Citation Nr: 1310864 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-30 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether the reduction of the rating for migraine headaches from 50 percent to 10 percent, effective January 1, 2010, is proper. 2. Entitlement to service connection for a seizure disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1987 to June 1991. This matter is on appeal from December 2008 and October 2009 rating decisions of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO) which (in December 2008) denied service connection for a seizure disorder and (in October 2009) reduced the rating for migraine headaches from 50 percent to 10 percent, effective January 1, 2010. In July 2011 a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In an August 2011 decision, the Board determined that the reduction in the rating for the migraine headaches from 50 percent to 10 percent, effective January 1, 2010, was proper and denied restoration of the rating (or an intermediate rating). The Board also remanded the case to the RO for additional development of the claim of service connection for a seizure disorder. The Veteran appealed the Board's August 2011 decision, regarding the denial of a restoration of the rating for migraine headaches, to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2012, the Court granted a Joint Motion for Partial Remand of the parties (the Secretary of VA and the Veteran), who at that time was represented by counsel, and vacated the Board's decision regarding the migraine headaches matter and remanded the case to the Board for readjudication consistent with the Joint Motion. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND Regarding the propriety of the rating reduction for migraine headaches, effective in January 2010, in the Joint Motion for Partial Remand, the parties stipulated that the Board's August 2011 decisional finding (i.e., that the Veteran's migraine headaches showed material improvement that was reasonably certain to be maintained under the ordinary conditions of life) was not supported by adequate reasons and bases. It was noted in part that the Board did not address an October 2009 VA examiner's findings pertaining to resulting work problems, namely, that the Veteran had increased tardiness and absenteeism. At a July 2011 hearing, the Veteran testified as to the negative impact that his headaches had had on his job but that he was currently unemployed. A July 2011 VA outpatient record notes that the Veteran recently lost his job reportedly due in part to a new boss's complaints about the frequency of missed work due to headaches. On September 2011 VA examination to evaluate the seizure disorder, the Veteran reported that he was unemployed and had been fired due to his headaches and his seizure disorder. VA outpatient records (see reports dated in July 2009, April 2010, and July 2010) refer to a headache "calendar" that the Veteran has kept, to chronicle the frequency and duration of his headaches. It is acknowledged that a rating reduction must have been supported by the evidence on file at the time of the reduction; however, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In light of this, and the fact that the criteria for a 50 percent rating for migraines includes frequent migraine attacks productive of severe economic inadaptability, as well as the lay evidence concerning the impact of the Veteran's migraine headaches on his ability to maintain his job, it appears that there exist additional records that would assist in deciding this claim. Such records, to include the Veteran's headache "calendar" and information regarding employment prior to and from the effective date of the rating reduction in January 2010, must be sought to determine whether the severity and duration of the Veteran's migraine headaches resulted in severe economic inadaptability. The Board observes that the Veteran's cooperation will be needed to complete the development sought, and that a governing regulation provides that where evidence or information requested in conjunction with a claim for VA benefits is not received within a year following the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). Regarding the seizure disorder claim, pursuant to an August 2011 Board Remand directive, the Veteran underwent a VA examination in September 2011 to determine whether it was related to service or to a service-connected disability. The VA examiner found that the claimed condition was less likely than not incurred in or caused by injury, event, or illness during service, stating that the Veteran had a seizure disorder that had been worked up and found to be not related to his migraine headaches or to a likely hemorrhage-pituitary apoplexy presumably associated with an underlying adenoma problem. However, the examiner further stated that the cause of the seizure disorder, to include if it was related to service or to some in-service event, was "mere speculation." The examiner noted that "extensive testing" showed it was not related to service-connected migraine headaches but did not indicate one way or another whether migraine headaches may have aggravated the seizures. Additionally, after acknowledging the Veteran's reported history of head injuries in service, the examiner indicated that a specific reason for, or the most likely etiology of, the seizure disorder had not been determined. Besides the absence of an opinion as to whether service-connected migraine headaches may aggravate the seizure disorder, it is not clear from the VA examiner's statement whether an opinion simply cannot be determined due to the state of current medical knowledge or that the etiological question cannot be determined from a multitude of potential factors. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (addressing inconclusive medical opinions). As the VA medical opinion lacks an appropriate explanation for the conclusion drawn by the examiner, the record does not contain sufficient evidence to decide the claim. Further development is necessary to ensure compliance with the Board's remand directive of August 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998),. Accordingly, the case is REMANDED for the following: 1. Ask the Veteran to furnish evidence concerning the frequency and duration of his headaches, and information concerning his employment, prior to and after the effective date of the rating reduction for his migraine headaches in January 2010 (e.g., place(s) of employment, dates of employment, reasons for termination, etc.), and furnish the releases necessary for VA to secure such information from the employer(s). Afford the Veteran the one year period provided under 38 C.F.R. § 3,158 to respond. This would include any headache "calendar" he maintained for treatment purposes. Based on the information provided, the RO should request from the Veteran's former employer(s) information relative to the Veteran's employment, to include dates of employment and the reason(s) for termination. 2. Return the claims file (and any relevant Virtual VA documentation) to the VA examiner who conducted the September 2011 examination and request a more definite opinion as to whether the Veteran's seizure disorder is at least as likely as not (i.e., a 50 % or higher probability) related to his period of active duty from October 1987 to June 1991. Specifically, the examiner should render an opinion as to the most likely etiology for the Veteran's seizure disorder, i.e., whether it is at least as likely as not (a 50 % or higher probability) that the seizure disorder is due to or the result of some an injury, illness, or event in service? If so the examiner is asked to identify with particularity the source of the seizure disorder. Alternatively, the examiner should opine whether it is at least as likely as not (a 50 % or higher probability) that the seizure disorder has been caused or aggravated by service-connected migraines? The examiner should explain the rationale for any opinion given. If the requested opinion cannot be provided without resort to speculation because there are other potential etiologies for the seizure disorder, the examiner should so state AND explain why an opinion cannot be provided without resort to speculation, to include explaining whether an opinion is beyond what may reasonably be concluded based on the evidence of record and current medical knowledge. In formulating the clarifying opinion, the term "aggravation" means a permanent increase in the underlying disability, that is, an irreversible worsening of the seizure disorder beyond the natural clinical course and character of the condition as contrasted to a temporary worsening of symptoms. The term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against causation is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the VA examiner is unavailable, the claims folder should be forwarded to another appropriate provider for review and the opinion sought. 3. After the development sought is completed, adjudicate the claims. If either sought remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case; afford them opportunity to respond,; and then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2012).