Citation Nr: 0813481 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-03 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an increased rating for migraine and muscle contraction headaches currently, evaluated as 10 percent disabling. 2. Entitlement to service connection for dysthemic disorder, not otherwise specified or other psychiatric disorder (claimed as anxiety, depression, and personality disorder) to include as secondary to the service connected mixed migraines and muscle contraction headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. I. Velez, Associate Counsel INTRODUCTION The veteran had active service from February 1978 to November 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of February 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 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 VCAA requires that VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. Duenas v. Principi, 18 Vet. App. 512 (2004); see 38 U.S.C.A. § 5103A(d). When medical evidence is not adequate, the VA must supplement the record by seeking an advisory opinion or ordering another examination. 38 C.F.R. § 3.159(c)(4)(i). See Littke v. Derwinski, 1 Vet. App. 90 (1991). The veteran is seeking an increased rating for his service connected migraine and muscle contraction headaches, and service connection for a psychiatric disorder. In regards to the increased rating, the Board notes that the veteran's migraine and muscle contraction headaches are currently evaluated under VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8100. Under these criteria, characteristic prostrating attacks averaging one in two months over the last several months are to be evaluated as 10 percent disabling. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation is warranted for migraines with very frequent and completely prostrating and prolonged attacks which produce severe economic inadaptability. A VA examination report of October 2003 notes that the veteran reported experiencing headaches which worsened with stress. He described the pain as very tight and pulsating. The examiner stated that the veteran had longstanding intermittent headaches. The Board finds that the VA examination of October 2003 is inadequate to properly assess the severity of the veteran's disability. The applicable diagnostic criteria is based on the frequency and severity of the headaches. However, the examination report did not cover either criterion satisfactorily. Therefore, a new examination is required. In regards to the veteran's claim for service connection for a psychiatric disorder, the Board notes that the veteran, has been diagnosed with dysthemic disorder, anxiety, personality disorder and depression. In a VA examination report of November 2003 the examiner opined that the veteran's psychiatric symptoms are not related to his migraine headaches but rather to his personality disorder. However, in a VA examination report of October 2003, the examiner stated that it is possible that some of his depression or anxiety were aggravated by his migraine headache. A VA examination is required to resolve the conflict in the opinions. Furthermore, if it is found that the veteran's psychiatric disorder was aggravated by the service connected migraine headaches, a determination should be made as to the extent of the aggravation. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA examination to determine the severity of the veteran's service connected migraine and muscle contraction headaches. The examiner should specifically comment as to the frequency of the veteran's headaches, i.e. how many headaches per month, how many months out of the year does he experience the headaches and for how long do they last. In addition, the examiner should comment as to the severity of the headaches, i.e. does the veteran experience photophobia, vertigo, does he need rest. 2. The veteran should be afforded a VA examination to determine the nature and etiology of any psychiatric disorder he may currently have, including dysthemic disorder, anxiety and depression. The claims folder should be made available to the examiner for review before the examination. The examiner should specifically comment as to whether it is as likely as not (i.e., to at least a 50-50 degree of probability) that any currently found psychiatric disorder was caused by or aggravated by the veteran's service connected migraine headaches or whether such an etiology or relationship is unlikely (i.e., less than a 50-50 probability). If the examiner determines that the veteran's psychiatric disorder was aggravated by the service connected migraine headaches, the examiner should determine to what extent was the psychiatric condition aggravated. It is requested that reasoning be afforded in support of any opinion provided. 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). _________________________________________________ H. N. SCHWARTZ 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).