Citation Nr: 1315183 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 12-30 923A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a headache disability, to include as secondary to service-connected facet arthropathy of the lumbar spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In that decision, the RO denied entitlement to service connection for migraine headaches. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. 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 Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, a September 2012 VA examination report includes a diagnosis of migraine headaches. Thus, a current headache disability has been demonstrated. Service treatment records include numerous reports of treatment for headaches between April 1986 and June 1994. Such headaches were occasionally associated with sinus congestion, tenderness over the maxillary area, dizziness, and neck stiffness. Diagnoses of viral syndrome, a probable sinus infection, pharyngitis, upper respiratory infections, epistaxis, and gastroenteritis were provided. In November 1991 the Veteran was treated for frontal headaches and neck stiffness which had been present since his involvement in a motor vehicle accident. He was diagnosed as having a muscle strain, rule out a cervical problem. Also, he reported a history of frequent or severe headaches on a September 1994 report of medical history completed for purposes of separation from service. His separation examination was normal other than for pes planus and a right ankle problem. The Veteran contends that his current headache disability is either related to his headaches in service or, in the alternative, is related to his service-connected back disability. The physician who conducted the September 2012 VA examination opined that the Veteran's current headache disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. He reasoned that the Veteran had reportedly claimed that his headaches began after he was involved in a motor vehicle accident in service. However, he did not strike his head during the accident and there was no loss of consciousness. He described his headaches as being migraines, but they did not fit the symptoms and diagnosis of migraine headaches. He experienced multiple headaches during the day that lasted for 30 minutes to an hour and were located toward the back of his neck, along the sides of his head, and frontally. Such symptoms were not symptoms of migraine headaches. Also, the headaches were relieved with over-the-counter medications. In October 2012, a VA physician reviewed the Veteran's claims file and opined that his current headache disability was not proximately due to his service-connected facet arthropathy of the lumbar spine. She explained that a review of medical literature revealed that migraine headaches were not known to occur due to facet arthropathy of the lumbar spine. The September 2012 opinion is inadequate because the examiner only made reference to the headaches in service associated with the Veteran's motor vehicle accident and did not acknowledge or discuss the numerous other instances of treatment for headaches in service. Additionally, the majority of the rationale that was provided consisted only of a description of the Veteran's current headache symptoms and does not address why the Veteran's current headache disability is not related to service. The October 2012 opinion is also inadequate because it is limited to whether the Veteran's current headache disability was caused by his service-connected back disability. However, service connection may also be granted for a disability that is aggravated by a service-connected disability and no opinion has been provided as to any possible aggravation. 38 C.F.R. § 3.310 (2012). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In February 2004, the Veteran submitted a signed and completed "Authorization and Consent to Release Information" form (VA Form 21-4142) for records pertaining to treatment for headaches and a back disability from Dr. Johnson and Dr. Meyer, both located in New Orleans, Louisiana. When VA becomes aware of private treatment records it will specifically notify the Veteran of the records and provide a release to obtain the records. If the Veteran does not provide the release, VA has undertaken to request that the Veteran obtain the records. 38 C.F.R. § 3.159(e)(2). Although some records from the above listed physicians have been submitted by the Veteran, no further steps have been taken to obtain all available relevant private treatment records. Thus, a remand is also necessary to attempt to obtain any additional relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete authorizations for VA to obtain all records of his treatment for headache and back disabilities from Dr. Johnson and Dr. Meyer. All efforts to obtain these records must be documented in the claims file. If the Veteran fails to furnish any necessary releases for private treatment records, he shall be advised to obtain the records and submit them to VA. If any records are unavailable, the Veteran shall be notified of the identity of the putative records that are unavailable, the efforts VA has undertaken to obtain such records, and any additional action that may be taken concerning his claim. All such notification must be documented in the claims file. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the etiology of his current headache disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. For each current headache disability identified (i.e. any headache disability diagnosed since February 2012), the examiner shall answer all of the following questions: (a) Is it at least as likely as not (50 percent probability or more) that the current headache disability had its onset in service, is related to the Veteran's headaches in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not (50 percent probability or more) that the current headache disability was caused (in whole or in part) by the Veteran's service-connected facet arthropathy of the lumbar spine? (c) Is it at least as likely as not (50 percent probability or more) that the current headache disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the Veteran's service-connected facet arthropathy of the lumbar spine? If any current headache disability was aggravated by the service-connected facet arthropathy of the lumbar spine, the examiner shall also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his symptoms over time. In formulating the above opinions, the examiner shall specifically acknowledge and comment on all headache disabilities diagnosed since February 2012, all instances of treatment for headaches in the Veteran's service treatment records, and his report of frequent or severe headaches on the March 1994 report of medical history for purposes of separation from service. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms, the examiner must provide a reason for doing so. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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). _________________________________________________ J. A. MARKEY 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).