Citation Nr: 1237350 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 08-13 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for headaches, to include migraines. 2. Entitlement to an increased rating for fracture of ring and little fingers, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1951 to January 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2007 and January 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). With respect to the issue of entitlement to service connection for headaches, the Board issued a decision denying this appeal in March 2011. In March 2012, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. With respect to the issue of entitlement to an increased rating for fractured ring and little fingers, the RO denied the claim by way of a January 2011 rating decision. The Veteran filed a timely notice of disagreement in July 2011. The RO has yet to issue a statement of the case in response to the Veteran's disagreement. Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issue must be remanded to the RO for a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the issue must be remanded. 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 Headaches The Court vacated the Board's March 2011 decision because it found that the Board inadequately discussed the Veteran's lay statements of continuity of symptomatology. The Board found the statements competent; but it failed to discuss whether the statements were credible. The Court also found that the July 2010 VA examination report (and the August 2010 addendum) upon which the Board's decision was partially based, was inadequate. The Court found that the VA examiner likewise failed to consider the Veteran's lay statements regarding continuity of symptomatology. The examiner also based his rationale on an inaccurate factual premise. Specifically, the examiner stated that the Veteran's first documented complaints of headaches occurred in 2005. In fact, the first documented complained of headaches occurred in 1986. The Board finds that the issue must be remanded so that the Veteran can undergo another VA examination (by someone other than the July 2010 examiner). The examiner should opine whether it is at least as likely as not that the Veteran's headaches began in service or are causally related to any incident of service, to include the Veteran's pharyngitis in February 1951 (treated with P.P.Q.) and/or the Veteran's February 1953 reaction to an influenza virus vaccine. Fingers As noted in the introduction, the Veteran filed a timely notice of disagreement in response to the January 2011 rating decision that denied an increased rating for fractured ring and little fingers. Where a claimant files a notice of disagreement and the RO has not issued a statement of the case, the issue must be remanded to the RO for a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the issue must be remanded. Accordingly, the case is REMANDED to the AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The AMC should make sure that the VA records are updated and in the claims folder. 2. The AMC should take appropriate action, including issuance of a statement of the case, on the issue of entitlement to an increased rating for fractured ring and little fingers. The Veteran and his representative should be clearly advised of the need to file a timely substantive appeal if the Veteran wishes to complete an appeal from the determination. 3. The AMC should schedule the Veteran for an in-person VA examination, by someone other than the July 2010 examination, for his headaches. The claims folder should be made available to the examiner for review in conjunction with the examination. Any tests or studies that might be needed to respond to the following questions should be done. a. What is the correct current diagnosis for the Veteran's headaches? b. Is it at least as likely as not that the Veteran's illness in February 1951, shortly after entering service, diagnosed as pharyngitis and treated with "P.P.Q." resulted in the Veteran's chronic headache disorder? Please explain. c. Is it at least as likely as not that a February 1953 reaction to influenza virus vaccine resulted in the Veteran's chronic headache disorder? Please explain. d. Is it at least as likely as not that any incident of service resulted in the Veteran's chronic headache disorder? Please explain. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 causation. The Board notes that there has not been continuity of treatment for headaches since service. Nonetheless, Veteran has alleged continuity of symptoms. The examiner must consider and comment upon the fact that the Veteran's first documented complaints of headaches occurred in November 1986, at which time he reported that the headaches began in service in 1951. The examiner must also consider and comment upon the lay statements from the Veteran and others (his son-in-law, daughter, etc.) that reflect that the Veteran has been suffering from headaches since the early 1970s. 4. Thereafter, the AMC should readjudicate this claim in light of any evidence added to the record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. 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. 2011). _________________________________________________ J. A. MARKEY 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) (2011).