Citation Nr: 1310181	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  07-27 516	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a headache condition.

2.  Entitlement to service connection for a headache condition.

3.  Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II (diabetes).

4.  Entitlement to service connection for erectile dysfunction (ED), to include as secondary to diabetes.


REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J.A. Flynn, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from April 1968 to May 1971 and from October 1990 to May 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, inter alia, denied service connection for hypertension and ED, and confirmed and continued the previous denial of service connection for headaches.

This matter was previously before the Board, most recently in January 2011, when the Board remanded the Veteran's claims in order to provide the Veteran with additional notice, obtain additional medical records, and obtain supplemental medical opinions regarding the etiology of the Veteran's hypertension and ED.  Additional notice was provided, additional VA treatment records were obtained, and a supplemental medical opinion was provided in January 2011.  As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board finds that there has been effective compliance with the Board's remand instructions.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.)

The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action on his part is required.

FINDINGS OF FACT

1.  In an unappealed February 2004 rating decision, VA denied the Veteran's claim of entitlement to service connection for headaches.

2.  The evidence received since the February 2004 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for headaches.

3.  The weight of the probative evidence is against a finding that the Veteran's hypertension is the result of, or is aggravated by, the Veteran's military service or any other service-connected conditions. 

4.  The weight of the probative evidence is against a finding that the Veteran's ED is the result of, or is aggravated by, the Veteran's military service or any other service-connected conditions. 


CONCLUSIONS OF LAW

1.  The February 2004 rating decision denying the Veteran's claim of entitlement to service connection for headaches is final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003).

2.  New and material evidence has been received sufficient to reopen the claim of service connection for headaches.  See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2012).

3.  The Veteran's hypertension was not incurred in or aggravated by active military service, it was not the result of or aggravated by a service-connected disability, and a relationship between hypertension and active military service may not be presumed.  See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2012).

4.  The Veteran's ED was not incurred in or aggravated by active military service, and it was not the result of or aggravated by a service-connected disability.  See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim decided herein.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).  

The Board must assess the credibility and weight of all evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Duties to Notify and Assist

The Veteran's petition to reopen his claim for service connection for headaches has been granted, as discussed below.  As such, the Board finds that any error related to the Veterans Claims Assistance Act of 2000 (VCAA) with regard to this claim is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

With respect to the Veteran's claims of entitlement to service connection for hypertension and ED, under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Before initial adjudication of the Veteran's claim, a letter dated June 2006 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187.  Further, the June 2006 letter informed the Veteran of how VA determines the appropriate disability rating and effective date to be assigned when a claim is granted.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also concludes that VA's duty to assist has been satisfied.  The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file.  Private treatment records have been obtained to the extent possible.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.  Therefore, the Board finds that VA has satisfied its duty to obtain all relevant records.  The Veteran additionally declined the opportunity to provide testimony before a Veterans Law Judge.  Accordingly, the Board finds that the duties to notify and assist have been met, and the Board will proceed with a decision.


New and Material Evidence

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R.       §§ 3.104, 20.1100, 20.1103 (2012).  A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.  See 38 U.S.C.A. § 5108 (West 2002).  If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition.  See id.; see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.156 (2012); Smith v. West, 12 Vet. App. 312, 314 (1999) (noting that if the evidence is new but not material, the inquiry ends and the claim cannot be reopened.)

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (noting that when determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of a witness.)  While credibility is to be presumed, the Court has also held that lay statements offering medical opinions cannot provide a basis on which to reopen a claim for service connection.  See Moray v. Brown, 5 Vet. App. 211 (1993); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (stating that "[l]ay assertions of medical causation . . . cannot suffice to reopen a claim under 38 U.S.C.A. 5108.")

If it is determined that new and material evidence has been submitted, the claim must be reopened.  VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminating the concept of a well-grounded claim).

The Board notes that regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  The Board must also note that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

Turning to the facts in the instant case, the Veteran's claim of entitlement to service connection for headaches was last finally denied in a February 2004 rating decision.  The RO found that the Veteran had not presented evidence establishing that his headaches were due to an undiagnosed illness, that they were incurred in or aggravated by military service, and it found that the Veteran had not submitted evidence indicating that the Veteran suffered from a chronic illness.  The Veteran did not appeal the decision, and the rating decision became final.  See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003).  

The Board must first determine if new and material evidence has been submitted since the time of the February 2004 final rating decision.  See 38 U.S.C.A. § 5108 (West 2002).  The Board notes initially that the Veteran has advanced a new theory of entitlement with respect to the causation of his headache disability.  Instead of undiagnosed illness, the Veteran has alleged that he experiences headaches as a result of medications that he takes in treatment of his service-connected conditions.  The Veteran has additionally suggested, for example in a December 2011 VA treatment note, that he experienced headaches occasionally since serving in Vietnam.  This evidence is new because it has not previously been submitted to VA.  

Regarding the materiality of the newly submitted evidence, the Veteran's previous claim for service connection was denied, in part, because the RO found no evidence that the Veteran suffered from a chronic illness.  The December 2011 medical record in which the Veteran complained of experiencing headaches since Vietnam relates to an unestablished fact necessary to substantiate the claim.  The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim.  See Justus v. Principi, 3 Vet. App. 510 (1992).  Thus, this evidence is new and material and meets the "low" threshold required by Shade in order to reopen the claim.  As new and material evidence has been received, the claim for service connection for headaches is reopened.

Service Connection

The Veteran essentially contends that he suffers from hypertension and ED secondary to service-connected diabetes.  While the Veteran has not argued that his conditions are directly related to active duty service, in the interest of completeness, the Board will also analyze the Veteran's claims on a direct basis.  

Service connection may be granted for disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992).  In order to establish service connection for a claimed disorder on a direct basis, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service.  See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).  The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature.  For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  For certain chronic diseases set forth in 38 C.F.R.    § 3.309, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases).  Hypertension appears among the chronic diseases listed in 38 C.F.R. § 3.309, and the Board will accordingly consider whether the Veteran has demonstrated a continuity of symptomatology with regard to this condition.  Sexual dysfunction, however, is not among the chronic diseases set forth in 38 C.F.R. § 3.309, and therefore service connection for this condition cannot be established based solely on a continuity of symptomatology.  See Walker.

Furthermore, service connection may be granted on a presumptive basis for certain chronic diseases, including hypertension, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the veteran's separation from active military service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  See 38 C.F.R. § 3.310(a) (2012); see also 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.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Turning to the facts in the instant case, regarding the first Hickson/Wallin element, evidence of a current disability, the evidence of record indicates that the Veteran has been diagnosed with hypertension and ED.  The first Hickson/Wallin element, evidence of a current disability, is accordingly met.  

With regard to the second Wallin element (required to support a claim for secondary service connection), a service-connected disability, the Veteran is service-connected for an acquired psychiatric disorder, residuals of a fractured right great toe, diabetes, cold sweats, irritable bowel syndrome, post-traumatic carpal tunnel syndrome, and a scar of the right great toe.  The second Wallin element is accordingly met.  

With regard to the second Hickson element (required to support a claim for direct service connection), an in-service injury or disease, as noted above, the Veteran has not directly stated that he suffered from hypertension or ED during active duty service.  Indeed, the Veteran's service treatment records are entirely silent for any treatment for ED.  With regard to the Veteran's claimed hypertension, the Board observes no elevated blood pressure readings in-service.  Instead, the Veteran's blood pressure readings in-service were as follows (in mmHg):

      April 1971 		120/90 
      November 1990 	116/76
      December 1990	122/78
      April 1991		138/94; Veteran denied a history of high blood pressure

The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including experiencing readily-observable physical symptoms associated with ED and hypertension.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  In the instant case, however, the Veteran does not claim that he experienced any symptoms associated with his hypertension and ED during active duty service.  Indeed, as noted above, the Veteran instead claims that his hypertension and ED are secondarily related to his DM.  Accordingly, the Board finds that the second Hickson element, in-service injury or disease, is not met, and the Veteran's claim for direct service connection fails on this basis alone.

The Board's analysis continues, however, with respect to the Veteran's claims for service connection on a secondary basis.  With respect to the third Wallin element, medical nexus, the Veteran received a VA examination in September 2006.  The examiner took a history of the Veteran's hypertension and sexual dysfunction, noting that both diagnoses preceded or were contemporaneous with his diagnosis of diabetes.  The examiner concluded that the Veteran's hypertension was not due to or worsened by his diabetes because they were diagnosed at the same time.  Similarly, the examiner concluded that the Veteran's ED was not related to his diabetes because it preceded his diagnosis with diabetes.  As the Board noted in its January 2011 Remand, although the examiner's rationale explains why the Veteran's hypertension and erectile dysfunction were not caused by his service-connected diabetes, the examiner did not adequately explain the conclusion that hypertension and ED were not aggravated by the Veteran's service-connected diabetes.  In light of this deficiency, in January 2011, the Board remanded the Veteran's claims in order to obtain a supplemental medical opinion.  

In January 2011, the examiner again reviewed the Veteran's claims file and noted that the Veteran's diabetes was diagnosed in 2002.  The examiner noted that the Veteran was diagnosed with hypertension contemporaneously, and ED was diagnosed more than one year before the Veteran's diagnosis with diabetes.  The examiner noted that the Veteran's diabetes was mild in severity and was controlled by diet alone from 2002 until 2010.  In January 2010, the Veteran was placed on a small dose of oral medicine daily.  The examiner noted that the Veteran's urinalysis was normal, with no abnormal proteinuria or albuminuria.  The examiner also noted that the Veteran was obese.  After consideration of these factors, the examiner opined that the Veteran's hypertension was less likely than not secondarily related to his diabetes.  The examiner found that the Veteran's diabetes did not aggravate his hypertension because the examiner saw no evidence of renal disease, proteinuria, and no diabetic retinopathy.  The examiner opined that the Veteran's ED was less likely than not secondarily related to his diabetes.  The examiner found that the Veteran's diabetes did not aggravate his ED because the Veteran's diabetes was mild in severity, mostly diet-controlled until recently, and the Veteran's A1C blood reading was recently 6.5.  Upon review of this evidence, the Board finds that the VA examiner has provided a probative opinion that is based on a complete review of the record.  

The Board has also considered the lay evidence of record.  For example, in July 2006, both the Veteran and his spouse stated that the Veteran experienced hypertension and sexual dysfunction "ever since he started taking the medicines prescribed for him" from VA clinicians.  

To the extent that the Veteran himself believes that his hypertension and ED are related to his diabetes, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms associated with hypertension or ED).  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Indeed, VA provided the Veteran with examinations based on the competency of these observations.

Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, namely, the etiologies of hypertension and ED, the issue of causation of such conditions is a medical determination outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  Thus, although the Board has carefully considered the lay contentions of record both from the Veteran and from others suggesting that the Veteran's conditions are related to his other service-connected conditions, including diabetes, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's hypertension, ED, and his diabetes, with greater probative weight than these lay opinions.  

While the Veteran does not generally claim that his hypertension is directly related to military service and his claim for direct service connection fails on the basis of the second Hickson element above, in order to afford the Veteran with every possible consideration, the Board has also examined the record for any suggestion that the Veteran has presented a continuity of symptomatology with respect to his hypertensive disorder.  The Board observes the following blood pressure readings soon after service (in mmHg):

      February 1988	128/66
      March 1992		124/86; Veteran denied a history of high blood pressure
      November 1992 	131/84
July 1993		120/80 in the right arm; 125/80 in the left arm
December 1993	126/78, 144/90 (clinician noted borderline hypertension) June 1994 		128/90
April 1995		120/90
July 1995		129/84
September 1995	130/86
November 1995	118/86
March 1996		124/77
October 1996		108/58
March 1998		120/80
November 2000	144/90
October 2001		120/80
February 2002	130/84
August 2002		136/86
October 2002		130/78
November 2002	120/80
December 2002	120/70
July 2003		165/89, 150/90
August 2003		152/92, 152/90, 152/90  
July 2004		140/72
August 2005		128/76 in the right arm; 126/76 in the left arm  

From January 2006 onward, the Veteran's high blood pressure was treated with medications.  Upon review of these blood pressure readings, the record does not support a continuity of elevated blood pressure readings since separation from active duty service.  Furthermore, the record does not support an award of service connection on a presumptive basis.  The first notation of borderline hypertension occurred over two years following the Veteran's separation from service in 1991, and the Veteran's blood pressure readings were consistently normal for years after that date.  The Veteran's hypertension was first treated with medication in 2006, approximately 15 years following separation from service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised).  Furthermore, the Veteran himself has not argued that he has experienced elevated blood pressure since service.  Accordingly, the Board finds that the Veteran's claim for service connection for hypertension cannot be established based on a continuity of symptomatology.

The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claims.  See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The preponderance of the competent and probative evidence of record indicates that the Veteran's hypertension and ED are not related either to his military service or to his service-connected diabetes.  The benefit sought on appeal is accordingly denied. 
 

ORDER

The claim for service connection for headaches is reopened, and the appeal is allowed to this extent.

Service connection for hypertension, to include as secondary to service-connected diabetes, is denied.

Service connection for erectile dysfunction, to include as secondary to service-connected diabetes, is denied.


REMAND

Having reopened the Veteran's claim of entitlement to service connection for headaches, the Board finds that additional development is required before the Board may adjudicate the claim.  VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Turning to the facts in the instant case, the Veteran has complained of headaches to clinicians on a number of occasions, and in December 2011, the Veteran indicated that he had experienced them occasionally since his active duty service from 1968 to 1971.  The Veteran also broadly contends that he has experienced headaches as a result of medications that he takes in treatment of his service-connected conditions.  The Board notes that the Veteran is service connected for the following conditions: an acquired psychiatric disorder, residuals of a fractured right great toe, diabetes, cold sweats, irritable bowel syndrome, post-traumatic carpal tunnel syndrome, and a scar of the right great toe.  On remand, the Veteran should be afforded with an examination in which a history of the Veteran's headaches is solicited, and opinions should be provided as to the relationship, if any, between the Veteran's headaches and his active duty service and other service-connected disabilities.

Accordingly, the case is REMANDED for the following actions:

1.  Copies of pertinent updated treatment records should be obtained and added to the claims folder.

2.  Following completion of the above, schedule the Veteran for a VA examination with a clinician of appropriate expertise to determine the nature, extent, and etiology of the Veteran's headache condition.  All indicated tests and studies must be performed.  The claims folder must be reviewed by the examiner in conjunction with the examination.  Following a review of the service and post service medical records, as well as the Veteran's statements, the examiner must describe the nature of the Veteran's headache condition in detail, and offer the following opinions:  

a)  Is it at least as likely as not (that is, a 50 percent probability or greater) the Veteran's headache disability had its onset in service or is otherwise related to service?  

b)  Is it at least as likely as not that the Veteran's headache disability was caused by any of the Veteran's service-connected disabilities, to include any medications taken to treat those disabilities?

c)  Is it at least as likely as not that the Veteran's headache disability was aggravated (that is, permanently worsened) by the Veteran's service-connected disabilities, to include any medications taken to treat those disabilities?

3.  Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim.  If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded.  See 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 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).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs