Citation Nr: 1314964 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 08-24 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a headache disability. 2. Entitlement to service connection for sinusitis. 3. Entitlement to service connection for allergic rhinitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. 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 As reflected in a May 2006 statement and his August 2008 substantive appeal, the Veteran asserts that he has had sinus problems and headaches since his service in the Gulf War, where he was exposed to oil well smoke and fumes, and that, although he had allergies prior to service, such allergies were aggravated in service. Regarding the Veteran's claim for a headache disability, the record reflects that the Veteran first complained of head pain in March 2007, which is almost 15 years after his period of service. Since that time, the Veteran's headache problems have been variously assessed. In August 2007, the Veteran reported headaches due to his nasal congestion and sinus problems. In March 2007, a VA medical provider diagnosed headaches, and stated that such headaches were as likely as not related to anxiety, and that the Veteran did not meet the criteria for a migraine headache diagnosis. In July 2012, the Veteran reported headaches, and a VA provider stated that the Veteran's headache was compatible with migraine headache. Also, in a September 2010 rating decision, the Veteran was granted service connection for an anxiety disorder. Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Under these circumstances, the Veteran should be provided an examination and opinion addressing the nature of any current headache disability, and whether such disability is related to either his period of service or to his service-connected anxiety disorder. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claimed sinusitis and allergic rhinitis, service treatment records reflect that, at the time of his August 1990 exanimation for entry into service, the Veteran was noted to have had a normal clinical evaluation of the head, face, sinuses, nose and throat, and no allergic rhinitis or sinus problems were noted. At that time, the Veteran reported having a history of hay fever and seasonal allergies due to pollen. While service treatment records reflect no diagnoses of allergic rhinitis or sinusitis, in January 1992, the Veteran was treated for burning, itchy eyes, and the assessment was allergies. In June 1992, he was treated for multiple complaints including sore throat and body aches, and was assessed as having a viral syndrome. In September 1992, he was seen for sore throat, chest pain, and cough, and was assessed with upper respiratory infection. At the time of his examination for separation from service in August 1992, the Veteran was again noted to have had a normal clinical evaluation of the nose, sinuses, mouth and throat, and no allergic rhinitis or sinus problems were noted. At the time, the Veteran again reported a history of seasonal hay fever, for which he took over the counter medications. Following service, private treatment records reflect that in February 1994 the Veteran was treated for acute pharyngitis and bronchitis, in April 1998 he received treatment for acute pharyngitis and allergic rhinitis, and in March 1999 he received treatment for diagnoses of sinusitis and allergic rhinitis. VA and private treatment records reflect further treatment for sinus problems and allergic rhinitis. A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. Therefore, the Veteran should also be provided an examination and opinion addressing whether sinusitis and/or allergic rhinitis was caused or aggravated by the Veteran's service. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon, 20 Vet. App. 79. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any headache disability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine the nature of any current headache disability, to include whether the Veteran has a separate headache migraine headache disorder, or if headaches are a manifestation of another disability such as anxiety disorder. For any such diagnosed headache disability, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or more) that any such disability is either related to service or is caused or aggravated (i.e. worsened in severity beyond its natural progression) by the Veteran's service-connected anxiety disorder. A complete rationale for all opinions must be provided. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any sinusitis and/or allergic rhinitis. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether the Veteran has or has had a sinusitis and/or allergic rhinitis disability. If any such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or more) that any such disability is related to service, to specifically include any in-service disease. If any such disability is found to be related to in-service disease, the examiner should determine whether such disease 1) clearly and unmistakably preexisted service and 2) clearly and unmistakably was not aggravated (i.e. permanently worsened in severity beyond its natural progression) by, or during, service. A complete rationale for all opinions must be provided 3. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). 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). _________________________________________________ Mark W. Greenstreet 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).