Citation Nr: 1310854 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 06-03 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for chronic headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969, to include service in Vietnam. By its decision of September 30, 2001, the Board of Veterans' Appeals (Board) denied entitlement of the Veteran to service connection for chronic headaches and determined, as well, that new and material evidence had not been received to reopen a previously denied claim for service connection for a skin disorder. An appeal followed to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal thereafter jointly moved the Court to vacate and remand the issue of service connection for headaches. The parties stipulated that the Board's denial of the claim to reopen for service connection for a skin disorder should not be disturbed. The Court by its May 2012 order granted the parties' motion as to the claim for service connection for headaches and dismissed the appeal as to the claim to reopen for a skin disorder. The case has since been returned to the Board for further review. This appeal is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The basis of the parties' joint motion before the Court was that the Board failed to provide adequate reasons and bases for its denial, citing the absence of any discussion of continuity of symptomatology identified at least in part by inservice evidence of headaches and the Veteran's own assertions as to the existence of his headaches. Additionally, the parties concluded that remand was warranted for VA to provide an adequate medical examination, it being noted that the nexus opinion rendered by a VA examiner in June 2010 failed to consider the Veteran's statements during the examination regarding the continuity of symptomatology of his headaches. On the basis of the foregoing, remand for additional evidentiary development in the form of additional neurological evaluation and medical opinion is deemed necessary. In addition, the record reflects that the AMC by its rating action in May 2011 granted service connection for residuals of a head injury and assigned a 40 percent evaluation under 38 C.F.R. § 4.124a, DC 8045, for residuals of traumatic brain injury. That 40 percent rating entailed, in part, the assignment of a level of severity of "2" under the subjective symptoms facet, which may include headaches. It is unclear whether the AMC rated the Veteran's brain injury on the basis of subjective complaints of headaches and it is equally unclear whether any headache disorder, separate and apart from his head injury, is now present that bears a nexus to service. Remand is needed for additional evidentiary and procedural development as to the foregoing. Accordingly, this case is REMANDED for the following actions: 1. Clarify whether for rating purposes the Veteran's service-connected residuals of a head injury, rated on the basis of traumatic brain injury, encompass his subjective complaints of headaches. 2. If headaches are part and parcel of the service-connected residuals of a head injury based on action taken in (1) above, ascertain from the Veteran whether or not he wishes to continue his appeal for service connection for headaches separate and apart from his inservice head trauma. 3. Thereafter, if headaches have not been rated by the AMC as a manifestation of service-connected residuals of a head injury and/or if the Veteran is claiming service connection for a headache disorder separate and apart from his head injury, then afford him a VA neurological examination for the purpose of ascertaining the nature and etiology of his claimed headaches. His VA claims file should be made available to the examiner in conjunction with the examination and the report of that examination should indicate specifically whether the claims folder was made available and reviewed. That examination should entail a complete medical history, a thorough clinical evaluation, and any diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should then be set forth. The VA examiner is asked to provide medical opinions as to the following questions, offering a complete rationale for each opinion provided, with citation to pertinent items of evidence in the record: Does the Veteran now suffer from headaches, and, if so, is it at least as likely as not (50 percent or more probability) that any of his headaches are the direct result of inservice head trauma or any other incident of military service, or are otherwise reasonably attributable to that service? Whether there is in existence a headache disorder separate and apart from residuals of an inservice head injury should be fully addressed by the VA examiner and, in addition, an opinion should be offered as to whether it is at least as likely as not that any such separate headache disorder originated in service or is otherwise reasonably attributable to military service. The VA examiner is advised that the Veteran's complaints of headaches in service and after service, as reflected in the record, are to be considered by him/her in rendering the requested opinions as to service onset and nexus to service. Use by the VA examiner of the at least as likely as not language in responding is required. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. 4. Lastly, readjudicate, as applicable, the issue of the Veteran's entitlement to service connection for headaches, be they related and/or unrelated to inservice head trauma, and if the benefit sought is not granted to the Veteran's satisfaction, then provide him with a supplemental statement of the case and afford him a reasonable period in which to respond, prior to a return of the case to the Board for further review. No action by the Veteran is required until he receives further notice. 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). _________________________________________________ ROBERT E. SULLIVAN 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).