Citation Nr: 1303271 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-35 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to a compensable initial rating for left eye injury residuals, iris sphincter tear. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from July 1972 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran had a hearing before the undersigned Veterans Law Judge in July 2011. A transcript of that proceeding has been associated with the claims file. The record reflects that after the second and final statement of the case (SOC) the Veteran submitted additional relevant evidence to the Board. No subsequent supplemental statement of the case (SSOC) was issued, but this is not necessary as the evidence was accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2012). 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for migraines headaches and a compensable initial rating for left eye injury residuals, iris sphincter tear. 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 was afforded a VA examination in June 2009. The examiner noted that the Veteran had problems with the left temporomandibular joint in service, but he stated that this was no longer a problem and was different from his current headaches. The examiner concluded following physical examination that the Veteran had headaches consistent with migraine headaches, but that they did not appear to be related to his in-service eye injury in 1973. In a July 2010 addendum, the June 2009 VA examiner provided an opinion as to whether the Veteran's current headaches were related to his service-connected eye disability. The examiner noted that the Veteran clearly indicated during the June 2009 VA examination that his headaches started after he was out of service and not at the time of his eye injury. As such, it would be very difficult to directly link the migraine headaches to the eye injury. Moreover, migraine headaches were an inherited trait and various things in the environment could trigger them, including various injuries. Again, due to the delay between the eye injury and onset of the headaches, the examiner found it very difficult to link the migraine headaches to the eye injury. Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2012). 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, the Board finds that the June 2009 VA examination report and July 2010 addendum do not adequately address the issue of whether the Veteran's migraine headaches have been aggravated by his service-connected left eye injury. In addition, the Board notes that the evidence of record indicates that the Veteran was hospitalized in 1973 while in service for approximately five or six days at Martin Army Community Hospital at Ft. Benning, Georgia. The Veteran's service treatment records contain only a notation from August 31, 1973 from the Emergency Room at Martin Army Community Hospital noting an injury to the left eye three days previously. As the subsequent hospitalization records have not been associated with the claims file and given that such records may have some bearing on the Veteran's current headache and eye claims, the Board concludes that a remand is required to permit the agency of original jurisdiction (AOJ) the opportunity to obtain such records. Moreover, during the July 2011 Board hearing the Veteran indicated that he had ongoing treatment with Dr. Martha Flowers. In support of his claim, the Veteran submitted an August 2011 treatment record from Dr. Flowers. Given the Veteran's ongoing treatment with this physician the Board concludes that the Veteran should be contacted to afford him the opportunity to provide such treatment records directly or authorize VA to seek such records directly from his physician, as well as the Arkansas Neurology & Epilepsy Diagnostic Testing Center. In that regard, a statement was received from Arkansas Neurology & Epilsepsy Diagnostic Testing Center which indicated that a number of tests were conducted, however, those results are not of record. Accordingly, the case is REMANDED for the following action: 1. Request from the appropriate agency, clinical records pertaining to hospitalization during service, from August 1973 to September 1973, at the Martin Army Community Hospital at Ft. Benning, Georgia. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Request that the Veteran provide relevant contact information and release form authorization for Dr. Martha Flowers and the Arkansas Neurology & Epilepsy Diagnostic Testing Center, for all treatment records. In the alternative, the Veteran should be notified that he may provide the private treatment records to VA directly. All records obtained or any responses received should be associated with the claims file. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. 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 June 2009 VA examination report and July 2010 addendum, 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 is it more likely than not, at least as likely as not, or less likely than not related to service, to include the eye injury therein. Also, is it more likely than not, at least as likely as not, or less likely than not, that a current headache disability is due to or caused by his service-connected left eye disability. Also, is it more likely than not, at least as likely as not, or less likely than not, that a current headache disability is aggravated (i.e., worsened) beyond the natural progress by the service-connected left eye disability. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's headache disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected left eye disability. 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. 4. After the above is complete, readjudicate the Veteran's claims. If the full benefits requested on appeal are not granted, 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). _________________________________________________ S. S. TOTH 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).