sides of his posterior neck in the paraspinal muscular areas. . . . since November of 2002.” R. at 2166. Associated with neck pain were steady headaches in both temples occurring daily and lasting “hours.” Id. Pain intensity was normally 2 out of 10, but flareup pain reached 8 or 9 out of 10; flareups occurred about 3 times per week and lasted 2 to 6 hours. Id. At the time, the veteran did “not describe any episode where he had to stay at home because of neck pain or headache problems.” R. at 2167. The examiner diagnosed “[c]hronic cervical muscle strain with occipital cephalgia.” R. at 2168. In June 2003, the RO separated cephalgia from cervical muscle strain, evaluated each condition individually, and continued the 10% evaluation for cephalgia, denying a 30% evaluation because the veteran did not have “ prostrating attacks averaging once a month.” R. at 2157. The veteran was involved in another MVA in September 2003. R. at 2060. He sustained a concussion and a fractured left clavicle and experienced “some residual headaches and cognitive problems . . . expected to resolve.” R. at 2060. Subsequent computed tomographyhead scan showed “an equivocal area of tiny punctate hemorrhage in the left frontal cortex.” R. at 2057; see also R. 2
at 1096, 1224-38 (September 2003 hospital and followup records). An April 2004 private medical examination report noted that Mr. Nikkila lost consciousness during the September 2003 MVA and “since then has been complaining of headaches, occipital and frontal region, visual problems with occasional blurred vision and transposing words and letters, occasional slurred speech.” R. at 1258. In March 2005, Mr. Nikkila sought an increased evaluation for his service- connected disabilities. R. at 2076-77. An April 2005 VA examination report recorded Mr. Nikkila’s headaches symptoms since the September 2003 MVA: daily pain of 2 or 3 out of 10 and flareups of 6 to 8 out of 10, occurring 3 times in the last 6 months and lasting days. R. at 2051. The RO denied an increased evaluation in June 2005, determining that his headaches did not meet the 30% criteria and that his cognitive problems were due to his 2003 MVA. R. at 2040-48. Mr. Nikkila disagreed with this decision and appealed to the Board. R. at 1985, 2018-35, 2038. Whilehis appeal waspending,Mr.Nikkilasubmittedto theBoardadditionalmedicalrecords and a September 2005 Social Security Administration (SSA) decision determining that neck and back pain, headaches, and memory problems all qualified as severe impairments that limited his ability to work and qualified him for SSA disability compensation. R. at 1733-1820. In an August 2007 decision, the Board denied an increased evaluation for cephalgia (R. at 1665-78), but on appeal this Court, pursuant to a joint motion to remand, set aside the Board decision and remanded the matter for VA to obtain additional medical records (R. at 1579-86). See R. at 1558-64 (September 2009 Board order remanding matter for further development). VA treatment records from 2008 and 2009 were thereafter associated with the claims file. R. at 1422-1557. One such record from July 2008 noted Mr. Nikkila’s statement that his “[h] eadaches never go away” but “just vary in intensity.” R. at 1554. The veteran underwent a VA examination in November 2009. R. at 1373-75. The examiner noted Mr. Nikkila’s reports that he experienced “constant generalized headaches that involve the whole head,” which “started 6 to 6-1/2 years ago.” R. at 1373. The veteran reported having “constant, all-day pain” that sometimes reached 7 or 8 on a scale of 10 and caused nausea and difficulty concentrating. Id. The examiner diagnosed “[c]hronic daily headache” and observed that “[t]he veteran reports that these have become more problematic since his 2003 car accident.” R. at 1375. 3
After reviewing additionallysubmitted evidence and stating that it was resolving reasonable doubt in the veteran’s favor, the RO in March 2011 increased the veteran’s cephalgia evaluation from 10% to 30%, effective March 2005. R. at 684-95. Mr. Nikkila filed a Notice of Disagreement as to this decision and appealed to the Board. R. at 151, 619-25. In September 2011, the Board again remanded for additional development the cephalgia issue, as well as the issue of entitlement to TDIU,basedontheappearancethatMr.Nikkila’s headacheshadworsenedsincetheNovember2009 VA examination. R. at 587-608. More recent VA treatment records were associated with the claims file (R. at 282-402, 510-66), including a November 2011 VA neurology followup notation that stated: “Continued dailyheadaches. He has had them since the militarybut theywere not as frequent or as severe. They worsened significantly after 2003 when he was involved in a[n MVA].” R. at 519. Mr. Nikkila underwent another VA examination in May 2012. R. at 43-47. The examiner opined that the cause of the increased severity and frequency of the veteran’s headaches was the September 2003 MVA. R. at 46. In support of this opinion, the examiner stated that the 2003 VA examination showed that, prior to the MVA, cephalgia was “fairly well controlled.” Id. Since then, the examiner stated, the “headaches have gotten out of control” and noted that headaches occur on a daily basis and “frequently progress to a 7 or 8” on a pain scale of 10. Id. The examiner further noted that Mr. Nikkila had “a great deal of difficulty concentrating which is required for him to be gainfully employed.” Id. In an addendum, the examiner elaborated on the medical evidence of record, specifically quoting from the April 2003 VA examination. R. at 42- 43. The examiner then reiterated her opinion that any increase in headache frequency or intensity stemmed from the 2003 postservice MVA. R. at 43; see R. at 33-39 (RO’s continued denial of an increased cephalgia evaluation and entitlement to TDIU). IntheNovember2012decisiononappeal, theBoarddeniedanincreasedevaluation in excess of 30% for cephalgia and denied entitlement to TDIU. R. at 3-17. First, the Board found that the VA examinations of record were adequate to evaluate the claims. R. at 6-7. Next, after reviewing the medical evidence and Mr. Nikkila’s argument that “it is not possible to separate the level of severity of the headaches prior to the [2003 MVA] from the headaches following this accident,” the Board stated: “It is not disputed the [v]eteran has continuous headaches. It is significant to point out, 4
however,thattheVAexamineropined,followingtheFebruary2012VAexamination, the[v]eteran’s current headaches are directly related to the [2003 MVA], and may be distinguished from the headaches he had prior to it.” R. at 12. Although finding Mr. Nikkila credible and “competent to report symptoms he experienced, such as headaches,” the Board found that he was not competent to opine as to the medical cause of his worsened cephalgia. Id. (citing Espiritu v. Derwinski, 1 Vet.App. 492 (1992), and Routen v. Brown, 10 Vet.App. 183 (1997)). Finally, the Board denied TDIU, relying on the February 2012 VA examiner’s opinion that unemployability was attributable to the current headache condition, which was not associated with service- connected cephalgia. R. at 13-16. This appeal followed. II. ANALYSIS On appeal, Mr. Nikkila argues that the Board erred by failing to address—and by relying on the February2012 VA examiner’s opinion, which failed to address—” significant evidence”showing that service-connected cephalgia was not “under control” prior to the September 2003 MVA. Appellant’s Brief (Br.) at 11-24. He further argues that the Board improperly relied on the February 2012 VA medical opinion because that examiner noted that she had contacted the veteran’s treating neurologist, who confirmed that prior to the 2003 MVA Mr. Nikkila had not responded to headache treatment, but no evidence of the neurologist’s statement was contained in the record before the Board. Id. at 24-27. The Secretary disputes these contentions and otherwise argues the propriety of the Board’s decision. Secretary’s Br. at 8-26. For the following reasons, the Court finds that the Board offered inadequate reasons or bases for its decision, and agrees with Mr. Nikkila that the decision must be set aside. In cases involving the denial of an increased evaluation, the Court reviews the Board’s determination of the appropriate degree of disability as a finding of fact subject to the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). In this case, the Board did not address whetherMr. Nikkila’s present cephalgia symptoms meet the criteria for a higher evaluation under DC 8100. Rather, the Board denied an increased evaluation based on its factual finding that any increase in symptom severity is related to the 2003 postservice MVA, not to service or to service-connected cephalgia. See R. at 12. The Court 5
nevertheless reviews this finding of fact under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). As part of VA’s duty to assist, the Secretary must, in appropriate cases, provide a claimant with a thorough and contemporaneous medical examination. 38 U.S.C. § 5103A; see Green v. Derwinski, 1 Vet.App. 121, 124 (1991). An adequate medical opinion must be “ accurate and fully descriptive . . . , with emphasis upon the limitation of activity imposed by the disabling condition.” 38 C.F.R. § 4.1 (2013). It must be based on an accurate factual premise and on consideration of the veteran’s prior medical history and examinations and must describe the disability in sufficient detail so that the Board’s “‘evaluation of the claimed disability will be a fully informed one.'” Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green, 1 Vet.App. at 124); see also Floyd v. Brown, 9 Vet.App. 88, 93 (1996). In addition, the medical opinion “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). The Board’s finding regarding the adequacyof a medical examination is a finding of fact subject to the “clearly erroneous” standard of review. See D’Aries v. Peake, 22 Vet.App. 97, 103 (2008). “A factual finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). As with any finding on an issue of material fact and law presented on the record, the Board is required to support its findings with a statement of reasons or bases that enables a claimant to understand the precise basis for the Board’s decision and facilitates review in this Court. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for evidence that it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Although there is no reasons-and-bases requirement imposed on VA examiners, the Board may not simply accept and rely on a medical opinion that does not provide supporting rationale or describe the disability with the detail necessary to ensure that the Board’s “evaluation of the claimed disability will be a fully informed one.” Ardison, 6 Vet.App. at 407; see Gabrielson v. Brown, 6
7 Vet.App. 36, 40 (1994) (“The [Board] cannot evade [its] statutory responsibility merely by adopting [a medical examiner’s] opinion as its own, where, as here, the [ medical examiner’s] opinion fails to discuss all the evidence which appears to support appellant’s position.”). To support its factual findings and ultimate denial of an increased evaluation, the Board relied on the opinion of the February 2012 VA examiner.* R. at 12. In so doing, the Board failed to account for material evidence that favors Mr. Nikkila. For example, the 2012 VA examiner stated that before the 2003 MVA, Mr. Nikkila’s headaches “were fairly well controlled.” R. at 46. But the 2012 examiner actually quoted the April 2003 examination report to the effect that before the 2003 MVA, Mr. Nikkila was experiencing headaches “daily,” with a pain intensity of 4 to 5 out of 10 that lasted hours. R. at 42, 2166. Further, in April 2003 the veteran reported flareups that occurred 3 times per week, lasted 2 to 6 hours, and reached a pain intensity of 8 or 9 out of 10. Id. The headache symptoms recited in the April 2003 VA examination report, which were cited by the February 2012 VA examiner, appear to contradict the 2012 examiner’s opinion that before the 2003 MVA Mr. Nikkila’s headaches were well controlled. Neither the Board nor the February 2012 VA examiner discussed or explained this apparent contradiction. Nor did the February 2012 VA examiner explain her conclusion that the veteran’s headaches since the accident—which still occurred daily and “frequently progress[ed] to a 7 or 8” on a pain scale of 10—”have gotten out of control.” R. at 46. Mr. Nikkila was suffering from cephalgia on a daily basis both before and after the September 2003 MVA. Compare R. at 2166, with R. at 46. Pain intensity before the MVA would often reach 8 or 9 during the week whereas, after the MVA, pain would reach 7 or 8. Id. Reviewing such symptoms, it is not apparent how pre-MVA headaches were “ controlled” but post- MVA headaches were not. The Board failed to discuss this inconsistency and the examiner failed offer a rationale to support her bare conclusions concerning symptoms before the 2003 MVA being “fairly well[-]controlled” and the symptoms after the 2003 MVA being “out of control.” R. at 46. See Stefl, Floyd, and Ardison, all supra. * Contrary to the Secretary’s assertion (Secretary’s Br. at 10-11), although the Board generally cited medical opinions besides the February 2012 examiner’s, it is clear from the Board’s decision that it relied solely on that opinion to justify its determination that worsening of service-connected cephalgia was caused by a non-service-connected incident. See R. at 12. 7
Because the Board did not discuss this relevant favorable evidence, its reasons or bases for denying an increased evaluation are inadequate to permit Mr. Nikkila to understand the basis for its decision and to facilitate review in this Court. See Caluza and Gilbert, both supra. Thus, the Court will set aside the Board’s decision to deny an increased evaluation for service-connected cephalgia and remand that matter for the Board to address Mr. Nikkila’s argument and, if necessary, seek clarification from the February 2012 examiner. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (holding that remand is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”). On remand, the Board should also consider whether it properly evaluated the veteran’s competence. Although findingthatMr.Nikkilawas”competenttoreportsymptoms heexperienced, such as headaches,” the Board found that he was categorically not competent to opine as to the medical cause of his worsened cephalgia. R. at 12. The Board relied on Routen and Espiritu, both supra, for this proposition. Id. To the extent these cases suggest that lay evidence is categorically incompetent with respect medical issues, including causation, they have been overruled by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (both discussing when lay evidence may be competent on a particular issues). “The governing statute, regulation, and our precedent,”the Federal Circuit stated, “make clear that competent lay evidence may be used to establish a medical condition, including causation.” King, 700 F.3d at 1344. Of course, it remains for the Board to determine in this particular case whether lay evidence is “competent and sufficient” to address a specific medical issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). But when the Board fails to cite any of the Federal Circuit precedent mentioned above and states categorically that “the [v]eteran is not competent to provide an opinion requiring medical knowledge or a clinical examination by a medical professional” (R. at 12), the Court is unable to determine whether the Board considered the lay evidence in this case correctly. See Gilbert, supra (noting that the Board’s statement of reasons or bases must be sufficient to facilitate judicial review). This is especially so in this case, where the only apparent criteria relevant to the February 2012 examiner’s opinion was the nature of Mr. 8
Nikkila’s symptoms both before and after the September 2003 MVA, a matter on which the Board found that the veteran was competent to opine. See R. at 12 (“The Board acknowledges that the[v]eteran was competent to report symptoms he experienced, such as headaches . . . .”). The Board should address this issue on remand. Finally, the Court finds that the Board’s decision with respect to TDIU must also be set aside and that matter remanded. “[W]here a decision on one issue would have a significant impact upon another, and that impact in turn could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources, the two claims are inextricably intertwined.” Henderson v. West, 12 Vet.App. 11, 20 (1998) (internal quotations omitted); see Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests of judicial economy and avoidance of piecemeal litigation,” claims that are “intimately connected” should be adjudicated together). Here, the Board denied TDIU based on the February 2012 VA examiner’s opinion that unemployability was attributable to the current headache condition, which was not associated with service-connected cephalgia. R. at 13-16. Because a Board reevaluation as to whether Mr. Nikkila is entitledto anincreasedcephalgiaevaluation couldalterorunderminetheBoard’s basisfordenying TDIU, the Court concludes that TDIU is inextricably intertwined with the cephalgia claim and must be returned to the Board to be adjudicated together with that matter. In pursuing his case on remand, Mr. Nikkila is free to submit any additional evidence and argument, including the arguments raised in his brief to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112.
III. CONCLUSION Upon consideration of the foregoing, the November20,2012, Board decision is SETASIDE, and the matter is REMANDED for readjudication consistent with this decision. DATED: February 20, 2014 9
Copies to: Dennis L. Peterson, Esq. VA General Counsel (027) 10
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