Citation Nr: 1121028 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 06-21 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for chronic headaches, claimed as residuals of a head injury. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Wishard, Associate Counsel INTRODUCTION The Veteran had active military service from June 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In December 2008, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in March 2009 and was remanded for further development. It was again before the Board in October 2009, when the Board denied the Veteran's claim. The Veteran appealed the October 2009 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2010, the Court vacated the Board's October 2009 decision and remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran underwent a VA examination in May 2005. The Board finds that another VA examination is warranted. The May 2005 VA examiner's opinion included a discussion of a vehicle accident which the Veteran had in 1966. The examiner noted that because the loss of consciousness was less than an hour and the Veteran did not have a skull fracture, the head injury "must have been minor and not likely to cause the current headache after 40 some years of the accident." The Board finds that the examiner provided inadequate supporting rationale for the determination that only head trauma which causes loss of consciousness for more than an hour and a skull fracture can result in residual headaches. Therefore, a supplemental opinion is warranted. If the examiner opines that only a skull fracture and loss of consciousness of more than an hour can cause residual headaches, she should provide supporting evidence. If the examiner opines that a skull fracture and/or loss of consciousness of less than an hour can cause residual headaches, she should provide a rationale as to why, in her medical opinion, the Veteran's current diagnosis of chronic migraine headaches is not causally related to active service. In rendering an opinion, the examiner should consider the Veteran's STRs and VA medical records from 2001 to present. (In this regard, the Board notes that the Veteran's STRs also reflect that in August 1963, he was hit in the head with a rifle butt, but was not knocked unconscious. An August 1963 radiologic report reflects that there was no evidence of fracture and the skull was normal. When rendering an opinion as to etiology, the examiner should consider these records.) The Veteran has averred that he was treated at McAfee Army Hospital at White Sands Missile Range, New Mexico in 1966 for "a couple of days" due to a motor vehicle accident. (See Board hearing transcript, page 8.) An April 1966 clinical record cover sheet reflects that the Veteran was in the hospital or infirmary for one day, and returned to duty. The Board finds that VA should attempt to obtain any pertinent clinical records from the McAfee medical facility. The Board notes that during the 1960's, it became standard practice for military medical facilities to maintain separate clinical records for inpatient treatment. These records are independent from, and not filed with, individual military medical records. They are retired to the National Personnel Records Center (NPRC) and filed by year and place of treatment. Accordingly, the case is REMANDED for the following action: 1. Contact NPRC, or the appropriate facility, and attempt to obtain all medical treatment records from the McAfee medical facility, White Sands Missile Range, New Mexico, for the Veteran from March 31, 1966 through April 3, 1966. If the above search for any such records yields negative results, this fact should be noted in the claims folder, and if appropriate, the RO should prepare a formal finding of unavailability memorandum, and associate it with the claims file. All documents received by VA should be associated with the claims folder. 2. Thereafter, request the May 2005 VA examiner to provide a supplemental opinion which states a rationale for her previous opinion regarding the Veteran's headache disability. If the examiner opines that only a skull fracture and/or loss of consciousness of more than an hour can cause residual headaches, she should provide supporting evidence. If the examiner opines that a skull fracture and/or loss of consciousness of less than an hour can cause residual headaches, she should provide a rationale as to why, in her medical opinion, the Veteran's current diagnosis of chronic migraine headaches is not causally related to active service (to include being hit in the head by a rifle butt in 1963, and being involved in a motor vehicle accident in 1966.) In rendering an opinion, the examiner should consider the entire claims file, to include the Veteran's STRs, the VA medical records from 2001 to present, and the private medical opinion of record. Any opinion expressed should be accompanied by a complete rationale. If the May 2005 VA examiner is unavailable, schedule the Veteran for a VA examination to determine the extent and etiology of any current headache disability. The examiner is requested to furnish an opinion concerning whether it is at least as likely as not (50 percent or greater) that the Veteran has a current headache disability causally related to his military service, to include being hit in the head by a rifle butt in 1963, and being involved in a motor vehicle accident in 1966. The claims folder should be reviewed in conjunction with such examination and the examination report should indicate that such a review was performed. In rendering an opinion, the examiner should consider the entire claims file, to include the Veteran's STRs, VA medical records from 2001 to present, and the private medical opinion of record. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran, and his representative, if any, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).