Citation Nr: 0117417 Decision Date: 06/29/01 Archive Date: 07/03/01 DOCKET NO. 96-42 012A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for multiple sclerosis. 2. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from April 1975 to April 1977. The veteran has been awarded special monthly pension benefits by the RO based on the need for regular aid and attendance. This appeal to the Board of Veterans' Appeals (Board) arises from a July 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that determination, the RO denied the veteran's claim for service connection for multiple sclerosis and the claim for service connection for migraine headaches. The veteran and her representative have requested both Travel Board and RO hearing officer hearings during the course of this appeal, but ultimately canceled requests for all hearings. REMAND The claims folder was transferred from the RO to the Board for review in October 2000. In March 2001, it was discovered that the veteran's representative at the Board had not submitted an informal hearing presentation on her behalf. Accordingly, the claims folder was referred to the veteran's representative at the Board in March 2001 for further argument on the veteran's behalf. In April 2001, the veteran's representative at the Board submitted an April 2001 report from C.H. Bash, M.D., along with a motion to allow the submission of additional evidence. The undersigned Board Member advises at this time that the motion is granted. In April 2001, the veteran's representative at the Board also submitted an informal hearing presentation on the veteran's behalf, in which he declined to waive RO review of Dr. Bash's medical report. He also suggested that the VA physician who examined the veteran in November 1996 and who offered an opinion as to the date of onset and etiology of her multiple sclerosis was not a medical doctor. This caused the Board to contact the RO to verify the professional status of the VA physician. In May 2001, it was learned that the VA physician who examined the veteran in November 1996 is a neuroopthalmologist. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In view of the fact that the veteran's representative has declined to waive RO review of the Dr. Bash's report, the significant medical evidence added to the record since the November 1996 VA examination, and the fact that a VA medical opinion is not of record concerning the existence, onset, and etiology of a migraine headache disorder, the case is remanded for the following action: 1. The veteran should be requested to provide the names, addresses and approximate dates of treatment for any health care providers, including VA, who may possess additional records pertaining to multiple sclerosis or migraine headaches since late 1996. After obtaining any necessary consent forms for the release of the veteran's private medical records, the RO should obtain, and associate with the claims folder, all records noted by the veteran that are not currently on file. 2. Thereafter, the veteran should be afforded a VA neurologic examination to determine the onset and etiology of the veteran's multiple sclerosis and any migraine headache disorder found to be present. It is imperative that the claims folder, containing all evidence relevant to the case (including a copy of this REMAND), be provided to the VA examiner who is designated to examine the veteran, so that the examiner can review the veteran's pertinent medical history and circumstances. All clinical findings should be reported in detail. The examiner should respond to the following questions: (a) Is it at least as likely as not that multiple sclerosis developed in service or within 7 years after discharge from service, or is otherwise related to service? (b) Does the veteran currently have a migraine headache disorder? (c) If your answer to the preceding question is in the affirmative, is it at least a likely as not that the migraine headache disorder developed during service or is otherwise related to service? 3. After completion of the development called for above, and after undertaking any additional development deemed warranted by the record, the RO should readjudicate the veteran's claims for service connection for multiple sclerosis and migraine headaches. If the benefits sought on appeal are not granted, the RO should issue a Supplemental Statement of the Case and provide the veteran and her representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to procure clarifying evidence, to ensure due process of law, and to comply with the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. 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 by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).