Citation Nr: 0815899 Decision Date: 05/14/08 Archive Date: 05/23/08 DOCKET NO. 04-39 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to herbicide exposure. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, claimed as secondary to herbicide exposure. 4. Entitlement to service connection for peripheral neuropathy of the right upper extremity, claimed as secondary to herbicide exposure. 5. Entitlement to service connection for skin disability. 6. Entitlement to service connection for headaches. 7. Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from March 1970 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. This case was the subject of a June 2006 hearing before the undersigned Veterans Law Judge. The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no competent medical evidence to indicate that the veteran has peripheral neuropathy of the left upper, right upper, left lower, or right lower extremities. 2. The evidence of record indicates that the veteran was not diagnosed or treated for a low back disability during service or until many years after service, and the competent medical evidence of record indicates that the veteran's current low back disability is more likely age-related rather than injury-related. 3. There is no competent medical evidence to indicate that the veteran has a skin disability that began during service, or is related to any incident of service, to include exposure to Agent Orange during service. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the left upper extremity was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6)(ii), 3.309(e) (2007). 2. Peripheral neuropathy of the right upper extremity was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6)(ii), 3.309(e) (2007). 3. Peripheral neuropathy of the left lower extremity was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6)(ii), 3.309(e) (2007). 4. Peripheral neuropathy of the right lower extremity was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6)(ii), 3.309(e) (2007). 5. Skin disability was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307(a)(6)(ii), 3.309(e) (2007). 6. A low back disability was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. A November 2006 VCAA letter explained the evidence necessary to substantiate the claims for service connection on appeal. This letter was re-sent to the veteran in January 2007. This letter also informed him of his and VA's respective duties for obtaining evidence, as well as requested that the veteran submit any additional evidence in his possession pertaining to his claims. In addition, the letter explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the required VCAA notice was not completed prior to the initial adjudication, the claims have been readjudicated thereafter, most recently in a November 2007 supplemental statement of the case, so that any prejudice resulting from failure to provide notice prior to the initial adjudication is cured. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Duty to assist With regard to the duty to assist, the claims files contain service medical records, records of the Social Security Administration, reports of VA post-service treatment, reports of private treatment, and reports of VA examinations. Additionally, the claims files contain the veteran's statements in support of his claims. The Board has carefully reviewed such statements and acknowledges that the veteran has identified further private treatment records not associated with the claims files. However, in the VCAA letter sent to the veteran in November 2006, and re-sent to the veteran in January 2007, the RO specifically requested that the veteran provide release forms authorizing three specific private treating physicians to send the records to VA, as well as identify or submit to VA any additional relevant private records of treatment. These requests were made pursuant to the Board's October 2006 remand of this appeal to the RO. The veteran did not respond to these requests, so that the RO could not request the records from the identified private physicians. In a November 2007 supplemental statement of the case, the veteran was informed that the release forms had been requested of him in the November 2006 duty to assist letter, and that the RO had not received a response from him. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO cannot feasibly conduct this aspect of development of the claim without the veteran's cooperation. Nevertheless, copies of some of the private treatment records sought have been received from the Social Security Administration, and are considered in this decision in adjudication of the veteran's claims. Additionally, the veteran was afforded a March 2007 VA examination with respect to the claim for service connection for low back disability. The March 2007 VA examination report, in conjunction with an addendum received in July 2007, addresses the matter directly and is adequate for rating purposes. VA examinations with respect to the veteran's claims for service connection for peripheral neuropathy and a skin condition are not required because, as will be discussed below, there is no competent evidence showing that the veteran has peripheral neuropathy, and there is no competent evidence to indicate that the veteran's current skin disability may be related to service. See 38 U.S.C.A. § 5103A(d); cf. Duenas v. Principi, 18 Vet. App. 512, 518 (2004) (veteran may indicate relationship between service and current disability through his statements on matters susceptible to lay observation). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, the RO has made reasonable efforts to obtain all available evidence that could substantiate the claims, and has obtained all known relevant evidence in the possession of the Federal government. General Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall be presumed to be due to exposure to such herbicide agents if they have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). In addition, the United States Court of Appeals for the Federal Circuit has determined that a veteran is not precluded by presumptive laws and regulations from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The United States Court of Appeals for the Federal Circuit has held that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding presumption of service connection for colon disability to be rebutted by clear and convincing evidence in the form of absence of post- war medical records of treatment for colon-related problems for period of over 40 years). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Peripheral Neuropathy Service medical records include no diagnosis of peripheral neuropathy or any other disorder of the nerves or extremities. Because peripheral neuropathy is not shown within one year of presumed exposure to Agent Orange in Vietnam, entitlement to service connection for peripheral neuropathy on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Moreover, there is no competent medical evidence to show that the veteran currently has peripheral neuropathy. At a November 2004 VA examination for diseases related to exposure to Agent Orange, the veteran was found to have no neurological symptoms, and neurological examination of the hands and feet, to include by monofilament, was negative. A May 2004 private EMG study of the left lower extremity revealed no electrodiagnostic evidence for a neuropathy or a radiculopathy of the left lower extremity. Sensory testing to pinprick, vibration, and light touch, conducted by a private neurologist in May 2004 and August 2005, was normal. A physician reviewing the veteran's medical records for the Social Security Administration in March 2006 noted that neurological findings had been within normal limits. The Board acknowledges the veteran's contention that he has peripheral neuropathy of the upper and lower extremities, related to exposure to Agent Orange during service, or, as described at his June 2006 Board hearing, related to trauma or strain to his arms and legs during service. However, as a lay person, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Opinions regarding the diagnosis and etiology of peripheral neuropathy are complex medical matters requiring opinions from a medical professional. As such, the opinions of the veteran in this regard are of no probative weight. There is no competent medical evidence that the veteran has peripheral neuropathy of the upper or lower extremities. In the absence of competent evidence of the claimed current disability, entitlement to service connection is not warranted for peripheral neuropathy of the left lower extremity, the right lower extremity, the left upper extremity, or the right upper extremity. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Lumbar Spine At the veteran's July 1969 pre-induction examination, at a July 1970 in-service examination, and at his October 1971 service separation examination, clinical evaluation of the spine was normal, and the veteran indicated he did not now have and had never had back trouble of any kind. Service medical records are otherwise silent for complaints, diagnosis, or treatment relating to the low back. In a private neurologist consultation in May 2004, the veteran was noted to have had low back pain for many years, but increasingly severe in the last 8 weeks. He had not worked for a while as a mason, but in April began a job involving heavy lifting in odd positions. He did not remember any specific injury, but at work his low back began to hurt with radiation more or less in a sciatic nerve distribution into the left leg. Over the years he had experienced some back pain, but each time it settled down in a week or two without any difficulty. However, this time the pain was increasing despite having not worked over the past 4 weeks after he had been laid off from work. He had since found another job as a night aide for the mentally ill, which did not involve significant exposure to lifting, twisting, or turning. An EMG of the low back in May 2004 was negative for a neuropathy or radiculopathy of the left lower extremity. A June 2004 MRI of the lumbar spine revealed a locally stenotic appearance of the thecal sac at L5-S1 disc level primarily as a consequence of facet arthropathy. A June 2004 X-ray revealed degenerative changes in the lower lumbar spine with evidence of facet arthropathy, most at the L5 level. Small vertebral body spurs were also noted. In June 2004 the private neurologist diagnosed the veteran as having lumbar spinal stenosis. In August 2005 the neurologist diagnosed the veteran as having low back pain. Examination findings were generally normal or negative except for tenderness to percussion in the low back. The neurologist and the veteran decided not to continue with any further diagnostic testing or treatment. VA treatment records (including, for example, a record of treatment in November 2005) generally indicate a running diagnosis of chronic episodic low back pain and left-sided sciatica, without known antecedent injury. At a VA examination in March 2007, the veteran did not recall any specific injury to his lumbar spine during service. He stated that he had episodes of back pain during his service time, but did not seek any specific medical attention for his pain. He complained of intermittent lower back pain with intermittent leg pain to the knee region. He was unable to specifically describe what triggers his back pain other than saying that it happens with heavy lifting and heavy activity. There was no history of falls. An X-ray revealed mild degenerative changes of the lumbar spine. The examiner diagnosed the veteran as having intermittent lower back pain with intermittent sciatica. The examiner wrote that his examination of the back was consistent with lumbar strain with intermittent left leg sciatica with completely normal neurologic examination and full range of motion of the lumbar spine. The examiner opined that it was more likely than not that that the veteran's current complaints were age-related rather than due to any specific injury in the service. The examiner elaborated that the veteran was unable to describe any specific injury in service, and that although the veteran reported that he had lower back pain in service, he never sought specific medical care for his lower back pain. In July 2007, the examiner reviewed the claims files, including MRI results and X-ray results of the lumbar spine, and asserted that he had not changed his opinion as expressed in his March 2007 VA examination report. A presumption of service connection for arthritis of the back is not warranted because arthritis of the back is not shown during service or within one year of service. See 38 C.F.R. § 3.307. 3.309(a). Further, the medical evidence does not show low back disability during service or for many years thereafter. The first indication of treatment for low back disability is in May 2004, over 30 years after discharge from service, and this fact weighs heavily against the claim for service connection. See Maxson v. Gober, 230 F.3d 1330. Further, medical histories of record indicate that there is no known antecedent injury to the back, and a March 2007 VA examiner's opinion was that the veteran's disability was more likely age-related than injury related. The Board acknowledges that the veteran was a parachutist during service and that he asserts that he experienced back pain during service. The veteran's assertions to this effect are credible. However, while the veteran is competent to report episodes of pain, an opinion as to the etiology of his current low back disability is a matter outside the realm of lay observation and requires medical expertise. As a lay person, he is not competent to offer such opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). As a result, his testimony that his current back disability is related to parachutist duties and back pain during service is of no probative weight in adjudication of his claim. In light of the above, the Board finds that the preponderance of the evidence is against the veteran's claim for low back disability. Although he experienced back pain during service, perhaps in association with parachute jumping duties, the service medical records, post-service medical histories and the competent medical opinion evidence of record taken together indicate that his current low back disability did not begin until many years after service and is not related to any incident of service. Accordingly, entitlement to service connection for low back disability is not warranted. Skin At the veteran's July 1969 pre-induction examination, a July 1970 in-service examination, and an October 1971 service separation examination, clinical evaluation of the skin was normal, and the veteran indicated he did not now have and had never had skin disease. Service medical records are otherwise silent for complaints, diagnosis, or treatment relating to the skin. At the veteran's Board hearing in June 2006, he indicated that during service his skin would sometimes peel after rubbing his hands together. He said he wore long sleeves, and that the weather was hot. He also described perhaps using foot powder and insect repellant. This testimony appears to have related to his period of service in Vietnam. Recent VA records of treatment (including, for example, a record of treatment in November 2005) generally indicate a running diagnosis of chronic hyperkeratosis of the hands, treated with cream. Also, a VA record of treatment in March 2006 indicates that the veteran was receiving private treatment for warts of the hands, including laser treatment and Aldara cream. The VA treating physician's diagnosis was palmar warts. (As noted above in the section of this decision pertaining to the VCAA, in November 2006 and January 2007, VA requested that the veteran provide releases for specific private physicians other than the veteran's dermatologist, and further notified him that he should identify to VA or provide any further relevant evidence. He did not respond to VA's notices, and without cooperation of the veteran, further development of private medical evidence is not feasible based on the current record. The duty to assist is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996)). Although at his June 2006 Board hearing the veteran provided credible testimony that his skin peeled from his hands at times during service, his service medical records include no treatment or diagnosis for skin disease. Clinical evaluation of his skin on one occasion during service in July 1970 and at discharge from service in October 1971 was normal. At a VA examination in November 2004, specifically for diseases that may be related to Agent Orange exposure, upon examination of the skin no pathologic lesion of the skin was found. The first indication of treatment for chronic skin disease in the claims files is from 2005. Thus, the first indication of treatment for chronic skin disease is over 30 years after the veteran's discharge from service, a factor that weighs heavily against the veteran's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); 38 C.F.R. § 3.303(b). Based on his service in Vietnam, the veteran is presumed to have been exposed to Agent Orange. However, since recently diagnosed actinic keratoses and palmar warts are not among the diseases for which service connection is presumed based on exposure to Agent Orange during service, a presumption of service connection is not warranted for these conditions. See 38 C.F.R.§§ 3.303, 3.307(a)(6)(ii), 3.309(e). Although the veteran contends that he has current skin disability that is related to exposure to Agent Orange or other events during service, a relationship between current skin disability manifested many years after service and exposure to Agent Orange or other incidents during service is a complex medical matter not susceptible to lay observation. Thus, his opinions in this regard are of no probative weight; the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). In sum, there is no evidence of chronic skin disease during service or until many years after service, and no indication by competent evidence that the veteran's current skin disability is related to any incident of service, to include his exposure to Agent Orange in Vietnam. Thus, the Board finds that the preponderance of the evidence is against the claim for service connection for skin disability. Accordingly, entitlement to service connection for skin disability is not warranted. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in this matter. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for skin disability is denied. Entitlement to service connection for low back disability is denied. REMAND Recent records of VA treatment include a continuing diagnosis of migraine headaches with aura. (See, for example, VA record of treatment dated in August 2007.) A record of VA treatment in January 2005 includes a detailed history and analysis of the veteran's headaches. The veteran complained of frequent tension headaches. He indicated by history that the onset of the headaches was back in the service, though he never complained about them. He noted that his mother used to get migraines. The location of the headaches was median frontal, throbbing with movement, with occasional nausea but without vomiting, and with photophobia. The frequency was up to twice a week, but sometimes none for one to two weeks. Prodromes were tension and anxiety, occasional dizziness, poor balance, and numbness of the face and eye sockets. Rarely, he would have spots in his visual field just prior to the headache. The only triggers identified by the veteran were "airstrikes in Nam and poor sleep." The clinician noted that the veteran had not "yet explored specific anti- migraine rescue meds or migraine prevention." In the Board's view, these medical records are sufficient to indicate that the veteran's headache disability may have begun during service, or may be related to symptoms of his service-connected PTSD such as sleep problems, anxiety and tension. Accordingly, a VA examination for the purpose of determining whether the veteran's headache disability began during service or is related to any incident of service, or may be caused or aggravated by his service-connected PTSD (currently rated as 70 percent disabling), is warranted. See 38 U.S.C.A. § 5103A(d); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In addition, the veteran should be provided updated VCAA notice with respect to his claim for service connection for headaches, including the information or evidence necessary to substantiate a claim for secondary service connection. Accordingly, the case is REMANDED for the following action: 1. Provide to the veteran all notification action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), with respect to his claim for service connection for headaches. This notice should include the information and evidence necessary to substantiate a claim for service connection as secondary to a service-connected disability. Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. 2. Schedule the veteran for a neurological examination to determine the extent and likely etiology of any headache disability found. The claims folder must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given without resorting to speculation. The records of treatment reviewed should include a January 20, 2005, record of VA inpatient treatment that includes a detailed history and description of the veteran's headaches. The examiner should state whether it is at least as likely as not that any headache disability began during service, is related to any incidence of service, or is caused or aggravated (aggravation constitutes chronic worsening of the underlying condition rather than a temporary flare-up of symptoms) by his service-connected PTSD. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than percent), "at least as likely as not" (meaning likelihood of at least 50 percent, or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, the veteran and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs