Citation Nr: 1134837 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 05-14 218 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to February 1975. She also had periods of active duty for training (ACDUTRA), including from February 5, 1999, to February 17, 1999. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). In September 2009 and November 2010, the Board remanded the case for additional development. 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 has reported that she suffered injuries in a fall aboard a ship during a period of ACDUTRA in Norway in February 1999. She contends that she injured her right arm and cervical spine in the fall and that these injuries served to aggravate a preexisting migraine headache condition. During the course of this appeal, an April 2010 rating decision granted service connection for right trapezius and rhomboid strain, and a July 2011 rating decision granted service connection for cervical strain, both finding that these disabilities were incurred in the fall during the February 1999 period of ACDUTRA. Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Effective October 10, 2006 (during the course of this appeal), 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) regarding secondary service connection on the basis of the aggravation of a nonservice- connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). The amended 38 C.F.R. § 3.310(b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. A May 1994 annual reserves examination noted migraine headaches. An October 1998 private treatment record noted complaints of recurrent headaches. A November 2000 record noted complaints of headaches, "she has had these on and off for seven years, but has been especially bad the past month." In December 2000, the Veteran reported a ten year history of headaches. "Initially they were occurring two times a week. They are now occurring 20 days out of the month." The examiner diagnosed migraine headaches. She was started on Norvasc. A March 2001 record noted that the Veteran, who had been having 20 headaches per month, was down to one headache every two months or so. A VA examination in November 2009 found that the Veteran's headaches were not aggravated by the trapezius and rhomboid strain, and were not caused by the injury during ACDUTRA in 1999. A January 2011 VA examination found that the Veteran's headaches preexisted and were not aggravated during her period of ACDUTRA in 1999, and were not aggravated by service connected right trapezius and rhomboid strain. The examiner also found that the Veteran's cervical strain was incurred during the period of ACDUTRA. As noted above, service connection for cervical strain was then granted in July 2011. Unfortunately, while noting the Veteran's complaints that her neck would sublux and cause headaches, the examiner did not address the question of possible aggravation of the Veteran's migraine headaches disorder by the newly service-connected cervical strain disability. Regrettably, the case must again be remanded for an examination with an opinion addressing this question. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of her headache disability. The claims file must be made available to the examiner for review in connection with the examination. The examiner should conduct a thorough examination of the Veteran and provide a diagnosis for any headache-related pathology found. Based on the examination and review of the record, the examiner must answer the following question: Is it at least as likely as not that any currently diagnosed migraine headache disorder is caused or aggravated by the service connected cervical strain? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of headache disability present (i.e., a baseline) before the onset of the aggravation. A rationale for all opinions expressed should be provided. 2. Then, readjudicate the claim of entitlement to service connection for migraine headaches, to include on a secondary basis with consideration of both pre- and post-October 2006 versions of 38 C.F.R. § 3.310. If a benefit sought on appeal remains denied, issue an appropriate supplemental statement of the case and provide the appellant and her representative an opportunity to respond. The appellant 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. 2010). _________________________________________________ M. E. LARKIN 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).