Citation Nr: 1300346 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-25 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active military service from January 1980 to December 1983, as well as active duty for training (ACDUTRA) from April 4, 1978 to September 9, 1978. This matter is before the Board of Veterans' Appeals (Board) following a June 2012 Order from the United States Court of Appeals for Veterans Claims (CAVC) vacating the Board's July 2011 decision. The Court's Order granted a June 2012 joint motion for remand (JMR) and returned the matter to the Board for action consistent with the JMR and Court Order. This matter was originally on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In April 2011, a hearing was held before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for headaches. Additional development is necessary prior to the adjudication of this appeal. The duty to assist required under the VCAA, discussed above, includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In McLendon v. Nicholson, the Court held that the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the Veteran qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has not been afforded a VA examination for his headache claim. The June 2012 JMR indicated that the above elements of McLendon had been met and that a VA examination was warranted. Specifically, the Court noted that the Veteran was competent to report that he experienced headaches since service, that the service treatment records documented that the Veteran was involved in a motor vehicle accident in June 1980 that resulted in the loss of consciousness and amnesia, and that the Veteran was competent to report a continuity of symptomatology since service. As to the Veteran's reported continuity of symptomatology, the Board notes that the Veteran reported that his headache disability had its onset in 1981. The Board finds it extremely significant, however, that during the April 2011 Board hearing the Veteran indicated that he did not file a claim, "until I started having the headaches." See April 2011 Board Hearing Transcript at 10. As the Veteran did not file his claim until October 2006, or more than 20 years after his separation from service, there appears to be significant discrepancy in the record as to the accuracy of any assertion of continuity of symptomatology. Nevertheless, in light of the clear intent of the June 2012 JMR that a VA examination be obtained, as well as the Veteran's in-service motor vehicle accident, his complaints of current headaches, and the suggestion that he has experienced headaches since his in-service motor vehicle accident, a remand to afford the Veteran a VA examination for his headaches is warranted. The RO should also take this opportunity to obtain any recent VA treatment records from May 2007 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain all medical records and hospitalization records for the Veteran's conditions from all appropriate VA medical facilities from May 2007 to the present. Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records. 2. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination for his claimed headaches. The claims file, including a copy of this remand, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file including the entirety of this remand, eliciting a history directly from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether any current headache disability had its onset during military service or is otherwise related to service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). 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 that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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) (2012).