Citation Nr: 0811842 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-15 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The veteran had active military service from October 1994 to June 1999, with a verified period of active duty for training (ACDUTRA) from April 2002 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the evidence not of record that was necessary to substantiate her service connection claim and of which parties were expected to provide such evidence by correspondence dated in November 2003. The United States Court of Appeals for Veterans Claims, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. It was further noted that regarding the disability-rating element, in order to comply with section 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided, that is necessary to establish a disability rating for each of the disabilities contemplated by the claim and allowed under law and regulation. The Board finds appropriate action should be taken to ensure adequate VCAA notice as to all elements of the claim is provided. The revised VCAA duty to assist also requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). In this case, service treatment records from the veteran's period of active duty show that she complained of migraine headaches in May and September 1998. In November 1998, the veteran was involved in a motor vehicle accident, and she reported headaches. No findings regarding headaches were reported on the May 1999 separation exam and no complaints of headaches were recorded on the Report of Medical History (RMH) taken at separation. Immediately after leaving active duty, the veteran entered reserve duty. On her RMH upon entering reserve duty, the veteran noted that she had never had frequent or severe headaches or a head injury. An additional RMH completed by the veteran in June 1999 indicated that the veteran had never had frequent or severe headaches. Service treatment records reflect that in April 2002, during a period of ACDUTRA, the veteran fell from a moving vehicle and presented to the hospital emergency room with complaints related to the head. A CT scan revealed a head injury. She was admitted for observation and re-examined, whereupon the veteran complained of occasional mild headaches. The discharge diagnoses were mild concussion secondary to blunt head trauma, linear skull fracture (nondisplaced), scalp laceration, and shoulder abrasion. Follow-up service treatment records dated at the end of April 2002 revealed complaints of vertigo but no headaches. The veteran underwent a May 2002 neurology evaluation reflecting ongoing complaints of vertigo, headaches, neck and shoulder pain, and tingling in both hands. The examiner noted that her symptoms were mild and should gradually improve over time. She was released from ACDUTRA without limitations. Post-service medical records include a May 2003 VA examination record reflecting that the veteran reported falling out of a truck and experiencing vertigo and lightheadedness. She did not report headaches. A CT resulted in normal findings. The examiner opined that the veteran was status-post concussion with intermittent episodes of dizziness and lightheadedness. A June 2003 VA neurological examination report reflects that the veteran provided her medical history regarding her April 2002 accident. She complained of recurrent dizziness and nausea but did not report headaches. The examiner gave a diagnosis of post-concussion syndrome with persistent dizziness and mild cognitive dysfunction. During an October 2004 VA neurological exam, the veteran reported that she had not had more than one day without a headache since her accident. She stated that once every two weeks she had a different kind of headache that was characterized by photo and phonophobia and loss of her vision. Additional VA treatment records from March and December 2005 revealed additional complaints of headaches. The Board also notes that the revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. In Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991), the Court held that the duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." The Board finds that a VA examination is necessary to determine the etiology of her presently demonstrated headaches. While there is evidence that indicates the veteran has received post-service treatment from VA medical centers, it does not appear that the RO has requested the veterans VA treatment records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO must obtain all outstanding pertinent medical records, following the procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002). The VCAA notice should advise the veteran of evidence necessary to establish service connection for headaches on both a direct and a secondary basis. 2. The AMC/RO should contact the veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who treated the veteran for headaches since May 2002. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. After all appropriate treatment records have been obtained and associated with the claims file, the veteran should be afforded an appropriate VA examination to determine the etiology of her headaches. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. Based on review of the claims folder, and evaluation of the headaches, the examiner is to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater), that the veteran has migrane headaches as a result of her active duty service and independent of her service-connected status post concussion. If the examiner feels that the veteran has a headache disorder that pre-dates her May 2002 concussion that is not related to her active service, he/she should opine as to the extent (if any) that the May 2002 accident aggravated her headache disorder above and beyond the normal progression of the disorder. If the examiner feels that her headaches are solely residuals from her May 2002 concussion he/she should say so. Sustainable reasons and bases are to be provided for any opinion rendered. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 5. The AMC/RO should then review the claims folder to ensure that all development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. When the above development has been completed, the AMC/RO should readjudicate the issue on appeal based on a de novo review of all pertinent evidence. If the benefits sought on appeal are not granted to the veteran's satisfaction, the AMC/RO should issue a Supplemental Statement of the Case and afford the veteran and her representative the requisite opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).