Citation Nr: 1127966 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 07-36 176 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for claimed migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1998 to August 2000 and from January 2002 to June 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the RO. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND A careful review of the claims file reveals that further RO action is required in this appeal. The service treatment records show that the Veteran received treatment for headaches and migraine headaches while on active duty. He reported initially experiencing headaches in 1997 after heavy physical exertion. He indicates that his symptoms have diminished, but still recur periodically. The records from 2002 and 2003 document numerous complaints of headaches. In February 2002, headaches likely associated with chronic strain were noted. In June 2002, he was diagnosed with basilar migraine headaches with a musculoskeletal trigger. The treating physician noted that it was possible that long hours were a contributing factor. On the reports of medical history in August 2004 and September 2005, the Veteran reported having frequent severe headaches. A July 2005 Medical Evaluation Board report noted diagnoses of posttraumatic stress disorder (PTSD), major depressive disorder, and pain disorder. It was noted that the Veteran's pain disorder was associated with both psychological factors and general medical conditions and was manifested by severe migraine headaches, cervical pain, shoulder pain and numbness of both hands. A January 2006 Medical Evaluation Board report noted an onset of headaches in 2001 along with chronic bilateral neck strain. A diagnosis of migraines was assigned. Following service, the VA outpatient treatment records reflect continued complaints of headaches. A January 2007 neurology report noted that the Veteran's headaches appeared to be a combination of muscle tension and vascular headaches. The neurologist also noted that there might be an element of musculoskeletal pain, as well as headache, which could be due to an underlying element of anxiety and depression. The Veteran was afforded a VA examination in September 2006. After review of the claims file and the Veteran's medical history, the examiner recorded a diagnosis of headaches of unclear etiology. The examiner added that multiple medical evaluations had classified these headaches as being the result of migraine headaches or muscular tension headaches. When discussing the Veteran's various psychiatric diagnoses, the examiner pointed out that the medical records and examination report supported the diagnosis of chronic pain syndrome as demonstrated by a constellation of multiple syndromes with associated pain that did not respond well to standard medical treatment, including headaches, neck pain and upper extremity pain. In the Board's opinion, on this record, it is unclear whether the Veteran's headache manifestations are the product of an acquired psychiatric disorder-to include pain syndrome-for which service connection has already been granted or are due to a separate and distinct neurological condition. The Board acknowledges that the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2010). However, the Board notes that 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, the Board finds that another examination with a medical opinion is needed to resolve the claim of service connection. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, the RO should take all indicated action in order to obtain all outstanding treatment records. The claims file currently includes treatment records from VA through October 2007. The Board emphasizes 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). The RO should also afford the Veteran another opportunity to present medical evidence or treatment records in support of his claim. The RO's notice letter should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, the RO should ensure that all development or notification action deemed warranted by VCAA has been accomplished prior to adjudicating the claim. Accordingly, this matter is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to obtain copies of all outstanding records referable to treatment rendered the Veteran since October 2007 by VA. The RO must follow the procedures set forth in 38 C.F.R § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO also should take appropriate steps to send the Veteran and his representative a letter requesting that he provide sufficient information, and any necessary authorization, to obtain copies of all additional medical evidence in support of the claim. The RO should explain the type of evidence that is the Veteran's ultimate responsibility to submit. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any identified records are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Then, the RO should schedule the Veteran for a VA examination by a neurologist to determine the nature and likely etiology of the claimed headaches. The claims folder must be provided to the examiner for use in the study of this case, and the report must note that it has been reviewed. All indicated tests and studies should be conducted. After completing the examination and reviewing the records, the examiner should provide an opinion as to whether the Veteran has a current headache disability that is separate and distinct from his service-connected pain syndrome or other acquired psychiatric disorder? In rendering the opinion, the VA examiner should address all the evidence of record, to include the service treatment records and findings of the September 2006 VA examination. The rationale for all opinions expressed should also be provided. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should clearly so state, and the reasons and bases for the inability to provide the opinion must be included in the examination report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested 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, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the a fully responsive Supplemental Statement of the Case to the Veteran and his representative and afford them a reasonable opportunity for response. Thereafter, if 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 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). _________________________________________________ STEPHEN L.WILKINS 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).