Citation Nr: 1317613 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 11-11 766A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to service connection for migraine headaches as secondary to the service-connected tinnitus. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from January 1956 to January 1960. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the RO that denied service connection for migraine headaches on a direct and secondary basis. The Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge in December 2011. A transcript of the hearing is associated with the Veteran's claims folder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 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 Veterans Claims Assistance Act of 2000 (VCAA) specifically provides that the duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The Veteran was afforded a VA examination in May 2010 in order to determine the nature and etiology of the migraine headaches and whether such disorder was due to or caused by the service-connected tinnitus. The examiner opined that there was no causal relationship between the migraine headaches and the tinnitus. The VA examiner did not render a medical opinion as to whether the service-connected tinnitus aggravated or worsened the migraine headaches. The Veteran has reported that he had headaches since the tinnitus had worsened. See the March 2010 statement and his testimony before the Board in December 2011. The Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310, Disabilities that are proximately due to, or aggravated by, service-connected disease or injury, provides that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310. The Board finds that the RO should ask the examiner who conducted the May 2010 VA examination or a suitable replacement to prepare an addendum and provide an opinion as to whether the migraine headaches have been aggravated by the service-connected tinnitus. The RO should appropriately contact the Veteran by letter and request that he provide sufficient information and, if necessary, authorization to enable the RO to obtain any pertinent VA or non-VA clinical records showing treatment of the claimed migraines headaches. The RO should make an attempt to obtain copies any outstanding records from any identified treatment source. (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.) Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and ask him to identify any source of VA or non-VA medical treatment rendered for the claimed migraine headaches, not previously obtained. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorizations, to enable VA to obtain any additional evidence. If the Veteran adequately identifies the health care providers and provides the completed authorizations, the RO should request legible copies of all pertinent clinical records that have not been previously obtained and should incorporate them into the claims file. The letter should invite the Veteran to submit any medical evidence or treatment records in support of the claim. 2. The RO then should ask the VA examiner who conducted the May 2010 VA neurological examination (or if he or she is no longer available, a suitable replacement) to prepare an addendum to the medical opinion that addresses whether it is at least as likely as not (50 percent probability or more) that the migraine headaches is aggravated by the service-connected tinnitus. If the examiner finds that the migraine headaches was aggravated by the service-connected tinnitus, the examiner should indicate the degree of disability due to the aggravation. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO should schedule the Veteran for such an examination. The VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should provide a rationale for all conclusions. If the VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, the examiner should indicate this in the report. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). _________________________________________________ K. J. ALIBRANDO 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).