Citation Nr: 1003979 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 07-31 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for migraine headaches, to include as secondary to the service connected residuals of shrapnel wounds of the right forehead and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for migraine headaches, to include as secondary to the service connected residuals of shrapnel wounds of the right forehead and PTSD. 3. Entitlement to an evaluation in excess of 50 percent for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision prepared by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, for the New York RO. The RO, in pertinent part, continued the 50 percent disabling rating for the service connected PTSD and denied a claim for service connection for migraine headaches. The Board notes that service connection for cephalgia was previously denied in March 1971. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.302(a). Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claims, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the claim on appeal has been recharacterized as it appears on the cover page of the instant decision. The Veteran submitted additional evidence, to include private and VA medical records, to the Board after the July 2008 supplemental statement of the case (SSOC) was issued. The Veteran waived initial RO adjudication of the newly submitted evidence. As such, it was considered in disposition of these claims. 38 C.F.R. § 20.1304(c). For the reasons stated below, the Board finds that new and material evidence has been received to reopen the claim for service connection for migraine headaches, but that additional development is necessary regarding the underlying service connection claim. Accordingly, the reopened claim for service connection for migraine headaches is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran has been apprised of what evidence would substantiate the claims for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in these matters has been received. 2. A March 1971 rating decision previously denied service connection for cephalalgia, finding no relationship between the current disability and the service-connected residuals of shrapnel wounds of the right forehead; the Veteran did not appeal the decision and it became final. 3. The evidence received since the March 1971 rating decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with previous evidence of record, relates to an unestablished fact pertaining to etiology of the current disability that is necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for migraine headaches. 4. The evidence shows that the Veteran's PTSD has been productive of sleeplessness, anger, social isolation, nightmares, multiple panic attacks weekly, thoughts of suicide, obsessional rituals, impaired short term memory, inappropriate behavior, intrusive thoughts, auditory hallucinations, difficulty concentrating, mistrust of others, paranoia, and flashbacks, but the evidence does not show PTSD symptomatology consistent with total occupational or social impairment. CONCLUSIONS OF LAW 1. The March 1971 rating decision, which denied service connection for cephalalgia, is final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2009). 2. The evidence received since the final March 1971 rating determination is new and material with regard to the Veteran's claim for service connection for migraine headaches, and thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2009). 3. The criteria for an increased 70 percent evaluation, and no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.16, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). New and Material Evidence The Veteran seeks to reopen the claim for service connection for migraine headaches that was last denied by the RO in a March 1971 rating decision. The Veteran did not appeal the decision and it became final as to this issue. 38 C.F.R. §§ 20.302(a), 20.1103. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The record indicates that, in its March 1971 rating decision, the RO denied service connection for cephalalgia on the basis that there was no evidence of a relationship between the current diagnosis of cephalalgia and the service connected residuals of shrapnel wounds of the right forehead. Of record at the time of the March 1971 rating decision were service treatment records from the Veteran's period of active military service that show the Veteran sustained a fragment wound to the right forehead in March 1968. The August 1968 report of medical history denied frequent or severe headaches. The corresponding separation physical examination was negative for headaches. The neurological examination was normal. Post-service, the October 1969 VA examination was negative for headaches. During the January 1971 VA examination, the Veteran complained of right sided headaches occurring two to three times per week since he sustained the shrapnel wounds. The Veteran was diagnosed with cephalalgia, cause undetermined. Evidence submitted subsequent to the March 1971 rating decision includes a September 1990 report of VA hospitalization showing the Veteran was admitted for pain in his head. VA outpatient treatment records dated in August 1998 show the Veteran reported right sided headaches secondary to his shrapnel wounds of the forehead. A December 2005 computerized tomography (CT) scan of the head was unremarkable. VA outpatient treatment records dated in January 2006 and March 2006 contain diagnoses of migraines. During the September 2006 VA examination the Veteran complained of severe pain back through the head starting at the scar. The examiner opined that the pain the Veteran was feeling, was actually the superficial nerves in the skin that were cut. VA outpatient treatment records dated in September 2006 show the Veteran was having anxiety induced headaches, as well as migraines. In a March 2006 statement, the Veteran alternatively contended that headaches were secondary to not only the shrapnel wounds, but the service connected PTSD. In a January 2009 letter, Dr. RV opined that headaches were at least as likely as not secondary to PTSD symptoms, but absolute cause and effect was undetermined. As noted previously, the March 1971 rating decision denied service connection on the basis that the evidence was insufficient to show a relationship between the Veteran's headaches/cephalalgia and the service connected residuals of shrapnel wounds of the right forehead. The "new" records contain diagnoses of migraines and indicate that they may be related to the service connected PTSD. Thus, the new evidence is "material" when considered with the previous evidence of record. They relate to an unestablished fact necessary to substantiate the Veteran's claim - a nexus opinion - and raise a reasonable possibility of substantiating the claim. Therefore, the Veteran's claim for service connection for migraine headaches is reopened. See 38 C.F.R. § 3.156(a). Increased Rating Historically, service connection was awarded for PTSD in a July 1994 rating decision. An initial 30 percent evaluation was assigned effective from November 1993. In October 1998, the RO continued the 30 percent disabling rating, which the Veteran appealed, but during the pendency of the appeal, the RO awarded an increased 50 percent rating effective from May 1998. The Veteran indicated that he was satisfied with the 50 percent rating and withdrew his appeal. See VA Form 21- 4138 received in May 2001. The Veteran filed the instant increased rating claim in April 2006. The Veteran disagreed with the March 2007 rating decision, which continued the 50 percent disabling rating for PTSD. In initiating the appeal, the Veteran maintains that a rating in excess of 50 percent is warranted for his PTSD because it causes symptoms to include, but not limited to, sleeplessness, anger, social isolation, nightmares, multiple panic attacks weekly, thoughts of suicide, obsessional rituals, impaired short term memory, inappropriate behavior, intrusive thoughts, auditory hallucinations, difficulty concentrating, mistrust of others, paranoia, and flashbacks. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's PTSD has been assigned a 50 percent evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9411, for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board has thoroughly reviewed all the evidence of record. After careful consideration, the Board finds, as is explained below, that the Veteran's PTSD most closely approximates the criteria for a 70 percent rating, and no higher. 38 C.F.R. § 4.7. In this regard, a May 2006 letter from Dr. WH shows the Veteran endorsed survivor's guilt, anger, depression, hypervigilance, and sleeplessness. Dr. WH further noted the Veteran had frequent thoughts of suicide and increased social isolation. While Dr. WH indicated the Veteran's PTSD impacted the ability to function within gainful employment, the objective evidence of record shows he was still employed full-time as a butcher. Upon VA examination in September 2006, the Veteran reported strained interpersonal relationships with his wife, children, and co-workers. He also reported depression, irritability, poor impulse control, self-injurious behavior such as cutting himself with knives at work, and hallucinations. He also indicated he suffered from nightmares and insomnia. The Veteran was not taking medication for his psychiatric symptoms. The Veteran indicated that he punched walls in fits of anger. He thought about suicide, but didn't plan on doing anything. Mental status examination showed him to be well-groomed and alert. He was cooperative and established good eye contact. There was no impairment of thought process or communication. He admitted to hearing people call his name. The Veteran was oriented in all spheres. Short-term memory was impaired. Speech was relevant and goal directed. There was no obsessive or ritualistic behavior which interfered with routine activities. The Veteran did have a panic attack during the examination. Impulse control was impaired. Sleep was fragment by nightmares. The examiner also indicated the Veteran had emotional numbing. The Veteran was assigned a Global Assessment of Functioning Scale Score (GAF) of 55, which according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), is indicative of only moderate symptoms; however, the actual reported and objective symptoms contained in the examination report showed more impairment than reflected in the GAF score assigned. VA outpatient treatment records dated between 2005 and 2009 show the Veteran continued to seek treatment for his PTSD. His affect ranged from flat to constricted. In May 2007, his hypervigilance was shown to verge on the point of paranoia. He continued to suffer from sleeplessness, irritability, and increasing social isolation. In January 2009, the Veteran continued to endorse panic attacks. Suicidal ideation was noted to have been present over the years. In February 2009, the Veteran's representative submitted a checklist of symptoms completed by Dr. RV, the Veteran's treating VA psychiatrist. The psychiatrist indicated that the Veteran had suicidal or homicidal ideation (annotated as chronic, intermittent), near continuous panic attacks, impaired impulse control, difficulty adapting to stressful situations, a flattened affect, disturbances in mood, and difficulty establishing and maintaining relationships. The Veteran did not have impairment in thought process or communication, intermittently illogical speech, spatial disorientation, circumlocutory or stereotyped speech, difficulty in understanding complex commands, or impaired judgment or abstract thinking. The psychiatrist also reported grossly inappropriate behavior, but did not give any examples, and this was not objectively demonstrated elsewhere in the record. While the August 2009 letter from Dr. WH indicated he was doubtful of the Veteran's ability to maintain gainful employment, the Veteran continued to be employed full time as a butcher. In fact, the Veteran had maintained employment as a butcher for the past 45 years. In October 2009, Dr. WH submitted another completed checklist of the Veteran's PTSD symptoms. The Veteran continued to have no impairment in speech, impulse control, judgment, or abstract thinking. His affect was no longer flattened. Dr. WH did indicate that now the Veteran had impairment in communication, obsessional rituals which interfered with routine activities, spatial disorientation, circumlocutory speech, and difficulty in understanding complex commands. Again, the reported grossly inappropriate behavior was not objectively demonstrated by the other evidence of record. In sum, the Veteran's PTSD is more consistent with the criteria for the 70 percent rating. Specifically, the objective evidence of record shows suicidal ideation; obsessional rituals which interfere with routine activities; near-continuous panic or depression; impaired impulse control such as hitting walls and furniture in anger; spatial disorientation; difficulty in adapting to stressful circumstances; and strained relationships with his wife, children, and co-workers. 38 C.F.R. § 4.130. While a 70 percent rating is warranted, the criteria for the next higher 100 percent rating have not been met. There has been no showing the Veteran has had gross impairment in thought processes. While Dr. WH indicated there was impairment in communication and inappropriate behavior, this has not been objectively demonstrated by the record. His thoughts of suicide have been accounted for in the increased 70 percent rating. The Veteran himself has indicated that he has no intent to carry through with such plans. He controls his anger so as not to harm others, and instead hits walls or furniture. There is no indication the Veteran is unable to perform activities of daily living. He has not been disorientated to time or place. The Veteran has had impairment in short-term memory only. There has been no memory loss for names of close relatives, own occupation, or his own name. Finally, the Veteran continues to maintain full-time employment as a butcher and remains married. 38 C.F.R. § 4.7. At no time has the Veteran's PTSD exhibited symptomatology more consistent with total occupational and social impairment. The Board has considered whether additional "staged" ratings are in order, but sees no additional shift in severity so as to justify such. 38 C.F.R. § 4.130; see Hart, supra. Should the Veteran's disability change in the future, a higher evaluation may be assigned. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected PTSD is so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1) (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Veteran has not contended that his service- connected PTSD has have caused frequent periods of hospitalization. The evidence of record reveals the Veteran has maintained full-time employment as a butcher, for the past 45 years. For the PTSD disability decided in the instant decision, the Board has found that the rating criteria for a 70 percent evaluation more reasonably describe his disability level and symptomatology. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b) (2009). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veteran's Claims (Court) held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and to establish entitlement to service connection. The Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service-connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In light of the Board's favorable finding in this decision that new and material evidence has been received to reopen service connection for migraine headaches, and the finding that remand for additional development of the claim on the merits is required, the Board finds that further discussion of VCAA compliance as to this issue is not warranted at this time. With regard to the claim for PTSD, VA complied with notification responsibilities in August 2006. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. Specifically, the letter notified the Veteran that in order to support his claim for increase, he must submit evidence that his PTSD had worsened in severity. Notice pursuant to the Dingess decision was included in the August 2006 letter as well as in a June 2007 letter. VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The information and evidence currently associated with the claims file consists of the Veteran's service treatment records, post service private and VA treatment records, and reports of VA examination. The Veteran has not identified any other evidence which has not been obtained. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER New and material evidence having been received, service connection for migraine headaches is reopened; the appeal is granted to this extent only. Entitlement to a 70 percent evaluation for the service connected PTSD is granted subject to the controlling regulations governing monetary awards. REMAND Reopening the claim for service connection for migraine headaches does not end the Board's inquiry. Additional development is necessary prior to a final adjudication of the merits of the Veteran's reopened service connection claim. The 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, 3.326(a) (2009). The Court in Dingess/Hartman, supra, found that the VCAA notice requirements applied to all elements of a claim. 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. See 38 C.F.R. § 3.159. The Board notes that notice was provided to the Veteran in August 2006, which asked the Veteran to submit evidence that he had a disability that was either caused or aggravated by a service connected disability. The Board finds this notice insufficient as to the requirements necessary to establish compensation under 38 C.F.R. § 3.310 effective from October 10, 2006. On that date, 38 C.F.R. § 3.310 was amended to include that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury that was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (effective after October 10, 2006); see also 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen v. Brown, 7 Vet. App. 439 (1995)). Upon Remand, the Veteran should be provided such notice. Prior to rendering a decision on the merits of the Veteran's claim, the Veteran should be afforded a VA examination. 38 U.S.C.A. § 5103A. Service treatment records show the Veteran sustained shrapnel wounds to the right forehead in 1968. Post-service, he has been diagnosed with cephalalgia and migraine headaches. During VA examination in January 1971, the examiner indicated that cause of cephalalgia was undetermined. A September 2006 VA scars examination indicated that Veteran was having pain from the superficial nerves that were cut in the forehead. The Board notes the Veteran was awarded an increased 10 percent rating for allodynia associated with the shrapnel scars of the right forehead. In a January 2009 letter, Dr. RV indicated that headaches were secondary to PTSD, but absolute cause and effect was undetermined. Given the varying opinions in the record, an examination is necessary to determine the nature and etiology of any currently diagnosed migraine headaches. Ongoing medical records pertinent to the issue need to be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the reopened issue of service connection for migraine headaches, to include as secondary to the service connected residuals of shrapnel wounds of the right forehead and PTSD, is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notice obligations have been satisfied in accordance with the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) and any other applicable legal precedent, by issuing a VCAA notice letter. Such notice should apprise the Veteran of the evidence and information necessary to substantiate his de novo claim of entitlement to service connection for migraine headaches, and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) and (b) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice should also provide the Veteran with the evidence required to substantiate a claim for secondary service connection, to include the amendment to 38 C.F.R. § 3.310, effective October 10, 2006, in accordance with Allen, supra. 2. The RO should contact the Veteran and request that he identify all healthcare providers, VA and non-VA, inpatient and outpatient, who have treated him for migraine headaches since his discharge from service. The RO should request that the Veteran complete and return the appropriate release forms so that VA can obtain any identified evidence relating to such treatment. The RO should attempt to obtain copies of all pertinent records outstanding. All identified private treatment records should be requested directly from the healthcare providers. Specifically, the RO should seek to obtain treatment records of the Veteran from the Hudson Valley VA Medical Center dated after January 2009. All information, which is not duplicative of evidence already received, should be associated with the claims file. All requests for records and their responses should be clearly delineated in the claims folder. 3. Once the development above has been completed, the Veteran should be afforded a VA neurological examination to ascertain the nature and etiology of any migraine headaches. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examiner must supply a rationale for any opinions expressed. All tests and studies deemed warranted (to include X-rays) should be accomplished, with all test results made available to the examiner before the completion of his or her report. The examiner should render an opinion as to whether migraine headaches at least as likely as not (i.e., there is at least a 50 percent probability) (a) had its onset in service; or (b) was caused or aggravated (made permanently worse) by the Veteran's service-connected residuals of shrapnel wounds of the right forehead and/or PTSD or is otherwise the result of a disease or injury in service, and if migraine headaches are aggravated by the service-connected shrapnel wounds and PTSD, to what extent. The examiner's report should set forth the complete rationale for the opinions expressed. 4. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the de novo claim on appeal in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran an appropriate supplemental statement of the case, and afford him an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran 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. 2009). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs