Citation Nr: 1312138 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 10-22 647A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for headaches claimed as head injury residuals. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from June 1948 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California. In March 2013, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO; a transcript of that hearing has been associated with the claims file. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. This Virtual VA claims file has been reviewed. Currently the information therein is largely duplicative of information in the paper file. For reasons discussed below, this 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 Veteran contends that he is entitled to service connection for a headache disorder that he believes is related to trauma incurred while serving on active duty. In statements and testimony submitted during this appeal, the Veteran describes that he incurred an injury to his head when a hydraulic plane engine exploded just inches from him. Although he does not recall whether he lost consciousness or hit his head on anything during this incident, he asserts that he has experienced chronic headaches ever since. The Veteran underwent VA examination in July 2012 for the specific purpose of obtaining additional medical information regarding the likelihood that any current headache disorder is related to military service, to include any trauma due to the aforementioned explosion incident. Review of the examination report reveals that the examiner noted only one current and/or historical diagnosed headache disorder - temporal arteritis. The examiner opined that this disability was not likely caused by the Veteran's military service as there was no evidence that his claimed in-service headaches represented temporal arteritis. Pertinent to the current appeal, the July 2012 VA examination only addresses headaches associated with the Veteran's temporal arteritis; it does not discuss "other" headaches documented in the post-service medical evidence. Specifically, VA treatment reports show that the Veteran has, at times, reported chronic, mild headaches that are of a different quality and nature than his temporal arteritis-related headaches. An April 2002 rheumatology note indicates that the Veteran reported these headaches have been present "a long time." More recently, he indicated chronic headaches and neck pain for at least thirty years. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, in light of the foregoing, an additional examination and opinion is necessary to fulfill VA's duty to assist. Id. Prior to the examination, to ensure that all due process requirements are met and that the record is complete, the RO/AMC should obtain any outstanding, relevant records pertaining to the claim on appeal. This includes VA treatment reports from the VA Medical Center (VAMC) in Los Angeles, as well as the VA Community Based Outpatient Clinics (CBOCs) in Santa Barbara and Santa Maria. The Board notes that the claims file already contains records from these facilities dated through April 2010. Review of such records, however, reveals that they are incomplete. For example, the Veteran's VA Problem List shows that "headaches" was added on September 14, 2007, but there is no corresponding treatment report of record. Under these circumstances, the Board finds that the RO/AMC should obtain any VA treatment reports dated since September 1, 2007 from these facilities. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Finally, the RO/AMC should provide the Veteran another opportunity to present information and/or evidence pertinent to this appeal. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran to request the names and addresses of all medical care providers who have treated him for headache disorders, especially prior to 1999. After the Veteran has signed the appropriate releases, those records should be obtained and those records not already associated with the claims file should be associated with the claims file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit records for VA review. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. 2. Request all outstanding, relevant treatment records from the Los Angeles VAMC, Santa Barbara CBOC, and Santa Maria CBOC since September 1, 2007. All records obtained should be associated with the claims file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit records for VA review. All attempts to procure records should be documented in the file. If the RO/AMC cannot locate such records, the RO/AMC must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After all records and/or responses received are associated with the claims file, the RO/AMC should schedule the Veteran for a VA examination for the purpose of obtaining an opinion regarding the etiology of his claimed headache disorder(s). All necessary tests should be conducted. Access to the claims file and Virtual VA must be made available to the examiner for review. The examiner must identify all diagnosed headache disorders, including any headache disorder(s) not associated with temporal arteritis. Then, with respect to each diagnosed disorder, the examiner is to opine whether it is at least as likely as not (50 percent probability or higher) that the disorder had its onset during the Veteran's active military service or is otherwise related to such service or events therein. In rendering this opinion, the examiner must consider and discuss the Veteran's assertions that he incurred an injury to his head when a hydraulic plane engine exploded just inches from him during service. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why the cause of any diagnosed headache disorder is unknowable. A complete rationale must accompany each opinion offered. 4. After the development requested has been completed, the RO should review the examination report(s) to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that each examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of his claim. 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 aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC is to readjudicate the issue on appeal. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the October 2012 supplemental statement of the case. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ MICHAEL D. LYON 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).