Citation Nr: 1315488	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  06-27 018	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a chronic headache disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARINGS ON APPEAL

Appellant and a friend



ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty from August 1983 to April 1987 and from December 1990 to July 1991.  He also had additional verified service in the reserves, in the interim and afterward, on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This matter comes to the Board of Veterans' Appeals (Board) from March 2005 and July 2005 rating decisions of the RO in Waco, Texas.

The Veteran testified at a hearing before the RO in April 2008 and at a hearing before the Board in March 2009.  Additional evidence was received from the Veteran in March 2013.  As the Veteran has waived initial RO review of this evidence, the Board will consider it.  38 C.F.R. § 20.1304.

The Board remanded the case for further development in June 2010.  The requested development having been completed, in part, the issues are once again before the Board.  As will be further explained below development for the issue of entitlement to service connection for chronic headaches was incomplete and therefore the issue will be remanded again.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to service connection for headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDING OF FACT

It is as least as likely as not that the Veteran developed an acquired psychiatric disorder, to include depression and PTSD during active military service, based on probative medical and other competent evidence of record establishing this cause-and-effect correlation.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, an acquired psychiatric disorder, to include depression and PTSD, was incurred during active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

In this decision, the Board grants service connection for an acquired psychiatric disorder, to include depression and PTSD.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.


Analysis

The Veteran contends that his current acquired psychiatric disorder, to include depression and PTSD, is related to his service, and as such he is entitled to service connection.

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record (both medical and lay) and the evaluation of its competency and credibility to in turn determine its ultimate probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  All reasonable doubt material to this determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Under the law, active military service includes (1) active duty (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.  38 C.F.R. § 3.6(a) (2012).  Service connection is available for injuries and diseases incurred during active duty or ACDUTRA, but (except for the exceptions listed) only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). 

ACDUTRA includes full-time duty performed for training purposes by members of the Reserves.  38 C.F.R. § 3.6(c) (2012).  INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty).  38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2012).  Annual training is an example of active duty for training, while weekend drills are inactive duty training. 

To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d)  (2012); Harris v. West, 13 Vet. App. 509 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995).  Without the status as a veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to veterans.  For example, presumptive periods do not apply to ACDUTRA or INACDUTRA.  See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991).  The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). 

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases.").  As depression and PTSD are not listed as chronic diseases under § 3.309(a), the Court finds as a matter of law that continuity of symptomatology may not serve in lieu of medical nexus.  Psychoses are listed as chronic diseases in § 3.309(a).  According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.

Personality disorders, on the other hand, are considered developmental defects by VA regulation and as such are not diseases or injuries within the meaning of applicable legislation for VA compensation purposes and, hence, generally not subject to service connection.  38 C.F.R. §§ 3.303(c), 4.9.  However, disability resulting from a mental disorder superimposed upon a personality disorder may be service-connected.  38 C.F.R. § 4.127.

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The Veteran served on active duty from August 1983 to April 1987 and from December 1990 to July 1991, with additional reserve service.  This case was previously remanded in part to verify the Veteran's periods of service.

The appellant in this case is a "Veteran" based on his active duty service in the Air Force from August 1983 to April 1987 and from December 1990 to July 1991.  Therefore, he is entitled to "Veteran" status and the full benefit of VA resources for any compensation claim and consequent disability based on those periods of service.  But to the extent his claim, instead, is predicated on his additional service in the reserves, both in the interim and since, he must establish that he also qualifies as a "Veteran" for this additional service before any compensation may be awarded.  Thus, with respect to his reserve service after his call to active duty for Operation Desert Shield/Desert Storm, service connection only may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or for disability resulting from an injury (but not disease) incurred or aggravated while performing INACDUTRA. 

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128, 142 (1997).

If the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2).  See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). 

If a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  38 C.F.R. § 3.304(f)(3) (2012). 

If, on the other hand, there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is unrelated to that combat, then there generally must be independent evidence corroborating the Veteran's statement as to the occurrence of the claimed stressor.  Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). 

Additionally the Board notes that if the Veteran has other acquired psychiatric diagnoses, then a determination must be made as to whether any of those diagnoses are the result of the Veteran's active duty service.  The Board notes that the Veteran's original claim was for entitlement to service connection for depression, stress, and PTSD; however, in Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held, among other things, that separate theories in support of a claim for benefits for a particular disability did not equate to separate claims for benefits for that disability.  The Board must consider all the psychological diagnoses when adjudicating the claim for an acquired psychiatric disorder on its underlying merits.  See Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009) (indicating the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

Service connection is generally warranted only if there is competent evidence of a causal relationship between any present disability and service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d).  The Board acknowledges that lay evidence may be sufficient to establish a causal relationship between a current disability and service.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Specifically, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Additionally, lay persons can provide an eye-witness account of a Veteran's visible symptoms.  See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease).  In weighing lay evidence, the Board must render a finding with regard to both competency and credibility.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet.App. 362, 367 (2001).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

Service treatment records reflect that during active service in October 1985, the Veteran was referred for a psychiatric evaluation, but a psychiatric disorder was not diagnosed.  Records on file reflect that the Veteran had subsequent reserve service at Air Force Bases, and also worked as a civilian during the week at the same base, performing essentially the same duties.  In March 1997 he was diagnosed with adjustment disorder with mixed anxiety and depressed mood, with schizoid and paranoid personality features.  The March 1997 psychological evaluation was in response to an incident that occurred while the Veteran was working at Kelly Air Force Base in San Antonio, Texas.  The Veteran contends he experienced multiple incidents of overt racism while working at Kelly Air Force Base.  The Veteran reportedly felt threatened and reported the incidences to his supervisors and the military police.  The incidents caused the Veteran to become angry and afraid for the safety of his family.  He was transferred to another Air Force Base as a result of the problems.  

An undated partial record reflects that the Veteran was a civilian jet engine mechanic at Kelly Air Force Base (AFB) since 1991, and reported overt acts of racism beginning in late 1995, with another event on September 16, 1996, in which he and another coworker saw a government vehicle drive past with passengers wearing pillowcases over their heads, which they felt represented the Ku Klux Klan.  This incident was reported to the security police.  

Testimony was obtained at an April 2008 RO hearing from the Veteran and this coworker, and both the Veteran and the coworker testified as to the occurrence of this event.  The coworker confirmed that other overt acts of racism occurred both to him and to the Veteran at Kelly Air Force Base while they were working together.

A September 1997 psychiatric evaluation by Dr. A. reflects that the Veteran reported experiencing racist acts at Kelly AFB.  Dr. A. diagnosed adjustment disorder with anxious features, and pre-existing longstanding paranoid personality disturbance.  He found that the Veteran did not have PTSD.

A June 1998 service treatment record noted that the Veteran was "stressed out" and referenced a medical recommendation for duty disposition that has limitations of "medically cleared for full duty on any base except Kelly Air Force Base, at this time."  

The Veteran's difficulties with getting along with people continued while working in a civilian capacity with the Air Force.  After various incidents and complaints, a psychological evaluation was again requested and Dr. H.R.T. performed the evaluation.  Records from Dr. H.R.T. dated in June 2000 reflect that the Veteran was diagnosed with a single episode of severe, major depression.  Other June 2000 records from Dr. H.R.T. note a diagnosis of major depression as well as paranoid personality.  An August 2000 letter from Dr. H.R.T. noted that he had received an August 2000 psychological evaluation from another doctor, which reinforced the diagnosis of paranoid personality as well as diagnosed major depression.  The letter noted that the Veteran could not return to work because he lacked the emotional stability to do so.  

A September 2000 service medical evaluation reflects that the Veteran had racial harassment at Kelly and Carswell Air Force Bases, and that his medical record revealed several instances of visiting clinics and hospitals for depression-type episodes.  Currently, he was stressed, anxious, depressed, or even tearful.  The examiner noted that the above episodes and his course of treatment and response had been a long and ongoing process.  The examiner indicated that after reviewing the record in depth and chronological detail, that the problems that plagued the Veteran arguably could have some tangible basis, but it is also arguable and more likely that these events have a profound psychological basis and foundation.  He recommended that the Veteran be medically disqualified from continued military service due to psychoses.

In May 2001 the Veteran was medically disqualified for continued military duty by reason of severe depression and personality disorder which made the Veteran unsuitable for any military service.  

Post-service, the record indicated that the Veteran sought treatment in January 2006 at the Dallas VA medical center (VAMC) for, among other things, depression, anxiety, and sleep disturbance.  A February 2006 VA inpatient treatment record noted that the Veteran was depressed with suicidal ideation.  It was further noted that he was angry and mistrustful.  The Veteran was referred for outpatient treatment starting in March 2006.  The Veteran exhibited signs of major depression, paranoia, and delusional thinking.  In March 2006, he was diagnosed with recurrent major depressive disorder with psychotic features.  The record indicated that the Veteran was again admitted for inpatient treatment in February 2007.  The Veteran was subsequently diagnosed with PTSD in addition to major depression on Axis I.  

The Veteran was afforded a VA examination in December 2010.  The examiner noted the Veteran's extensive history of psychiatric treatment and noted that the frequency and severity of the Veteran's psychiatric symptoms that had continued since the mid 1990s and had increased since the Veteran's separation from service.  The Veteran treated his psychiatric symptoms with psychotropic drugs that were noted to be effective when taken correctly.  The Veteran reported he was unable to work due to his psychiatric disabilities including an inability to get along with co-workers.  The examiner diagnosed the Veteran on Axis I with recurrent severe major depressive disorder, without psychotic features and chronic PTSD.  

Upon review of the Veteran's medical history and a thorough examination the examiner stated that the overall picture was that the Veteran had made a satisfactory adjustment to military service for 15 years until he experienced incidents of overt racism during military service which led to hypervigilance, feelings of detachment, intense fear of being harmed, and a loss of interest in participating in activities.  The examiner further noted that the Veteran met the diagnostic criteria for PTSD that resulted from the traumatic incidents experienced in the military.  The Veteran also met the criteria for major depressive disorder which began during the Veteran's active duty service and is the result of his military experience.  The Board finds that this medical opinion is both competent and highly probative, as the examiner conducted a clinical evaluation, reviewed the Veteran's medical history and reported statements, and provided a thorough rationale for the medical opinion.

There is no competent medical or other evidence in the claims file, including his service treatment records (STRs) and service personnel records (SPRs) suggesting the Veteran incurred a chronic psychiatric disorder during the first period of active duty from August 1983 to April 1987.

The evidence of record reflects that after that period of active duty service, the Veteran worked at Kelly Air Force Base (AFB) both as a civilian and on INACDUTRA and ACDUTRA for several years, as well as active service in 1990 and 1991.  Despite repeated attempts both prior to and following the Board's remand, the Veteran's precise dates of ACDUTRA and INACDUTRA have never been verified, and it has been verified that he had periods of service during the relevant years.  The Veteran and his coworker both testified that they experienced multiple racist incidents while at Kelly AFB, and, upon review of all of the evidence of record, and bearing in mind the benefit-of-the-doubt rule, the Board finds that it is at least as likely as not that at least some of these incidents occurred during a period of service.  See 38 U.S.C.A. § 5107(b).

The Board acknowledges the July 2006 Formal Finding which noted the lack of information required to corroborate the Veteran's stressors.  However, this document was completed prior to the receipt of significant corroborating evidence.  The Board notes that the record, including service treatment records, indicated that the Veteran did report various overtly racist incidents which made him feel threatened and the December 2010 VA examiner determined those incidents were the cause of his currently diagnosed PTSD.  The Board also notes that verification of a stressor is not necessary in a claim for service connection for depression where there is competent and credible evidence of an event in service and competent and probative evidence of a nexus between that event and the current diagnosis.  Therefore, the Board finds that the claim for an acquired psychiatric disorder, to include depression and PTSD, should be granted.

The Board finds that the Veteran is competent and credible to report that he felt threatened by racist comments and actions during his active duty.  The Veteran is also competent to report that he has trouble sleeping and continues to have a heightened awareness with regard to racist threats.  The Board also notes that in a "buddy" statement received in August 2011, a fellow soldier (the same person who testified at the Veteran's Board hearing) who served with the Veteran at Kelly Air Force Base in Texas reported that they had both dealt with a hostile work environment including racial threats and slurs.  The Board finds that the Veteran's statements, as well as the statements of his friend are both competent and credible and they are consistent with contemporary claims during the Veteran's military service.  Additionally the Board notes that the December 2010 VA examiner stated that the Veteran's general fear of hostile military activity was sufficient to account for the Veteran's diagnosed PTSD and depression.

In consideration of all of the above, the Board finds that given the December 2010 VA examiner's positive nexus opinion, as well as the Veteran's lay testimony regarding his experience of multiple racist incidents during active duty service, the Veteran's current diagnoses of depression and PTSD are related to service.  

With consideration of all of the above, to include the current diagnoses, a positive nexus opinion from the December 2010 VA examiner, competent and credible lay evidence, and resolving all reasonable doubt in his favor, it is as likely as not that his acquired psychiatric disorder, to include depression and PTSD, while perhaps not due necessarily to his active military service, per se, nonetheless began at some point during his qualifying service.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology).

ORDER

Service connection for an acquired psychiatric disorder, to include depression and PTSD, is granted.  


REMAND

Unfortunately, the Board finds that additional development is warranted for the Veteran's claim for entitlement to service connection for a chronic headache disability.

The Board notes that the claim for entitlement to service connection for a chronic headache disability was previously remanded in June 2010 for further development to include affording the Veteran a VA examination.  A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268 (1998).  In this instance, while a VA examination was provided in August 2010, the Board notes that the examination, as will be further explained below, was inadequate and therefore another remand for a VA examination is necessary.

Service connection may be awarded for disability incurred or aggravated in service.  For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

The Veteran contends that he has frequent migraine headaches that are related to his active service.  Additionally, the Veteran and his representative noted at his March 2009 Travel Board hearing, that his headaches are also associated with his psychiatric disabilities.  As noted above, the Veteran was afforded a VA examination in August 2010 which noted that the Veteran had classic migraine headaches.  Specifically the examiner noted that the Veteran had headaches that were associated with bright lights, or photophobia; and that his headaches could also be brought on by psychological stress.  The examiner opined that the Veteran's current migraine headaches were less likely as not related to his active duty service.  The rationale provided by the examiner was that there was only one headache complaint noted during service, in 1984.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In this instance while the Veteran was afforded a VA examination, the Board finds that the August 2010 VA examination is inadequate because the VA examiner failed to note that Veteran had more than one complaint of a headache during his active service.  The Board notes that service treatment records reflect that the Veteran complained of headaches various times during his active duty service, including in October 1983, February 1984, February 1986, and later in a psychological examination in March 1997.  

Therefore, additional medical comment is needed to determine if his chronic headache disability is related to the multiple complaints of headaches during active duty service and/or secondarily related to his now service-connected acquired psychiatric disorder, to include depression and PTSD.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); and Velez v. West, 11 Vet. App. 148, 158 (1998).

Accordingly, the case is REMANDED for the following action:

1.  The claims file should be forwarded to an appropriate VA examiner for review.  After a review of the claims file, the examiner should be asked to determine the etiology of the Veteran's chronic headache disability.  

The examiner should provide an answer to the following questions:

a.  Whether the Veteran's chronic headache disability is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to his military service.

b. Whether the Veteran's chronic headache disability is at least as likely as not (i.e., probability of 50 percent), proximately due to, OR alternatively, aggravated (chronically worsened) by the Veteran's service-connected acquired psychiatric disorder, to include depression and PTSD.

The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review.  

2.  After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefit sought.  Unless the benefit sought on appeal is granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case, and afforded an opportunity to respond.

The appellant 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).



______________________________________________
C. L. WASSER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs