Citation Nr: 1304408 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-34516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar affective disorder. 2. Entitlement to service connection for headaches, to include migraines. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to May 1993. He also served with the U.S. Air Force Reserve after his period of active duty until his retirement from the Reserve in June 2008; presumably this includes periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In June 2010, the Veteran requested a Board hearing be held at the RO. Subsequently, the Veteran withdrew the request for a Board hearing in correspondence received in September 2010. As the Veteran has not requested that any hearing be rescheduled, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2012). The disorders that are the subject of the Veteran's claims on appeal require clarification on remand. Originally, the Veteran filed claims of entitlement to service connection for depression and for migraines. The July 2008 VA examination indicates that the Veteran was diagnosed with bipolar affective disorder type I, which in July 2008 was in partial remission with mild symptoms. The examiner stated that the Veteran did not then meet the criteria for depression, which had been diagnosed by a private physician in January 2003. Likewise, while migraine headaches were diagnosed during a July 2008 VA examination, service treatment records showed a preexisting headache disorder (not migraines). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, whatever it is, causes him. Id. Accordingly, the Board has recharacterized the Veteran's original claims to encompass any and all psychiatric disorders and any headache disorder reasonably raised by the record and such is reflected on the title page. 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 Unfortunately, a remand of the Veteran's claims on appeal is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran seeks service connection both for a psychiatric disorder and for a headache disorder. According to the available service treatment records covering his period of active duty there were no complaints or treatments for any psychiatric disorder. His June 1987 enlistment examination noted frequent headaches and the examiner noted that the Veteran had preexisting mild, constant, frontal headaches for which he occasionally took aspirin or Tylenol. It was also noted that a C-scan in 1981 had been negative and that the Veteran denied losing work due to his symptoms. Only one complaint of headache in April 1991 is found during active duty. Service treatment records for his period of Reserve service, or private treatment records dated during this time period and associated with the file, show headache complaints in December 2002 and July 2004 as well as a diagnosis of depression in January 2003. A service treatment record dated in either January or June 2003 also noted that the Veteran had been taking Lexapro since November 2002, was currently being evaluated for a Medical Board, and that a psychological evaluation had been performed. Available service personnel records indicate that the service contemplated medically discharging the Veteran from the Reserve before his retirement in June 2008 because he was taking medication for depression. It is important to note that active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). The presumptions of service connection found under 38 C.F.R. §§ 3.307 and 3.309, to include those related to the presumption of soundness and aggravation, do not apply to periods of ACDUTRA and INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Thus, while the Veteran achieved veteran status from his active service from July 1987 to May 1993, this veteran status does not apply to the subsequent periods of training duty without a showing of injury or (in the case of ACDUTRA) disease incurred or aggravated in the line of duty. Thus, in this appeal, the Board must be concerned with all the Veteran's verified periods of ACDUTRA as well as his period of active duty. Depression, bipolar disorder, and migraine headaches are diseases rather than injuries; therefore, periods of INACDUTRA are not applicable to these claims for service connection because the only diseases that may be service-connected for incurrence during such duty periods are acute myocardial infarction, cardiac arrest, or cerebrovascular accident. See 38 C.F.R. § 101(24). The Board notes that there is no indication in the record whether the Veteran was in ACDUTRA or INACDUTRA status when the headaches were noted in December 2002 and July 2004 or when depression was diagnosed in January 2003 or noted in June 2003. The Board also observes that most of the Veteran's service personnel records have not been obtained. As the dates of periods of ACDUTRA may be integral to the Veteran's claims, further efforts should be made on remand to obtain the Veteran's complete service personnel records so his periods of ACDUTRA can be verified. In addition, the Board's review of the available service treatment records failed to locate any discharge examination from active duty in approximately May 1993, or any discharge examination from the Reserve in approximately May 2008, or the psychological evaluation done in 2003. Further, it is not clear whether the RO ever attempted to obtain remaining service treatment records for the Veteran from the address provided by the Air Force Reserve Command in a September 2008 memorandum found in the file. As part of its duty to assist, VA is obligated to make reasonable efforts to obtain evidence necessary to substantiate a veteran's claim, including service personnel records, service treatment records, and other relevant information in its custody or that of another federal agency. 38 C.F.R. § 3.159(c)(2). Accordingly, because VA is on notice that outstanding service personnel records and service treatment records might exist that are pertinent to the Veteran's claims for service connection, an attempt to obtain such records should be made on remand. Id.; see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Concerning the Veteran's claim for an acquired psychiatric disorder, the Board finds that, for the reasons stated below, the current medical evidence found in the claims file is inadequate to determine whether the Veteran has a currently diagnosed psychiatric disorder that is related to service. Therefore, on remand the Veteran shall be scheduled for a new VA mental examination and medical opinion. In his May 2009 Notice of Disagreement, the Veteran contended that his depression disorder arose during his time in the Air Force Reserve, apparently during one of his normal Unit Training Assemblies (UTA) weekends. During his informal RO hearing, he testified that he was diagnosed with bipolar while with the Reserve in 2001, but was never seen in service for a psychiatric disorder. His wife testified at the same time that she saw the Veteran develop symptomatology in 1991 while he was still on active duty. As noted above, service treatment records and medical records associated with the claims file do not show any psychiatric care or complaint during active duty until the Veteran was diagnosed with depression by Dr. S.L.M. in January 2003 when he was in the Reserve. Treatment records from Dr. S.L.M. show that the Veteran was prescribed medication for about a year when his symptoms appeared to have ended. In correspondence dated in November 2009, Dr. S.L.M. recited that he first treated the Veteran for a bout of severe depression in late 2002 and January 2003 when the Veteran said that he had been experiencing these depressive symptoms for at least two years. Dr. S.L.M. noted that the Veteran responded well to medication, had remained stable after he stopped taking the medicine, and was recently diagnosed at VA for a borderline bipolar disorder for which he was not taking any medication. Dr. S.L.M. thought that the Veteran's depressive symptoms began during military service and that it was at least as likely as not that his depression was the result of military service and the stresses involved in service. The Board further notes that the Veteran told the July 2008 VA examiner that he had his first manic episode five years before, or in 2003 while in the Reserve. He said that he took Lexapro for about three years and that his symptoms improved over time. Diagnosis was bipolar affective disorder type I, most recent episode hypomanic with history of rapid cycling, currently in partial remission with mild symptoms. The VA examiner opined that the Veteran met the criteria for a bipolar type I disorder but did not meet the criteria for a major depressive disorder. It also appears that the VA examiner did not have access to the claims file. Based on the foregoing, the Board finds that a remand is warranted to afford the Veteran a VA examination and medical opinion. The duty to assist requires that VA afford a veteran a medical examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d). Here, the evidence is in conflict over the diagnosis of any current psychiatric disability. In addition, the positive nexus opinion from his private physician states his depressive symptoms arose during his time in the Reserve, but as of this date VA has not verified any periods of ACDUTRA. The private treatment records of Dr. S.L.M. also suggest that the Veteran has not had a current depressive disorder for several years and they do not show any treatment for a bipolar disorder. Therefore, his November 2009 statement is not adequate to provide a grant of service connection for this claim at this time. Finally, while the Veteran was provided a VA mental examination in July 2008, the Board notes that this examiner did not have access to the claims file and failed to provide a medical opinion on the etiology of either depression or a bipolar disorder. Therefore, on remand the RO/AMC shall schedule the Veteran for a thorough and adequate VA examination of his claimed psychiatric disorder in order to obtain a medical opinion as to whether any currently diagnosed psychiatric disorder, such as depression or a bipolar disorder, was incurred during a period of active duty or during a verified period of ACDUTRA. Concerning the Veteran's claim for service connection for a headache disorder, to include migraines, the RO has adjudicated this claim under two theories: that the Veteran was not entitled to direct service connection for a migraine headache disorder incurred during his period of active duty and that any headache disorder which preexisted his period of active duty beginning in July 1987 was not aggravated during his service. The Board notes that the Veteran has also advanced a third theory in his June 2010 statement and his representative's October 2010 brief when he claimed that his migraines began after he injured his back. The Veteran is service-connected for lumbar degenerative disease with S1 left radiculopathy. Generally, in order to prevail on the issue of direct service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection also can be granted for a preexisting disease considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.303, 3.306. In addition, the law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore 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. The Board observes that the Veteran's testimony during his informal hearing at the RO in October 2009 about having headaches while on active duty in Germany and never going to sick call out of fear about being discharged from service and his wife's testimony that he had headaches at least once a month are competent evidence to show possible in-service occurrence of a disease, because headaches are a type of disorder capable of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus); see also Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007) (holding that medical evidence is not always required to establish the elements of in-service incurrence and nexus). The Board notes that the July 2008 VA examination diagnosed migraine headaches, but the examiner failed to provide a medical opinion on whether migraine headaches were related to service, or whether the Veteran's preexisting headache disorder was aggravated during service, or whether any headache disorder, including migraines, was secondary to his service-connected back disorder. Correspondence from the Veteran's private physician, Dr. S.L.M., dated in November 2009 recited that the Veteran developed headaches on active duty between 1989 and 1993 and such was at least as likely as not a result of his military service; however, Dr. S.L.M. never discussed whether a headache disorder preexisted service or was aggravated during service and never discussed the post-discharge diagnosis of migraine headaches. Therefore, on remand, the RO/AMC shall schedule the Veteran for a thorough and adequate VA examination of his headache disorder in order to obtain a medical opinion as to whether any currently diagnosed migraine disorder was incurred during a period of active duty or during a verified period of ACDUTRA, or whether a preexisting headache disorder was aggravated during his period of active duty or during a verified period of ACDUTRA, or whether any headache disorder, to include migraines, was caused or aggravated by his service-connected back disorder. Finally, the Board's review of duty-to-assist letters sent by the RO to the Veteran regarding all the claims currently on appeal discloses that the Veteran has not received a VCAA notice regarding the information and evidence necessary to satisfy a secondary service connection claim. Therefore, on remand, the Veteran shall be provided with proper VCAA notice pertinent to his secondary service connection theory for seeking service connection for a headache disorder. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice, pursuant to the VCAA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the requirements for establishing secondary service connection pursuant to 38 C.F.R. § 3.310, for his claim for service connection for a headache disorder, including migraines, to include as secondary to his service-connected back disability. 2. The RO/AMC shall take appropriate steps to secure all of the Veteran's active duty and U.S. Air Force Reserve service treatment records and all of his service personnel records, including a psychological evaluation done in 2003 and any discharge examinations in approximately May 1993 and May 2008 and a breakdown of any periods of ACDUTRA or INACDUTRA, through official channels or from any other appropriate source. These records should be associated with the claims file. If there are no additional service treatment records or service personnel records, documentation used in making those determinations should be set forth in the claims file. 3. After receipt of the requested information, the RO/AMC shall determine whether the Veteran was in ACDUTRA or INACDUTRA duty status in December 2002 and July 2004 (when he complained of headaches); and in January 2003 and June 2003 (when he was diagnosed or noted with depression). 4. The RO/AMC shall contact the Veteran and his representative and obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the Veteran for his psychiatric and headache disorders and whose records are not found within the claims file. Of particular interest are any outstanding records of evaluation and/or treatment from any VA clinic or medical center. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims file. 5. After receipt of the requested information, the Veteran shall then be afforded an appropriate VA mental examination so as to ascertain the extent, nature, and etiology of any acquired psychiatric disorder. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner in conjunction with conducting the examination of the Veteran. The examination report should reflect a review of the claims folder. Following this review, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to comment on: (a) Whether any psychiatric disorder is currently manifested and, if so, a diagnosis of that disorder should be made; and (b) Whether it is at least as likely as not (a 50 percent probability or more) that any such currently manifested psychiatric disorder is etiologically related to the Veteran's period of active duty from July 1987 to May 1993 or to any verified period of ACDUTRA. 6. After receipt of the requested information, the RO/AMC shall schedule the Veteran for an appropriate examination of his claim for service connection for a headache disorder, to include migraines. The claims file must be made available to and reviewed by the examiner. The examiner shall note such review, and identify important information gleaned therefrom in an examination report. All necessary tests and studies shall be conducted. The examiner shall address the following opinion requests: (a) Whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed migraine headache disorder originated with any event or incident during the Veteran's period of active service from July 1987 to May 1993, or during any verified period of ACDUTRA. (b) If not, whether it is at least as likely as not that any currently diagnosed headache disorder was aggravated (permanently worsened) by an increase in disability during his period of active duty or during a verified period of ACDUTRA beyond the natural progression of the disease. (c) If not, whether it is at least as likely as not that any currently diagnosed headache disorder was caused or aggravated by his service-connected back disorder. 7. Each examiner should provide a complete rationale for all opinions and conclusions reached. It is imperative that each examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records and the Veteran's lay assertions. In providing these opinions, each examiner also should discuss the medical opinion of Dr. S.L.M. in November 2009 as well as the findings of the relevant July 2008 VA examination, and explain why he or she agrees or disagrees with the conclusions each reached about the Veteran's psychiatric or headache disorder and any relationship between the Veteran's diagnosed disorder and his military service. Any opinions expressed must be accompanied by a complete rationale. 8. Thereafter, the RO/AMC shall readjudicate the Veteran's claims on appeal. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for the purpose of appellate disposition. 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). These claims 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). _________________________________________________ F. JUDGE FLOWERS 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).