Citation Nr: 1303876 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 95-23 163 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a headache disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to July 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, denied service connection for headaches. In March 1999, the Board remanded the case to the RO for evidentiary development. In a May 2005 decision, the Board denied the Veteran's claim of service connection for headaches. The Veteran then filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In June 2006, the Veteran's representative and VA General Counsel filed a joint motion for remand. The Court granted the joint motion later in June 2006 and, in September 2006, the Board remanded the case for further development. In August 2009, the Board again denied the claim of entitlement to service connection for a headache disability. The Veteran appealed to the Court, and a joint motion for remand was submitted by the parties to the appeal in May 2011. Later in May 2011, the Court granted the joint motion and remanded the case to the Board for readjudication consistent with the motion. The Board remanded the claim for additional development in December 2011. REMAND In the May 2011 Joint Motion, the parties agreed that VA had failed to obtain VA treatment records that the Veteran contends are relevant to his claim. The parties noted that the record suggests that there are treatment records from the VA Medical Center (VAMC) in White River Junction, Vermont, dated in 2003, which were not present in the claims file at the time of the Board's decision. The parties also acknowledged that, while the Veteran had been receiving medical care from VA since his discharge from service, it appeared that no VA treatment records had been added to the claims file since November 2003. Following the December 2011 remand, VA treatment records beginning in 2003 were obtained. However, the records from the White River Junction VAMC began in March 2006. In responding to the request for records, the VAMC did not provide any information regarding records from that facility from 2003 to March 2006. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA has a duty to make reasonable efforts to help procure pertinent records, including VA treatment records. 38 C.F.R. §§ 3.159(c)(2), (c)(3) (2012). Reasonable efforts with respect to these and other records that are in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 C.F.R. § 3.159(c)(2). If, after continued efforts to obtain Federal records, VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA must provide the claimant with oral or written notice of that fact and include notation of such notice in the claims file. The notice must contain the following information: (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) Notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159 (e) (2012). Therefore, a remand is necessary to determine whether records from the White River Junction VAMC are available from 2003 to March 2006 in accordance with 38 C.F.R. § 3.159. Moreover, the Board acknowledges the arguments made on appeal by the Veteran and his representative regarding whether he should be afforded a new opportunity for a VA examination. Although he was scheduled for an examination in November 2006 and failed to report, the Veteran contends that he did not receive notice of that examination. As support, he has noted that he has attended every other examination scheduled for him throughout this and other appeals. Although the duty to assist regarding examinations has been fulfilled, in an attempt to allow the Veteran every opportunity to substantiate his claim, the Board has decided to request that a new VA examination be scheduled. (The Veteran is advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012).) In this case, the Veteran claims that he suffers from headaches as a result of a May 1993 head injury, which has been documented and found to have been incurred in the line of duty. He was treated in service for headaches on three occasions prior to sustaining the May 1993 head injury. In March 1984, he complained of headaches and viral syndrome was diagnosed. In July 1985 he complained of headaches and visual problems and conjunctivitis were diagnosed. In October 1987, he complained of frontal headaches. After the head injury was sustained, he was not treated for headaches again during service. Service treatment records also demonstrate significant treatment for allergic rhinitis, which is service connected, and other allergy-related symptoms. He filed his claim for service connection for headaches upon separation in July 1993. At a November 1993 VA examination, the Veteran reported that he had had recurrent frontal headaches that had been aggravated by a head injury. Since that time, he had had episodic headaches that lasted for two hours, occurred twice per week, and were treated successfully with aspirin. At a November 1993 nose and sinuses examination, he complained of nasal blockage and frontal headaches following several instances where he bumped his nose and experienced nose bleeds. He was diagnosed with a deviated/fractured nasal septum, nasal blockage and congestion, and chronic ethmoid sinusitis and Eustachian tube dysfunction. Neither VA examiner discussed the etiology of his reported headaches or any connection between the headaches and his head injury or military service. The RO wrote to the Veteran in May 2001 and again in February 2002 and requested that he identify healthcare providers who had provided treatment. He responded in February 2002 with a statement indicating that he got headaches following his head injury that were irritating and sore. He did not provide any information regarding any treatment he had received for his headaches. At a December 1999 VA respiratory examination, the Veteran reported that he suffered from headaches several times a week, which could last for several hours and which he treated with over-the-counter medication. He reported the 1993 head injury as well as an injury where he hit his chin on a tank. The examiner diagnosed a scar on the scalp and asthma. VA outpatient treatment reports reflect contradictory statements regarding his symptoms. In July 2002, the Veteran denied suffering from headaches or any head trauma during treatment for pain in his neck. However, during VA treatment in July and September 2006, the Veteran reported chronic headaches since the 1993 head injury. He also reported nausea/vomiting and photophobia at times and that his symptoms were usually relieved with Advil. Then again, the Veteran denied headaches at a May 2011 VA eye examination. VA treatment records also document complaints and treatment for allergic rhinitis and sinus-related symptoms throughout this appeal. In light of the discussion above, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records, including records from White River Junction beginning in 2003 and any records produced since they were last requested in March 2012, and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. The custodian of records at White River Junction should be asked to affirmatively state whether no records exist from 2003 to March 2006. The development should be conducted in accordance with 38 C.F.R. § 3.159. 2. Once the above development has been completed, provide the Veteran with a VA examination with a qualified physician to determine whether any current headache disability is related to service. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review. The examiner is requested to state whether the Veteran has had a chronic headache disability since he filed his claim in July 1993 and, if so, whether that disability continues today. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current headache disability had onset in service or is otherwise related to a disease or injury in service, including, but not limited to, the May 1993 head injury and the two previous instances of headaches. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and explanation requested in this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If the benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. After giving the Veteran and his representative opportunity to respond, the claim should be returned to the Board for appellate review. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2002 & Supp. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).