Citation Nr: 1010652 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 06-16 893 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for claimed migraine headaches. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Bush, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to February 1989 and from May 2002 to January 2003 when she deployed to Southwest Asia in support of Operation Enduring Freedom/Iraqi Freedom. The Veteran also had service with the Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the RO. Of preliminary importance, in Clemons v. Shinseki, 23 Vet. App. 1 (2009) the United States Court of Appeals for Veterans Claims (Court) held that, when the Veteran specifically requests service connection for PTSD, but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed as only a PTSD claim, and should be considered as a claim for a psychiatric disorder. In light of this holding and the fact that the Veteran also has been diagnosed with depression, the issue regarding claimed psychiatric disorders on the title page has been recharacterized. The Board notes that after receipt of additional outpatient records, the RO did not readjudicate the Veteran's claims via issuance of a supplement statement of the case (SSOC). However, the subsequently-submitted records are duplicative of prior evidence of record and readjudication by the RO is therefore unnecessary. See 38 C.F.R. § 20.1304(c) (2009). The issue of service connection for an innocently acquired psychiatric disorder, to include PTSD and depression, is addressed in the REMAND portion of this document and is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The record contains clear and unmistakable evidence that the Veteran's migraine headaches pre-existed her second period of active military service. 3. The record does not contain clear and unmistakable evidence that the Veteran's migraine headaches were not aggravated by her second period of active military service. CONCLUSIONS OF LAW 1. The presumption of soundness at entry for the Veteran's second period of active service is rebutted as to the claimed migraine headaches. 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304 (2009). 2. The Veteran's pre-existing disability manifested by migraine headaches is due to disease or injury that was aggravated by her second period of active service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board notes that the Veterans Claims Assistance Act of 2000 (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) redefined VA's duty to assist claimants in the development of a claim. The VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). However, in light of the favorable action taken hereinbelow, the Board finds that further discussion of VCAA compliance is not necessary at this time. A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In July 2003, the VA General Counsel issued a precedent opinion holding that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence that both the disease and injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. In its decisions, the Board is bound to follow the precedential decisions of the General Counsel. 38 U.S.C.A. § 7104(c). Similarly, in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit Court found that, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. The Federal Circuit Count held in Wagner that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 requires that VA show by clear and unmistakable evidence that (1) the Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). The Veteran in essence asserts that her current migraine headaches were aggravated by her second period of active service in Afghanistan. The migraine headaches were clearly noted on the Veteran's May 2001 examination prior to deployment. Additionally, the May 2004 VA examiner specifically opined that the Veteran "had a history of migraine headaches before going into the service." The Board accordingly finds there is "clear and unmistakable" evidence that the Veteran's migraine headaches existed prior to her second period of service, and the presumption of soundness is rebutted in the instant case. See Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). With respect to aggravation, the service treatment record (STR) indicates that the Veteran sought treatment for migraine headaches in November 2002. Additionally, the May 2004 VA examiner opined that the Veteran's migraine headaches "increased" and were "aggravated" during her second period of active service. Finally, the Veteran, who is a nurse, is more than qualified to provide competent evidence as to the increase in the severity of her headaches during her service in Afghanistan. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the Board has reached the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran's migraine headaches were not aggravated during service. See Vanerson, supra. Thus, service connection is warranted based on aggravation. The Board wishes to make it clear that service connection is granted only for such disability resulting from in-service aggravation of the pre-existing migraine headaches. It is not the Board's responsibility to determine the degree of aggravation in the first instance. See 38 C.F.R. § 4.22 (2009). ORDER Service connection for migraine headaches is granted. REMAND With respect to the Veteran's claim of service connection for an innocently acquired psychiatric disorder, to include PTSD and depression, additional development is warranted. The Veteran asserts she developed PTSD as a result of several stressors occurring in Afghanistan, including: (1) personal assault by five Afghan men in July 2002 that she reported to her superiors; (2) receiving death threats in July 2002 from an Afghan body guard who desired a visa, after which she attended a combat stress debriefing; (3) having her wrist slashed by a detainee in September 2002, in response to which she filed an incident report; and (4) trauma from providing treatment to civilians and children who were injured. Crucially, the record contains no service personnel records from the Veteran's second period of active service. Therefore, the RO should attempt to obtain all available service personnel records pertaining to the Veteran's second period of active service. Additionally, in cases in which personal assault is alleged, the duties under the VCAA include informing the claimant that evidence from sources other than service records may constitute credible supporting evidence. 38 C.F.R. § 3.304(f)(3) (2009); Patton v. West, 12 Vet. App. 272, 282 (1999). The record shows that the Veteran has not been provided with notice of the provisions that apply to cases involving service connection for psychiatric disorders based on allegations of personal or sexual assault. Such should be accomplished. The Veteran also named five fellow servicemen who could verify her "undocumented" treatment while in Afghanistan as part of her January 2005 notice of disagreement. However, no mailing addresses were provided. The Veteran should be provided another opportunity to supply more specific contact information. Moreover, there is indication from the record that the Veteran may have evidenced depression between the end of her first period of service in 1989 and the beginning of her second period of service in May 2002. See, e.g., records from J.D.J, M.D., dated in 2001 noting a medical history of depression. It thus appears that depression may have existed prior to the Veteran entering her second period of active service. The Veteran underwent a VA examination in May 2004, during which the examiner diagnosed depression. However, no opinions were rendered regarding whether any depression pre- existed the Veteran's or was aggravated by her second period of active service. The Board notes that, once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Prior to affording the Veteran an additional examination, the RO should contact the Veteran and associate with the Veteran's claims file any outstanding medical or other records relevant to the Veteran's claims that may be identified by the Veteran and that have not already been associated with the Veteran's claims file. In this regard, the Board notes that the RO listed that records from the VA Medical Center (VAMC) dated from August 1987 to July 2004 were of record. However, these records do not appear to be complete. The most recent record, dated in July 2004, indicates that the Veteran has been seen at the Behavioral Health Clinic since March 2004; however, there are no records dated from March 2004 to July 2004 on file. In this respect, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); 38 C.F.R. § 3.159(c)(2). To ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. Furthermore, the Veteran should be advised of what is needed to establish service connection for a preexisting disorder, to include the holding in Wagner, supra. Accordingly, this remaining matter is REMANDED to the RO for the following action: 1. The RO should furnish the Veteran a corrective letter providing notification of the duties to notify and assist. The Veteran should be notified that an in- service personal assault may be corroborated by evidence from sources other than the service records, as defined in 38 C.F.R. § 3.304(f)(3). She should also be informed of the information and evidence needed to establish service connection for a preexisting condition, to include the holding in Wagner, supra. 2. The RO should ask the Veteran to supply the mailing addresses of H.T. and V.A.R. of the 113th CSC; J.D. and A.W. of the 339th CSH and Lieutenant Colonel J.P. She should be advised that complete mailing addresses are required for VA to be able to assist her in locating these fellow servicemen. 3. The RO should request all of the Veteran's service personnel records from National Personnel Records Center (NPRC) pertaining to her second period of active service from May 2002 to January 2003. If records could not be obtained the RO must document all steps that were taken. 4. The RO should obtain all treatment records from the VAMC dated from March 2004 to the present and associate those records with the claims file. 5. The RO should then again arrange for the Veteran's claims file to be reviewed by a physician to addresses whether the Veteran had depression which pre-existed her second period of military service, and if so, whether such was aggravated therein, and if not, whether such is otherwise associated with military service. It is imperative that the examiner reviews the evidence in the claims file, including a complete copy of this REMAND, and acknowledges such review in the examination report. The examiner should specifically offer an opinion as to the following: (a). Did depression exist prior to the Veteran's second period of active duty? If so, state (if possible) the approximate date of onset of such disorder. (b). If the depression preexisted the Veteran's second period of active duty, did such disorder increase in disability during such period of active duty? In answering this question, the examiner is asked to specify whether the Veteran sustained temporary or intermittent symptoms resulting from service; or whether there was a permanent worsening of the underlying pathology due to service, resulting in any current disability. (c). If the Veteran's depression increased in disability during the second period of active service, was that increase due to the natural progression of the disease? (d). If depression did NOT pre-exist the Veteran's second period of active duty, does the Veteran currently have depression that is at least as likely as not (i.e., a 50 percent probability) the result of an injury or other documented event of any period of active service? In offering these opinions, the examiner should comment on the Veteran's service medical records, post-service treatment records, and the Veteran's statements contained in the claims file. The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. A complete rationale should be given for all opinions and should be based on examination findings, historical records, and medical principles. 6. To help avoid future remand, RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completion of the foregoing, and after undertaking any further development deemed necessary, the RO should readjudicate the remaining issue on appeal, in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response thereto. Thereafter, in indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs