Citation Nr: 1315571 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-14 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a psychiatric disorder due to head trauma. 2. Entitlement to service connection for headaches due to head trauma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The claims were remanded by the Board for additional development in January 2009, January 2011, and September 2012. The actions requested as they pertain to the claim for a psychiatric disorder have been completed. As discussed in greater detail below, the actions requested in regards to the claim for headaches have not. The issue of service connection for headaches due to head trauma 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 A psychiatric disorder, to include depressive disorder, was not incurred in or aggravated by service, to include the in-service head trauma. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board acknowledges that the notice sent to the Veteran prior to the initial adjudication of his claim for service connection for a psychiatric disorder was deficient. See letters dated July 2003 and January 2004. Additional, adequate notice, however, was provided in a January 2011 letter and the claim was readjudicated in a July 2012 supplemental statement of the case (SSOC). Accordingly, the duty to notify has been fulfilled. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The duty to assist was also met in this case. The service treatment and personnel records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file and VA attempted to obtain records from the Social Security Administration (SSA), but was informed they had been destroyed. In addition, several VA examinations with respect to the issue on appeal have been obtained throughout the course of the appeal. 38 C.F.R. § 3.159(c) (4). The Board's September 2012 remand instructions have been substantially complied with as the requested VA examination was obtained in October 2012. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). The Board acknowledges that the VA examiner did not fully comply with the Board's remand since the examiner did not assume, as instructed, that the Veteran' psychiatric disorder did not preexist his August 1974 entrance into active duty. The Board also acknowledges that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In this case, however, there is no prejudice in proceeding with adjudication because despite the Board's September 2012 finding that the presumption of soundness applies in this case, it now has determined that it does not, as will be discussed in greater detail below. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012). In addition, the Board finds that the VA opinion obtained in October 2012 is adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. It considers all of the pertinent evidence of record and the statements of the appellant, and the examiner provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran contends that he has a psychiatric disorder as a result of head trauma he suffered during service. An October 1976 service treatment record reflected that the Veteran fell from the flight deck onto the starboard catwalk, striking the left occipital region of his head. The Veteran was unconscious ten to fifteen minutes and upon arrival to the emergency room was disoriented as to time and place. Physical examination revealed pupils equal and reactive. However the right pupil seemed to fluctuate constantly and both ears had questionable drainage with cerumen in both ears. The fundi were within normal limits but there was a one inch laceration on the left orbit area. The impression was rule out concussion. Following further examination, the Veteran had a normal neurological examination and fundi. The impression was concussion. There were no additional service treatment records pertaining to this incident. In its September 2012 remand, the Board determined that the presumption of soundness attached to the Veteran's entry into active duty since there was no medical evidence of a psychiatric diagnosis at the time of the Veteran's November 1973 report of medical examination. The Board also noted that at the time of entry, the Veteran indicated that he never suffered from frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. See November 1973 report of medical history. After the issuance of the Board's September 2012 remand, the Court of Appeals for Veterans Claims (Court) decided the case of Gilbert v. Shinseki, 26 Vet. App. 48 (2012), in which it determined that application of the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. As noted above, in its September 2012 remand, the Board only considered whether any psychiatric disorder was noted at entrance in determining whether the presumption of soundness applied. On reconsideration under the holding in Gilbert, to include whether there were any manifestations of a psychiatric disorder during service, the Board now concludes that the presumption of soundness does not apply. This determination is based upon a review of the service treatment records, which are devoid of reference to complaint of, or treatment for, any psychiatric problems, to include depression, and the fact that clinical evaluation of the Veteran's psychiatric and neurological functioning was normal at the time of an August 1977 discharge examination. It is also based on review of the Veteran's service personnel records, which contain evidence of a series of nonjudical punishments received by the Veteran during service, but which the Board does not find to be manifestations of a psychiatric disorder during active service. The preponderance of the evidence does not support the claim for service connection for a psychiatric disorder. The Board acknowledges that the probative evidence indicates that the Veteran has a current disability, diagnosed during the October 2012 VA examination as depressive disorder, not otherwise specified, and that Axis I diagnoses related to alcohol and drug abuse have also been made during the course of his appeal. The probative evidence does not indicate, however, that any psychiatric disorder began during, was aggravated by, or is causally related to military service. Initially, the Board finds the psychiatric disability did not begin during service. As noted above, the service treatment records are devoid of reference to complaint of, or treatment for, any psychiatric problems, to include depression, and clinical evaluation of the Veteran's psychiatric functioning was normal at the time of his August 1977 discharge examination. Also as noted above, the nonjudical punishments reflected in the Veteran's service personnel records are not considered manifestations of an in-service psychiatric disorder. The Board acknowledges the Veteran's assertion that his current psychiatric disorder is the result of an in-service head injury. While service treatment records do document head trauma in October 1976, to the extent that the Veteran is asserting that his psychiatric symptoms began during service as a result of his head injury, which he is competent to report, the Board finds any such history is not credible, namely because service treatment records do not reflect any complaint of, or treatment for, psychiatric problems following the head injury, and, therefore, do not corroborate this contention. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Board finds any such history is not probative evidence of in-service onset of a psychiatric disability. For all these reasons, the Board finds a psychiatric disability did not begin during service. The Veteran has undergone several VA examinations, namely in March 1998, November 2003, July 2010, and October 2012. He has also submitted private medical evidence in support of his claim, to include a June 2005 psychosocial evaluation with opinion conducted by G.V.K., PhD, and J.A.M. During the March 1998 VA examination, Axis I diagnoses of alcohol dependence, in remission; polysubstance abuse, in remission; and major depression were made. No opinion as to the etiology of any of these disorders was provided. At this juncture, the Board notes that it previously determined that the November 2003 VA opinion was inadequate because no rationale in support of the opinion was provided and that the June 2005 private opinion and July 2010 VA examinations were inadequate as they were based on inaccurate factual premises. See January 2009 and February 2012 Board remands. The June 2005 private opinion was inaccurate in the sense that it was based on the Veteran's report that he had no behavioral or emotional problems prior to his injury and his description of excellent military service prior to the head injury, which the Board determined were contradicted by other evidence of record, including the nonjudical punishments before and after the head injury as well as the Veteran's own admissions during a December 1997 VA neuropsychological examination that he got into a lot of trouble as a child including running away from home, setting fire to a field, and breaking a window in class, and his report of emotional, physical, and sexual abuse by his parents. See January 2009 Board remand. The July 2010 VA examination was determined to be inadequate in light of the Board's September 2012 determination that there was no preexisting condition prior to the Veteran's entry into active duty. See September 2012 Board remand. The Board's prior determination as to the adequacy of the November 2003 VA examination and June 2005 private medical opinion remains intact. Given the Court's holding in Gilbert v. Shinseki, however, which, as discussed above, has resulted in the Board's current determination that the presumption of soundness does not apply in the instant case, the Board's prior determination that the July 2010 VA examination was inadequate as based on an inaccurate factual premise no longer holds. As such, the Board will consider the July 2010 VA examination report and opinion provided, as well as the October 2012 Disability Benefits Questionnaire (DBQ), in determining this claim. The Veteran's claims folder was available for review at the time of the July 2010 VA mental disorders examination. The examiner noted that the November 2003 VA examiner had included a history, which indicated that the Veteran had a long history of rejection by his mother, who was divorced from his father and whom he used to tell people was dead when she was actually still living, as well as a history of rather severe abuse at the hands of his father and step mother. The examiner also noted the in-service head injury and post-service treatment with Axis I diagnoses of cognitive disorder, not otherwise specified, post-concussive syndrome, alcohol dependence in partial remission, and polysubstance abuse, with determinations that his psychiatric condition was likely the result of his childhood abuse. It was noted that no cognitive defects were found during a 2005 neuropsychological evaluation. Following a detailed examination, an Axis I diagnosis of depression disorder, not otherwise specified, in partial remission, was made; an Axis II diagnosis of personality disorder, not otherwise specified, with cluster B features was made. The July 2010 VA examiner noted that the Veteran reported that he had had issues with depression since a head injury and that throughout the interview, the Veteran made confusing statements concerning his history, to include that he had suicidal thoughts in childhood; that many of his mental health problems are the result of childhood issues; that prior to his head injury he had top jobs in the military, always did well in school, and was successful, and that since the head injury he had had difficulty with chemical dependency and mental health issues; and that he was on the dean's list in college and would like to be able to go to school so he can get a good job and support himself, while also indicating that he had cognitive problems as a result of the head injury. The examiner indicated that the Veteran did not appear to be having significant cognitive issues at that time, and that his depression did not appear to be the result of cognitive impairment due to head injury because he did not appear to have cognitive deficits. The examiner was of the opinion that the Veteran's reported depression appeared to be mild and related to his life circumstances (his living arrangement, lack of ability to afford college, unemployment, discord with neighbor, isolation) and that his long history of depression appeared to be related to childhood maltreatment, chemical dependency, and the problem behaviors and situations he had experienced due to his personality disorder issues. It was less likely as not that the Veteran's depression was related to the head injury he had in service. During the October 2012 mental disorders DBQ, the examiner noted review of the claims folder and specifically noted extensive evidence used in providing the opinion, to include the evidence obtained from VA treatment records, from a May 2005 neuropsychological evaluation, from the March 1998, November 2003, and July 2010 VA mental disorders examination reports, from a July 2010 VA neurological disorders examination, from a December 1997 neuropsychiatric assessment, and from the June 2005 private psychosocial evaluation. Those findings will not be reported in detail, but the Board notes that it has reviewed the evidence relied on by the October 2012 VA examiner. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). The October 2012 VA examiner conducted a detailed mental status examination and provided Axis I diagnoses of delusional disorder; depressive disorder, not otherwise specified; and alcohol abuse. An Axis II diagnosis of personality disorder, not otherwise specified, with paranoid, antisocial and borderline features, was also made. The examiner determined that the Veteran's delusional disorder was unrelated to his military service or head injury as it appeared to have manifested recently over the past few years and appears likely to be related to paranoid personality traits. The examiner determined that the Veteran's depressive disorder is less likely as not related to his active duty military service, including the in-service head injury, and indicated that records contained in the claims file provide clear evidence of the onset of depressive symptoms in childhood/adolescence. The October 2012 VA examiner noted that the Veteran appeared to have experienced a very chaotic and abusive upbringing, as noted in several reports, most notably a December 1997 neuropsychiatric assessment, which resulted in characterological problems manifested by shoplifting, fire-setting, and physical aggression. The examiner believed that the Veteran's depressive disorder was due to his extensive childhood abuse, which also resulted in a personality disorder that accounts for much of his social and occupational maladjustment in adulthood. The examiner also noted that a May 2005 neuropsychological evaluation yielded results indicating intact cognitive functioning, thus providing further evidence that the Veteran was not experiencing a mental disorder related to his in-service head injury. The October 2012 VA examiner reported puzzlement over the marked discrepancy between the history provided in the June 2005 psychosocial evaluation conducted by G.V.K., PhD, and J.A.M., versus that of previous evaluations. It was the October 2012 VA examiner's opinion that the June 2005 report was dubious. The Board has already determined that the report is inadequate as based on an inaccurate factual premise. At this juncture, the Board notes that the October 2012 VA examiner determined that the Veteran's Axis I diagnosis of delusional disorder was unrelated to his military service or head injury as it appeared to have manifested recently over the past few years and appears likely to be related to paranoid personality traits. The examiner also indicated that the Veteran's extensive childhood abuse resulted in a personality disorder, which in turn accounted for much of his social and occupational maladjustment in adulthood. Personality disorders are not diseases or injuries within the meaning of applicable legislation. See 38 C.F.R. § 3.303(c). In summary, the July 2010 VA examiner determined that the Veteran's long history of depression was due in part to childhood maltreatment, and the October 2012 VA examiner determined that the Veteran's depressive disorder is less likely as not related to his active duty military service, including the in-service head injury, because there was clear evidence of the onset of depressive symptoms in childhood/adolescence. Both these opinions are afforded high probative value as they are supported by a detailed rationale based on extensive review of the Veteran's claims folder. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). Given these probative opinions, which are the only adequate opinions of record, the Board finds that the Veteran's depressive disorder pre-existed his military service. Since the Board has determined that the Veteran's depressive disorder pre-existed his military service, it must now determine whether this pre-existing condition was aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). It finds that it was not. As noted above, service treatment records are devoid of reference to complaint of, or treatment for, any psychiatric problems, which negates a finding that the pre-existing psychiatric disorder, diagnosed most recently as depressive disorder, increased in severity during service. In addition, while the Veteran did have several non-judicial punishments during service, the Board has already determined that they do not equate to manifestations of a psychiatric disorder during service. In addition, the Board notes that these punishments were doled out both before and after the October 1976 head injury, which does not support a finding that the Veteran's pre-existing psychiatric disorder was aggravated by the head injury. The Board acknowledges the December 1997 VA neuropsychological report that determined the Veteran was of average intellectual functioning, which appeared to reflect his premorbid impairment; that the impairment was likely to be chronic, reflecting an old head injury, and was fairly consistently reflecting greater left cerebral hemisphere impairment; that the defects were consistent with the documented head injury in the military, which appeared to be fairly mild in nature; and that in addition to the subtle motor, sensory, and language deficits associated with the injury, the Veteran appeared to have slightly greater executive function deficits, consistent with frontal lobe injury. It was also noted that the Veteran's conduct problems could not be entirely attributed to his head injury, as there was ample evidence of conduct problems pre-military as well as in the military prior to the head injury, but that the mild brain injury might, to a mild extent, exacerbate these pre-existing tendencies. Medical opinions that are speculative, general or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102 (2012); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Hogan v. Peake, 544 F.3d 1295, 1298 (Fed. Cir. 2008) (the Board may discount the value of competent medical evidence based on factors including the lack of a definitive statement as to etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). As such, the determination that the in-service head trauma might have exacerbated the Veteran's pre-existing disorder is not afforded any probative value. In addition, later evaluations determined that the Veteran had normal cognition. See May 2005 neuropsychological evaluation; July 2010 VA mental disorders examination; October 2012 mental disorders DBQ. The probative evidence does not suggest a link between a psychiatric disability and military service, but rather that the Veteran's current psychiatric disorder pre-existed service. The Board acknowledges that the Veteran believes his psychiatric disability is related to service, specifically the documented head trauma. The Veteran has not shown that he is competent to render such a determination, however, as there is no evidence he is qualified through education, training, or experience to offer a medical opinion on a matter of complexity that requires specialized knowledge. See 38 C.F.R. § 3.159(a). In summary, the preponderance of the evidence shows that the Veteran does not have a psychiatric disorder that is related to his military service. Accordingly, the Board concludes that a psychiatric disorder pre-existed service and was not incurred in or aggravated by service. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Accordingly, the appeal is denied. ORDER Service connection for a psychiatric disorder is denied. REMAND Additional development is needed before the Board can adjudicate the claim for service connection for headaches due to head trauma. This claim was remanded in January 2011 in part to make efforts to obtain outstanding treatment records from the Togus VA Medical Center, and in September 2012 in order to obtain another VA examination. The Board specifically instructed that the VA examiner must consider the Veteran's statements in making a determination as to whether any diagnosed neurological disorder is related to service. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Records from the Togus VA Medical Center dated prior to May 8, 1984, which is the earliest record of treatment obtained from this facility, have been requested on several occasions. More specifically, VA has requested records dated from 1977, and has specifically requested this VA facility to recall any retired records and to indicate whether the requested records had been destroyed or otherwise unavailable. The Togus VAMC has supplied records on several occasions, but has never provided records prior to May 8, 1984 and has never provided a negative response as to the existence of records dated prior to May 8, 1984. This must be rectified on remand, as the Veteran has consistently reported treatment for headaches from the Togus VA Medical Center dating back to at least 1978. Whether or not these records are obtained is immaterial at this point, as the Veteran is competent to report that he has had headaches since his in-service head injury, and that he sought post-discharge treatment dating back to at least 1978. It does not appear, however, that the VA examiner who conducted an October 2012 headaches DBQ considered these assertions, as instructed by the Board. This, too, must be rectified on remand. As the claim is being remanded for the foregoing reasons, additional VA treatment records should also be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Request VA records from the Togus VA Medical Center dated from 1977 to May 8, 1984. If any of these records are in a retired or archived status, efforts should be made to acquire the records. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 2. Obtain the Veteran's treatment records from the St. Cloud VA Medical Center, dated since March 2011, and from the Minneapolis VA Medical Center, dated since March 2012. 3. Return the claims file and a copy of this remand to the VA examiner who conducted the October 2012 headaches DBQ. The examiner is asked to provide an addendum opinion as to the probable etiology of any neurological disorder found, to specifically include the migraine cephalalgia diagnosed in the December 2008 private physician's correspondence. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and any relevant records in the Virtual VA system must be made available to and reviewed by the examiner in conjunction with the examination. Following a review of the service and post-service medical records, and with consideration of the Veteran's competent statements that he has had headaches since his in-service head injury, and that he sought post-discharge treatment dating back to at least 1978, the examiner must state whether any diagnosed neurological disorder, to include the migraine cephalalgia diagnosed in 2008, is related to the Veteran's active duty service, to include the October 1976 head injury. The examiner must also state whether any diagnosed neurological disorder, to include the migraine cephalalgia diagnosed in 2008, is due to or aggravated by the Veteran's service-connected scar of the left brow with left brow drooping. The Board notes that even if VA records from the Togus VA Medical Center going back to 1978, when the Veteran alleges he obtained post-discharge treatment for headaches, are not obtained, the examiner should presume he did have symptoms, even if not treatment, in rendering the requested opinion. If the October 2012 VA examiner is not available, or if the requested opinion cannot be given without further examination of the Veteran, a new VA examination should be scheduled and the requested opinion provided. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claim. If the benefit sought on appeal is not granted, issue an updated supplemental statement of the case (SSOC). The Veteran and his representative should also be given an appropriate amount of time to respond to it. 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 or by the Court 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs