Citation Nr: 1037549 Decision Date: 10/04/10 Archive Date: 10/12/10 DOCKET NO. 05-23 266 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Entitlement to service connection for migraine headaches, on a direct basis and as secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1970. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2004 decision in which the Indianapolis RO, in pertinent part, denied service connection for migraine headaches. The Veteran timely appealed. In December 2006, the Veteran testified during a video conference hearing before the undersigned Acting Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record and has been reviewed. In May 2007, the Board remanded the Veteran's service connection claim for additional development. Thereafter, in April 2009, the Board again remanded this issue for further development. Unfortunately, for the reasons set forth below, this appeal is, once again, being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Regrettably, despite the lengthy procedural history of this case, the migraine headaches issue must once again be remanded because the agency of original jurisdiction (AOJ) did not properly comply with the Board's prior remand instructions. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran contends that service connection for migraine headaches is warranted on a direct basis as residuals of an in- service head injury or, alternatively, on a secondary basis as proximately due to or a result of his service-connected PTSD. Medical records document a long-standing history of migraine headaches. Previously, in May 2007, the Board remanded this matter for the Veteran to undergo a VA examination, and for the examiner to opine as to the likelihood that any currently diagnosed migraine headaches can be attributed to service, or could have been caused by or chronically worsened by the Veteran's PTSD or by another service-connected disability. Specifically, the examiner was asked to reconcile any findings and opinions with the December 2003 statement by a VA clinical psychologist, to the effect that the Veteran's headaches could be due to his PTSD. Although the Veteran's claims file was reviewed at a VA examination conducted in September 2008 pursuant to the Board's May 2007 remand, there is no indication that the examiner considered the December 2003 clinical psychologist's statement (which suggests a nexus between the Veteran's PTSD and migraine headaches), as requested. Thus, in April 2009, the Board again remanded this case in accordance with Stegall for compliance with the original (May 2007) remand instructions. On VA examination in February 2010, the Veteran's claims file was reviewed; however, there was again no indication that the examiner considered the December 2003 statement of the clinical psychologist. Although an opinion as to whether the Veteran's migraine headaches were caused or aggravated by his service- connected PTSD or other service-connected disability was requested, the examiner failed to address this question in the examination report. Under the circumstances, Stegall requires that this case be remanded yet again for compliance with the May 2007 and April 2009 remands. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Furthermore, as noted in the April 2009 remand, the Veteran indicated at the September 2008 VA examination that he recently had a brain MRI, arranged by Dr. Frazier through St. Vincent's Hospital in Indianapolis, Indiana. Results of the brain MRI were not available to the examiner, and the examiner indicated that such results may help in making a more definitive statement about headache etiology. In the April 2009 remand, the AOJ was instructed to obtain necessary authorization from the Veteran to obtain records of the MRI. On remand, the Veteran was provided a VA Form 21-4142, Authorization and Consent to Release Information, and asked to complete and return the form. The Veteran did not respond accordingly. In this instance, as the case is being remanded for other matters, the Veteran should be advised that he now has another opportunity to provide VA with authorization to obtain his MRI results. Finally, the Board notes that, although the May 2007 and April 2009 remands directed the AOJ to furnish to the Veteran a VCAA notice-compliance letter regarding the issue of entitlement to service connection for migraine headaches, asserted to be secondary to a service-connected disability, the claims file does not reflect the Veteran has been provided notice as to how to substantiate a claim for secondary service connection. On remand, a corrective VCAA letter must be provided to the Veteran. Accordingly, the case is REMANDED for the following action: 1. With regard to the secondary service connection aspect of the Veteran's claim, furnish him a corrective VCAA notice- compliance letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the evidence necessary to substantiate a claim for secondary service connection. 2. Ask the Veteran to authorize the release of the records of his 2008 brain MRI from St. Vincent's Hospital in Indianapolis, Indiana (arranged by Dr. Frazier). Obtain and associate with the claims file all records for which adequate authorization is received. 3. Then, afford the Veteran a VA examination to determine the nature, extent, and etiology of any migraine headache disability diagnosed on examination. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the examination report should note review of the file. Pertinent headache symptoms should be annotated in the examination report. In addition, the examiner is asked to determine: (a) whether it is at least as likely as not (50 percent probability or more) that the Veteran's migraine headaches either had their onset in service, or are the result of disease or injury incurred or aggravated during service, to specifically include the in-service head trauma as reported by the Veteran; and (b) whether it is at least as likely as not that the Veteran's service- connected PTSD (or another service- connected disability) caused or aggravated his migraine headaches. In answering this question, the examiner should reconcile his/her opinion with the December 2003 statement by a VA clinical psychologist, to the effect that the Veteran's headaches could be due to his PTSD. The examiner should provide a rationale for all opinions expressed. 4. After ensuring that the requested actions are completed, re-adjudicate the issue of entitlement to service connection for headaches, on a direct basis and as secondary to service-connected disability. If the benefit sought is not fully granted, furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran until he is notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2009). The Veteran has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2009).