Citation Nr: 1311510 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-41 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1993 to March 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Chicago, Illinois. The Board notes that the issue of entitlement to service connection for radiculopathy of the right upper extremity, left upper extremity, and left lower extremity and radiculopathy with sciatica of the right lower extremity were also listed in the July 2009 statement of the case. Service connection for neuropathy of the right upper extremity, left upper extremity, and left lower extremity and radiculopathy and sciatica of the right lower extremity were granted by the RO in a May 2012 rating decision. As such, these issues have been resolved, and are not before the Board. See 38 C.F.R. § 20.200 (2012); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in December 2012. A transcript of those proceedings has been associated with the Veteran's electronic claims file, known as Virtual VA. At the Veteran's December 2012 hearing he raised the issue of entitlement to increased initial ratings for all ratings assigned in the May 2012 rating decision, including neuropathy of the right upper extremity, left upper extremity, and left lower extremity, and radiculopathy and sciatica of the right lower extremity. These issues have not been adjudicated by the agency of original jurisdiction, and the Board does not have jurisdiction over them. Therefore, they are referred to the agency of original jurisdiction for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the record reveals that further action on the claim on appeal is warranted. The Veteran asserts that he has migraine headaches which had their onset during active service. The Veteran alleges that his headaches first began after a July 2005 car accident, after which he had severe back and neck pain and headaches approximately 1 to 2 times per week. After discharge from service the Veteran was in another car accident which worsened his headaches, so that they now occur more frequently. First, remand is warranted to obtain an adequate VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A June 2006 VA examination was provided. The Veteran reported a history of car accidents and headaches to the examiner. The examiner opined that because the Veteran's headaches were not documented and was not due to a head injury, it would be unlikely for headaches to occur as a result of flexion-extension injury on a periodic basis. The examiner indicated that he had reviewed the claims file but had found no discussion of any automobile accidents or evaluations for headaches. The Veteran's service treatment records (STRs) include several references to headaches. In October 2005 the Veteran reported headaches of 3 weeks, and the examiner noted that it could be migraines. In November 2005, the Veteran reported that he also occasionally woke up with headaches. Headache is also listed as one of the Veteran's medical problems in a February 2006 record. The Veteran's STRs also make numerous references to chronic back pain following a July 2005 car accident. A January 2013 Disability Benefits Questionnaire completed by a VA physician indicates that the Veteran reported throbbing pain in the center of the head that started after an accident during active duty. The physician diagnosed chronic headaches, but did not provide any discussion of the etiology of these headaches or their possible relationship to service. The 2006 VA examiner found no headache disorder but there is now a diagnosis of chronic headaches. Additionally, the VA examiner did not find any discussion of an automobile accident or headache evaluations, but there were such notations in the Veteran's STRs. It is thus unclear whether the examiner had access to the Veteran's STRs or reviewed them. Remand for a new examination and opinion is thus required. Second, remand is required to obtain federal records. Where VA medical treatment records are material to the issue on appeal and are not included within the claims file, a remand is necessary to acquire such VA records, because VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The claims file shows that the Veteran has received medical treatment at VA facilities in Chicago, Illinois, and Phoenix, Arizona. However, only some of the Veteran's VA treatment records appear to have been obtained and associated with the claims file. All additional, pertinent VA treatment records from the VA facilities in Chicago and Phoenix should be obtained, associated with the claims file, and reviewed before further adjudication of the Veteran's claim is performed. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the VA Medical Center Chicago, Phoenix VA Health Care System, and affiliated facilities all outstanding, pertinent records of treatment of the Veteran since his separation from service in March 2006. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. After any additional records are associated with the claims file, provide the Veteran with an examination by an appropriate VA physician to determine the nature and etiology of his headaches. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. The examiner must provide an opinion, in light of the examination findings and the service and post-service medical evidence of record, whether the Veteran's headaches are at least as likely as not (50 percent or greater probability) caused or aggravated by military service. The examiner must specifically address the Veteran's STRs, including notations of reports of headaches and a car accident in 2005. The examiner must also address the Veteran's testimony that he has had continuous, but intermittent, headaches since active service. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on his claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. MILLIKAN Acting 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).