Citation Nr: 1121413 Decision Date: 06/02/11 Archive Date: 06/09/11 DOCKET NO. 05-30 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for migraine headaches, to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran had active duty for training from May to September 1988 and served on active duty from September 1990 to August 1991, with service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter was previously remanded by the Board in October 2009 for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Board previously remanded this case in October 2009, in part, for a VA examination to determine the nature and etiology of the Veteran's headaches. The examiner was instructed to provide a diagnosis for the Veteran's claimed headaches, and to provide opinions as to whether headaches were due to service, service-connected PTSD, or an undiagnosed illness. The Veteran was afforded a VA examination in December 2009. Based on a review of the claims file, a history provided by the Veteran, and a physical examination, the examiner diagnosed the Veteran with migraine headaches. He further stated that he could not determine the etiology of these headaches without resort to speculation. There was no documentation of treatment for headaches during service or several years after service. The Veteran also mentioned that headaches were precipitated by stress and pressure, and studies have indicated that psychological stress may be associated with chronic headaches. However, the issue of a causal relationship is not clear, and the causes of migraine headaches are not fully understood. The U.S. Court of Appeals for Veterans Claims (Court) recently held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. In this case, the examiner in this case provided a basis for his speculative opinions. However, the statements of the examiner do not sufficiently address whether the Veteran's migraine headaches are aggravated by his service-connected PTSD. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made, should be applied. The Board notes that if headaches are part of the service-connected PTSD, they could affect the rating of the PTSD. Therefore the rating for PTSD is inextricably intertwined and must also be remanded. See 38 U.S.C.A. § 1160(a)(3) (2010); 38 C.F.R. § 3.383(a)(3) (2010); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: 1. The claims file, including a copy of this remand, should be forwarded to the examiner who conducted the Veteran's December 2009 VA examination. The examiner should comment on the etiology of the Veteran's migraine headaches, to include whether these disabilities are permanently aggravated by service-connected PTSD. After a review of the claims folder, the examiner should address the following: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has migraine headaches that are aggravated or permanently worsened by his service-connected PTSD. The examiner should review the entire record and provide a complete rationale for all opinions offered. If the examiner is unable to render an opinion as to the etiology, he should so state and indicate the reasons. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 2. If the December 2009 VA examiner is not available, then the Veteran should be scheduled for a new VA examination in the appropriate specialty to determine whether his migraine headaches are the result of or permanently aggravated by his service-connected PTSD. The claims file should be made available to the examiner, and the examiner should address the following: (A) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has migraine headaches that are caused by or the result of his service-connected PTSD. (B) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has migraine headaches that are aggravated or permanently worsened by his service-connected PTSD. The examiner should review the entire record and provide a complete rationale for all opinions offered. If the examiner is unable to render an opinion as to the etiology, he should so state and indicate the reasons. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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).