Citation Nr: 1308591 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-13 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1965. He also had additional service in the in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran has not been afforded a VA examination in connection with his claim. In a November 2008 notice of disagreement, the Veteran's representative asserted that the Veteran's preexisting headaches were aggravated in service and "intensified to the point where he had to be hospitalized." A review of the service treatment records shows that the Veteran was treated for headaches in October 1962, June 1963, August 1963, and May 1964. In a March 1962 report of medical history, the Veteran denied having frequent or severe headaches upon his enlistment. However, a June 1963 service treatment note documented the Veteran's report that he was having headaches for ten years. Similarly, during his March 1965 separation examination, he reported that he had a history of migraine headaches "since 8 years." In post-service private treatment records, the Veteran reported that he had a history of migraine headaches that began when he was a child. Specifically, he stated that they started when he was four years old. See January 2001, February 2002, March 2002, April 2002, and December 2003 private treatment notes. As noted above, the Veteran has not been afforded a VA examination in connection with his current claim. Based on the foregoing, the Board finds that a medical opinion is necessary to determine whether the Veteran had a preexisting migraine headache disorder, and if so, whether it was aggravated by his military service. Therefore, the case must be remanded for a VA examination and etiology to determine the nature and etiology of any current migraine headache disorder. Moreover, it appears that there may be additional medical records that are pertinent to the claim. In this regard, the most recent VA treatment records associated with the claims file are dated in February 2008. Therefore, attempts should be made to obtain any outstanding medical records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited, to any VA treatment records dated after February 2008. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any migraine headaches that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether the Veteran's current headache disorder clearly and unmistakably preexisted his military service. If it is determined that a headache disorder preexisted service, the examiner should opine as to whether the preexisting disorder clearly and unmistakably underwent an increase in severity during that period of service. If the examiner determines that there was an increase in severity, the examiner is asked to specify either that: a) the increase in severity was consistent with the natural progression of the disease, or (b) that the increase represented a permanent worsening or "aggravation" of the disease beyond its natural progression. In making this determination, the examiner should consider that the temporary or intermittent flare-ups of a preexisting injury or disease is not sufficient to be considered "aggravation" unless the underlying condition, as contrasted with symptoms, worsened. If the examiner determines that the migraine headaches did not preexist service, he or she should sate whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, including his symptomatology therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ JESSICA J. WILLS 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).