Citation Nr: 1307126 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 06-06 957A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for migraine headaches, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 30, 1990 to May 20, 1991, and from February 7, 2003 to December 27, 2004. He also served on active duty for training from June 27 to November 22, 1983, and periods of inactive duty for training. This case comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a December 2004 rating decision of the VA Regional Office (RO) in Washington, D.C. that denied entitlement to service connection for migraine headaches. The case was certified to the Board by the Philadelphia, Pennsylvania RO. The Veteran was afforded a hearing at the RO in April 2009, and a videoconference hearing in August 2011 before the undersigned Veterans Law Judge sitting at Washington, DC. The transcripts are of record. In January 2012, the Board, in pertinent part, remanded the issues of entitlement to service connection for hypertension, and migraines, to include due to an undiagnosed illness, for further development. In an August 2012 rating decision entitlement to service connection for hypertension was granted. This is considered a full grant of that benefit and the hypertension claim is no longer for appellate consideration. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as rating assigned for the disability and the effective date). Following review of the record, the issue of entitlement to service connection for migraine headaches 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 asserts that he developed migraine headaches during or after deploying and that service connection should be granted. Review of the record indicates that during the Veteran's period of service from February 2003 to December 2004, he voiced complaints in November 2003 that included headaches. On a post deployment questionnaire dated in December 2003, he indicated that he had had symptoms that included headaches during his deployment. However, the Board observes that during a period of training in June 1984, the Veteran related a history of a "throbbing headache" for a day in the frontal region that radiated toward the right temporal area. He reported experiencing headaches annually for which he treated with analgesics that only partially relieved pain. It was also noted that the appellant had a family history of migraines. An assessment of tension/vascular headache was rendered. A November 1995 VA medical examination report diagnosed "likely migraine headaches." As such, there is clinical evidence of record suggesting that headaches may have pre-existed the Veteran's entrance onto active duty. Over the course of the appeal, the Veteran has consistently argued and presented testimony to the effect that he developed migraine headache during active military service. During personal hearings in April 2009 and August 2011, however, it was suggested that headaches might be symptomatic of an undiagnosed illness, or were secondary to service-connected disability. The Board remanded the case in January 2012 for, among other things, a VA examination to determine if chronic headaches were at least as likely as not related to service, or caused by or aggravated by service-connected posttraumatic stress disorder (PTSD). If migraine headaches were not of service onset, the examiner was to provide an opinion as to whether headaches preexisted service, and whether the disorder underwent a permanent, clinically-identifiable increase in severity beyond natural progress during active service. Notably in the February 2012 VA examination report the examiner only stated that headache "is less likely than not [ ] service-connected or aggravated by a service-connected condition." The examiner did not provide any response or opinion addressing whether headaches pre-existed service or were aggravated thereby, as requested in the Board's remand. Moreover, the report is very cursory and fails to provide any clinical rationale for the conclusory finding. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). As such, the February 2012 examination report is inadequate for adjudication purposes because it did not respond to all of the questions presented in the January 2012 remand, and failed to furnish the degree of substantiation necessary to adjudicate a claim for service connection in this regard. The Veteran should be afforded another VA examination as to this matter. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has stated that if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. It must also be noted that since the February 2012 VA examination service connection has also been established for hypertension and sleep apnea. These additional service-connected disorders must also be considered in addressing whether a chronic headache disorder is secondary to or has been aggravated by a service-connected disability. In this regard, an April 2005 VA outpatient record includes an examiner's comment that symptoms suggestive of sleep apnea could include morning headaches. Finally, the Veteran continues to receive outpatient treatment from VA. The most recent clinical records are on Virtual VA and date through March 2012. As VA has constructive possession of additional VA records, they must be retrieved and associated with the other evidence on file. Bell v. Derwinski, 2 Vet.App. 611 (1992). Therefore, records dating from April 2012 to the present should be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Request VA records dating from April 2012 and associate them with the claims folder or Virtual VA. If the records cannot be located, the RO must specifically document the attempts that were made to retrieve them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a neurological examination by an appropriate VA physician. The claims folder, access to Virtual VA and a copy of this remand must be made available to the examining physician. The physician must indicate whether the claims folder and Virtual VA are reviewed. All clinical findings must be reported in detail. The examination report must reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc. Based on a thorough review of the evidence of record to include physical examination findings, the examiner must opine with detailed and complete rationale whether it is at least as likely as not, i.e., whether there is a 50/50 chance that: a) The Veteran currently has migraine headaches that are related to headache symptoms complained of during active duty. b) Whether chronic migraine headaches clearly and unmistakably preexisted active service (as referenced in June 1984). If so, did the disorder undergo a clinically-identifiable permanent, increase in severity beyond natural progress during any period of active military service? c) Whether migraine headaches are proximately due to or the result of a service-connected disability to include PTSD, sleep apnea and/or hypertension, etc., either singly or in combination. d) If migraine headaches are not caused by a service connected disorder, is it at least as likely as not that any service connected disorder or combination of service connected disorders has made the appellant's headache disorder chronically worse? e) Whether it is at least as likely as not that migraine headache disability is due to an undiagnosed illness. The examination report must include well-reasoned rationale for all opinions and conclusions reached. 3. The Veteran must be advised of the consequences of failure to report for a VA examination without good cause, to include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. The RO should ensure that the medical report requested above complies with this remand and its instructions. If the report is insufficient, or if any requested action is not taken or is deficient, it should be returned for correction. Stegall. 5. After taking any further development deemed appropriate, re-adjudicate the issue of entitlement to service connection for headaches, to include due to an undiagnosed disorder. If the benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative 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). _________________________________________________ DEREK R. BROWN 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).