Citation Nr: 0005045 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 93-04 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to an increased evaluation for asthma, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from September 1988 to August 1989. This appeal arose from an August 1990 rating decision of the Houston, Texas, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to service connection for headaches and a low back disorder, but which awarded service connection for asthma, assigning it a 10 percent disability evaluation. These decisions were confirmed and continued by rating actions issued in December 1990 and November 1992. In January 1995, this case was remanded by the Board of Veterans' Appeals (Board) for additional development. In July 1996, a rating action continued to deny the benefits sought. In August 1997, the Board again remanded the above-noted issues for development (this decision had also granted service connection for sinusitis). In June 1999, another remand of these issues by the Board was issued. The case was returned to the Board in December 1999. FINDINGS OF FACT 1. The veteran has presented credible evidence that his headaches and low back pain are related to his service. 2. The evidence does not show that a chronic headache condition was present in service, nor does it show that his headaches are etiologically related to a service-connected disability. 3. The evidence of record indicates that the veteran suffered an acute back injury in service which resolved by discharge, and is not related to his current complaints of back pain. 4. Whether the veteran meets the criteria for the next higher rating for asthma cannot be determined from the evidence of record. CONCLUSIONS OF LAW 1. The veteran has presented evidence of well grounded claims for headaches and a low back disability. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran does not have a chronic headache condition which developed in service, or that is proximately due to or the result of a service-connected disorder. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.303(b), 3.310(a), 3.655(a) & (b) (1999). 3. The veteran's low back pain in service was acute and transitory in nature and did not result in a chronic condition. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(b), 3.655(a) & (b) (1999). 4. The veteran's claim for an increased evaluation for the service-connected asthma must be denied. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.655(a) & (b) (1999) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for headaches and a low back disorder Under the applicable criteria, when a claimant fails to report, without good cause, for an examination scheduled in conjunction with an original compensation claim (which is required to establish entitlement to a benefit), the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(a) & (b) (1999). Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Under the applicable criteria, service connection may be granted for disabilities which are proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (1999). FACTS Headaches The veteran's service medical records indicated that he was seen on January 11, 1989 for tension headaches secondary to stress (related to multiple problems at home). From late January 1989 to May 1989, the veteran was treated for headaches, sinus congestion, fever, chills, and dizziness. These were generally related to upper respiratory disorders. The veteran was examined by VA in May 1990. He stated that he first suffered from headaches after being exposed to various chemicals in service. The neurological examination diagnosed muscle contraction headaches, with a normal neurological evaluation. Another VA examination of the veteran was performed in June 1995. He complained of headaches which occurred two to three times per week. He claimed that these were often associated with his asthma. He described these headaches as squeezing and band-like in character and indicated that they were bitemporal and bifrontal. They would occur over and behind his eyes. He also complained of occasional photophobia. The neurological examination was within normal limits. He was diagnosed with vascular headaches of unclear relationship to any ears, nose or throat disorders. In March 1998 and August 1999, VA examinations were scheduled in order to ascertain whether or not the veteran's headaches were related to or aggravated by his service-connected sinusitis and asthma or whether they were related to the headaches complained of in service. However, he failed to report to either of these scheduled examinations. Low back pain The veteran's service medical records showed that on February 19, 1989 he reported having low back pain of three weeks duration. He had mild paravertebral lumbar tenderness. The diagnosis was muscle spasms. The veteran was examined by VA in May 1990. He claimed that he had been lifting heavy objects in service, when he slipped and fell against a wall, injuring his back. He reported intermittent numbness and a pinching feeling in the low back, but he denied any radiation. The neurological examination noted that he had low back pain consistent with strain. There was no evidence of current symptoms or signs, or radiculopathy. The x-ray was negative except for an S1 transitional vertebrae with spina bifida occulta and rudimentary ribat L1 on the right. Another VA examination of the veteran was conducted in June 1995. He complained of low back pain, with occasional radiation of pain into the left buttock, down the left leg to the ankle. He reported that the ship he had been aboard in service had rolled and he had struck his back against a wall. The general examination noted a mild decrease in flexion. Lateral flexion, extension and rotation appeared intact. There was no tenderness. Straight leg raises were equivocal at 45 degrees. The orthopedic examination noted normal alignment, with mild spasm of the paravertebral musculature on forward flexion. Forward flexion was to 80 degrees; extension was to 0 degrees; and lateral bending to both sides was to 20 degrees. Deep tendon reflexes were 2+ at the knees and 1+ at the ankles. He was able to heel and toe walk satisfactorily. Motor strength was 5/5 in both lower extremities. An x-ray showed a congenital defect at L5, a possible pars imperfecto or a spina bifida defect. The diagnosis was post traumatic chronic strain, moderately symptomatic. The veteran was scheduled for VA examinations in March 1998 and August 1999 so that it could be determined whether the veteran's symptoms of back pain were related to his congenital disorder or to his acute injury in service, or whether his current symptoms were related to the spasms noted in service. However, he failed to report to either examination. ANALYSIS Based upon the current evidence of record, it cannot be found that entitlement to service connection for headaches or a low back disorder has been established. In regard to the claim for headaches, it is unclear from the available evidence whether the veteran's headaches are a separate disorder which can be related to his service, or whether they can be etiologically related to his service-connected sinusitis or asthma. In regard to the claim for a low back disorder, it is unclear from the record whether or not his current complaints of back pain are related to a congenital disorder or to the acute injury noted in service. Because the veteran failed to report to two scheduled VA examinations, these questions can not be answered based on the available evidence. Therefore, the preponderance of the available evidence is against the veteran's claims for service connection. II. Entitlement to an increased evaluation for service-connected asthma According to the applicable criteria, when entitlement or continued entitlement to a benefit, such as a claim for an increased evaluation, cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such an examination, or re-examination, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or the death of an immediate family member. 38 C.F.R. § 3.655(a) & (b) (1999); Engelke v. Gober, 10 Vet. App. 396 (1997). In the instant case, the veteran has requested that an increased disability evaluation be assigned to his service- connected asthma. Board remands from August 1997 and June 1999 had ordered that the severity of his pulmonary condition be reviewed and evaluated under both the old and new regulations pertaining to respiratory disorders. The veteran failed to report for examinations scheduled in March 1998 and August 1999. After a careful review of the record, it is found that an increased evaluation for the service-connected asthma has not been shown to be warranted. Initially, it is noted that an additional examination was absolutely necessary in order to determine the current nature and degree of severity of the service-connected asthma. This information is needed in order to determine entitlement to the benefit sought on appeal. Unfortunately, the veteran failed to report to two scheduled VA examinations. He did not provide any good cause for these failures. The RO's failure to obtain the information rests solely with the veteran's refusal to cooperate with the attempts of the RO to examine his condition. Therefore, it is concluded that the RO has made every attempt to obtain the information requested by the Board. Under the circumstances of this case, 38 C.F.R. § 3.655(b) directs that the claim for an increased evaluation for the service-connected asthma will be denied. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for asthma. ORDER Service connection for headaches is denied. Service connection for a low back disorder is denied. An increased evaluation for the service-connected asthma is denied. C. P. RUSSELL Member, Board of Veterans' Appeals