Citation Nr: 0813235 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 99-12 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a chronic headache disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a psychiatric disorder. 4. Entitlement to service connection for a seizure disorder. 5. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John F. Cameron, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran served on active military duty from July 1974 to July 1977, and subsequent reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1998 rating action of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama. In that decision, the RO denied the issues of entitlement to service connection for residuals of a right hip injury, a psychiatric disorder, hypertension, and a chronic headache disability. The veteran testified before a Decision Review Officer in September 1999. A copy of the transcript is included in the record. The Board denied the issues of entitlement to service connection for residuals of a right hip injury, a psychiatric disorder, hypertension, and a chronic headache disability. The veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In January 2007 Memorandum Decision, the Court affirmed the Board's decision denying service connection for right hip disability, and vacated and remanded the remaining decision denying service connection for psychiatric disorder, hypertension, and chronic headache disability. The Board also remanded the veteran's claims for entitlement to service connection for seizure disorder and TDIU, and requested that the RO issue a statement of the case. A statement of the case was issued and the veteran subsequently perfected his appeal. Therefore, these issues are also before the Board at this time. In October 2007, the veteran's representative submitted a number of medical documents in support of the veteran's claims. A written statement waiving initial consideration of this evidence by the RO was later received in February 2008. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran is claiming service connection for chronic headache disability, hypertension, psychiatric disorder, and seizure disorder, and TDIU. The veteran claims that he injured his head while on active duty for training (ACDUTRA) in July 1996. The record does not contain verification of any specific dates of active duty and/or ACDUTRA pertaining to the veteran's period of service with the Army Reserve in 1996. The veteran's personnel records pertaining to his ACDUTRA service with the Army reserve for the year of 1996 should be requested. The veteran is asserting that his chronic headache disorder is a residual from a head injury occurring in July 1996 during ACDUTRA. He has described headaches since that purported injury. (T. at 1-7, 9). The veteran submitted corroborating witness statements in support of his claim. Statement from W.W. indicated that in the summer of 1996 at annual training, he witnessed the veteran slip on a wet, greasy floor and bump his head. C.W. stated that he witnessed the veteran slip on a wet, greasy spot and hit the floor hard. His feet appeared to go over his head and he came down on his hip first and then his head. He assisted the veteran in getting to a chair. The veteran complained to him that his head was hurting. In the alternative, the veteran argues that his headaches are related to handling clothing from soldiers returning from the Persian Gulf. See May 1998 VA Form 21-4138. Service medical records fail to reveal complaints of, treatment for, or findings of headaches or residuals of a head injury. According to the medical records, when the veteran injured his right hip after having slipped on an oil spill in July 1996 during annual training, he complained of some tenderness in his back in addition to his complaints of right hip pain. However, there was no mention of having hit his head from this fall or experiencing headaches after having fallen. The veteran's period of active military duty are negative for complaints of, treatment for, or findings of headaches. At the June 1977 separation examination, the veteran denied ever having experienced a head injury or frequent or severe headaches. In particular, this examination demonstrated that the veteran's head was normal. The first evidence of complaints and treatment for headaches is noted in private medical records dated between June and September 1997. A June 1997 report provides an impression of vascular headaches. A record dated in the following month reflects treatment for severe vascular headaches with some muscle tension component. Another private report dated in July 1997 included the veteran's admission that his severe headaches had begun in June 1997. Magnetic resonance imaging (MRI) completed on the veteran's brain as well as computed tomography completed on his head in July 1997 were both normal. VA medical records dated between February and June 1998 reflect outpatient treatment for frontal headaches. At the February 1998 treatment session, the veteran again reported that the headaches began in June 1997, and further reported that he had headaches daily and that they are unrelieved by any medicine except for Demerol. At a private evaluation conducted in July 1998, the veteran again stated that his headaches began in June 1997. He also reported that, several months prior to the start of his headaches, he had fallen and hit his head "while on maneuvers in summer camp." The treating physician provided an impression of occipital neuritis and neuralgia with bilateral headaches. Private and VA medical records subsequently dated between October 1998 and May 2002 reflect almost monthly evaluation of, and treatment for, headaches. In January and March 1999, the veteran underwent occipital nerve blocks. In July 1999, he was found to have gained some relief from this treatment. The July 1999 record also provides an impression of bilateral headaches secondary to occipital neuralgia. In October 1999, the veteran reported experiencing only temporary relief of headaches with Naprosyn. The veteran received treatment for chronic headaches throughout the claims period. Current private and VA medical treatment records provided by the veteran's representative continue to show a chronic headache disability. A September 1997 private neurological evaluation, close in time to when the headaches began, indicated that the veteran's headaches were most probably muscle contraction in origin and were "[p]ossibly related to [his] labile hypertension exacerbation in the early . . . [morning and] more likely related to stress factors." At a VA neurological evaluation in April 2001, the veteran reported that his fall in 1996 or 1997 caused him to sustain head trauma. He denied incurring any loss of consciousness at the time of the injury. He described headaches since the injury. A neurological evaluation was normal. The examiner provided an impression of status post head trauma. At a May 2001 VA outpatient treatment session, the examiner concluded that the veteran's headaches were possibly related to his hypertension. At the March 2002 VA examination, the veteran reported having a history of headaches since 1997. The examiner noted that the service medical records were not included in the veteran's claims folder. The examiner discussed the reports of the post-service neurological findings which were contained in the claims folder. Following a physical examination, the examiner diagnosed chronic headaches which he explained had both vascular and musculoskeletal components. The examiner described the veteran's disorder as vascular and muscle tension headaches. Based on the veteran's personal report but no service medical records (which were not included in his claims folder), the examiner concluded that the "noted head injury and trauma can cause post-traumatic headaches." In particular, the examiner stated that "[w]ithout the benefit of the service medical records and any such previous documentation, it is the opinion of the examiner that it is as least as likely as not that his [the veteran's] headaches . . . [are] related to the history of injury from a fall." At the VA examination conducted one year later in March 2003, the veteran reiterated his assertions that he hit his head when he fell and injured his hip in June 1996 and that he has experienced headaches since that time. The examiner noted that the results of MRI and an electroencephalogram were normal. The examiner diagnosed migraine headaches. It was added that the etiology of the veteran's migraine headaches is unknown. On remand, the Board finds it necessary to clarify whether there is a 50 percent probability that current chronic headache disability is related to a fall in July 1996 during ACDUTRA. 38 C.F.R. § 3.159. The veteran claims that his psychiatric problems are secondary to his headache disability. A March 2002 VA psychiatric opinion indicated that the veteran's psychiatric disorder is the result of his various physical conditions, including his headaches. The Board finds that determination of the issue of service connection for chronic headache disability could have a "significant impact" upon his service connection claim for psychiatric disorder. These issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). The veteran is claiming that his hypertension is secondary to his psychiatric disorder. A March 2002 VA examiner opined that the veteran's depression/anxiety may have aggravated his hypertension. The Board finds that determination of the issue of service connection claim for psychiatric disorder could have a "significant impact" upon his hypertension claim. These issues are inextricably intertwined. Id. The veteran is also claiming service connection for a seizure disorder. Review of the record shows that service medical records, including ACDUTRA records, fail to show complaints of, treatment for, or a diagnosis of seizure disorder. The first medical evidence of a seizure disorder is noted that he was admitted for hospitalization in July 1997 for complaints of syncope. He was walking around and stated that he passed out. The diagnosis was acute syncope. An August 1997 evaluation report indicated that the veteran began having severe headaches one month earlier, described as occipital discomfort associate with nausea, retro-orbtial pain and pain upon rotation of flexion of the neck. Following extensive workup, including MRI and EEG testing, the examiner diagnosed headache, etiology unclear, and syncopal episodes, suspect vasovagal reactions. An April 2001 medical report indicated a diagnosis of seizure disorder. The examiner indicated that the veteran reported having a head trauma while attending summer camp in 1996. He stated that he hit the occipital of his head without any loss of consciousness. He stated that at that time everything went white. The veteran then stated that his headaches became progressive from that point on until 1997 when he had his first blackout. The impression was seizure disorder and status post head trauma. A VA examination report in March 2002 discussed the April 2001 medical report and further indicated that the veteran was receiving medication to treat his seizure disorder. A diagnosis of seizure disorder was given. The examiner stated that without the benefit of the service medical records and any such previous documentation, it is the opinion of the examiner that it is at least as likely as not that his seizure disorder is related to the history of injury from a fall. Medical records through 2007, including those provided by the veteran's representative, show treatment for seizure disorder. The veteran's statements and those of his service acquaintances reflect that he injured his head in July 1996 while on ACDUTRA, though they are unable to attest to the severity of the head injury. However, the most probative evidence reflects that headaches and seizures did not begin before July 1997. While the veteran now claims that pertinent disability dates from the initial head injury, the clinical records contemporaneous to the injury make no mention of pertinent pathology. The clinical evidence dated closest to the event, when the veteran's memory would be freshest and when he was seeking clinical help and prior to filing for compensation, point to July 1997 as the date of onset of pertinent symptoms. Upon review, a new examination with etiological opinion is required with access and review of the claims folder, including the service medical records. Lastly, the Board finds that the adjudication of service connection for the several issues will directly impact the veteran's TDIU claim. Thus, the issue of entitlement to TDIU is inextricably intertwined with the claims of service connection. Therefore, the Board will not review the veteran's claim for entitlement to TDIU until the RO develops and adjudicates the outstanding claims for service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443, 445-46 (1994). The Board finds that there is no medical opinion of record specifically determining whether the veteran's hypertension is related to his fall during ACDUTRA in July 1996. In addition, On remand, the Board finds it necessary to clarify whether there is a 50 percent probability that current hypertension is related to a fall in July 1996 during ACDUTRA. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the NPRC, as well as the service department, or any other official channel as necessary, and verify the beginning and ending dates of each period of the veteran's ACDUTRA, therein, if any, for the year of 1996. All records and/or responses received should be associated with the claims folder. 2. After completion of the above, the veteran should be afforded a VA neurology examination to determine if his current chronic headache disability and seizure disability are related to an injury during ACDUTRA. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. A copy of this remand should be provided and reviewed by the examiner. All indicated tests and studies should be performed, and all pertinent findings should be reported in detail. The examiner should render an opinion as to whether there is a 50 percent probability or greater that any chronic headache disability and/or seizure disability, which did not become symptomatic until July 1997 at the earliest, are related to an ACDUTRA head injury in July 1996. The examiner should review the pertinent evidence, including service medical records, post-service medical records from 1997 to present, etiology opinions, and lay witness statements. The rationale for all opinions should be explained in detail. Medical evidence is tabbed on the right side of the claims folders. 3. If, and only if, the neurology examiner finds that headaches and/or seizure disability is/are related to service, the veteran should be afforded a VA psychiatric examination to determine if any psychiatric disability is related to the service-related headache and/or seizure pathology. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. A copy of this remand should be provided and reviewed by the examiner. All indicated tests and studies should be performed, and all pertinent findings should be reported in detail. For each psychiatric disability found, the examiner should render an opinion as to whether there is a 50 percent probability or greater that it is related to his chronic headache and/or seizure disability. The examiner should specify whether psychiatric disability owes its onset to service-related headaches and/or seizures or whether psychiatric disability has undergone a permanent increase in severity due to the service-related headaches and/or seizures. The rationale for all opinions should be explained in detail. Medical evidence is tabbed on the right side of the claims folders. 4. If, and only if, the psychiatric examiner finds that current psychiatric disability is related to headaches and/or seizure disability, the veteran should be afforded a VA cardiovascular examination to determine if his hypertension is related to, or aggravated by service- related psychiatric disability. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. A copy of this remand should be provided and reviewed by the examiner. All indicated tests and studies should be performed, and all pertinent findings should be reported in detail. The examiner should render an opinion as to whether there is a 50 percent probability or greater that the veteran's hypertension is related to service-related psychiatric disability. The examiner should specify whether hypertension owes its onset to service-related psychiatric disability or whether hypertension has undergone a permanent increase in severity due to the service-related psychiatric disability. The rationale for all opinions should be explained in detail. Medical evidence is tabbed on the right side of the claims folders. 5. Thereafter, the RO should readjudicate the issues on appeal, including the claim for TDIU. All applicable laws and regulations should be considered. If any of the benefits sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2007). _________________________________________________ THOMAS J. DANNAHER 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).