Citation Nr: 0609900 Decision Date: 04/05/06 Archive Date: 04/13/06 DOCKET NO. 03-02 316 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for headaches, to include as secondary to service-connected diabetes mellitus (DM) and/or hypertension, to include medications prescribed for management of either disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The veteran had active service from September 1965 to June 1967. This appeal to the Board of Veterans Appeals (Board) arises from a November 2002 rating action that denied service connection for headaches, to include as secondary to service- connected DM and/or hypertension. The veteran filed a Notice of Disagreement subsequently in November 2002, and the RO issued a Statement of the Case (SOC) in December 2002. The veteran filed a Substantive Appeal in January 2003. In February 2004, the veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In July 2004, the Board remanded this case to the RO for further development of the evidence and for due process development. After accomplishing the requested action, the RO continued the denial of the claim (as reflected in the June 2005 Supplemental SOC (SSOC)), and returned this case to the Board for further appellate consideration. For reasons expressed below, the matter on appeal is again being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO action on this matter is warranted, even though such action will, regrettably, further delay an appellate decision on the claim on appeal. In October 2002, a VA physician examined the veteran and considered the question of whether he has headaches that are secondary to his service-connected DM. After examination, he opined that it was more likely than not that the veteran's headaches were secondary to tension, stress, and sinusitis. Since that examination, the veteran has expanded his claim for service connection for headaches to include as secondary to service-connected hypertension or medications prescribed for management of either hypertension or DM-questions that were not before the October 2002 VA examiner, but which his private physician, P. Tanzer, M.D., has addressed. In March and April 1988, May 1989, and December 1999, Dr. Tanzer noted headaches in association with hypertension and/or medications prescribed for its management. In January 2004, Dr. Tanzer noted that the veteran's headaches had no clear precipitating factor, associated symptoms, aura, or prodrome except medication therapy for DM. In February, the veteran's headaches were described as vague and following no clear patterns, and were possibly cervical and radicular in nature, versus migraine, versus tension/vascular; the medical literature indicated a time correlation with the onset of medication prescribed for DM. In March, the veteran noted an intermittent headache flare since medication therapy for DM. This private medical evidence does not clearly indicate whether the medication prescribed for DM aggravates (permanently worsens) the veteran's headaches so as to result in additional disability, and the October 2002 VA examiner was not requested to comment as to the relationship between the veteran's headaches and his hypertension or medications prescribed for management of either hypertension or DM, or whether the veteran had additional disability resulting from the aggravation of his nonservice-connected headaches by the service-connected DM or hypertension or medications prescribed for management of either disability. In this regard, the Board points out that 38 C.F.R. § 3.310(a) has been interpreted to authorize a grant of service connection not only for disability caused by a service-connected disability, but for the degree of additional disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Given the foregoing, the Board finds that the medical evidence currently of record is insufficient to decide the claim on appeal. See 38 U.S.C.A. § 5103A. Hence, the RO should arrange for the veteran to undergo further examination, by a physician, to obtain further medical opinion needed to resolve the claim for secondary service connection. The veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2005). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran fails to report for the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file updated records of all treatment and evaluation of the veteran for DM, hypertension, and headaches by Dr. Tanzer from January 2005 up to the present time; the RO should request that the veteran sign and furnish appropriate authorization for release to the VA of all such private medical records, and to furnish any pertinent evidence in his possession. The action identified herein is consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2005) . However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should request that the veteran provide authorization to enable it to obtain all records of his treatment and evaluation for DM, hypertension, and headaches by Peter P. Tanzer, M.D., 3471 Fifth Avenue, Pittsburgh, Pennsylvania 15213 from January 2005 up to the present time. The RO should also invite the veteran to submit all pertinent evidence in his possession. 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified for which authorization is provided by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all available records and/or responses have been associated with the claims file, or a reasonable time period for the veteran's response has expired, the RO should arrange for the veteran to undergo VA neurological examination, by a physician, at an appropriate VA medical facility. The entire claims file must be made available to the physician designated to examine the veteran, and the report of examination should reflect consideration of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's headaches (a) were caused or (b) are aggravated by his service-connected DM or hypertension or medications prescribed for the management of either disability. If aggravation of the nonservice-connected headache disability by the service- connected DM or hypertension, or medications prescribed for the management of either disability, is found, the doctor should attempt to quantify the degree of additional disability resulting from the aggravation. The physician should set forth all examination findings along with the complete rationale for the conclusions reached in a printed (typewritten) report. 4. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the expanded claim on appeal in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2005).