Citation Nr: 1317974 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 07-33 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for migraine headaches, to include as secondary to service-connected dysthymic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from May 1955 to August 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Atlanta, Georgia, that denied service connection for a psychiatric disorder and a headache disorder. The issues were previously before the Board in April 2011 at which time the case was remanded for additional development. Thereafter, in an April 2012 rating decision the RO granted service connection for dysthymic disorder claimed as a mental disability and depression, and assigned an initial 70 percent disability rating effective September 21, 2005. As this is a full grant of the benefit sought on appeal; the issue of service connection for an acquired psychiatric disorder is no longer before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 After carefully considering this matter, and for reasons expressed immediately below, this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of a previous remand. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the 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. Id. at 486. By letters dated in October 2005 and April 2011 the Veteran was notified of the evidence that was necessary to substantiate his claim for direct service connection. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. As noted in the introduction, the RO granted service connection for a dysthymic disorder in an April 2012 rating decision. Subsequently, in a January 2013 Appellant's Post-Remand Brief, the Veteran's representative raised the issue of entitlement to service connection for migraine headaches as secondary to the now service-connected dysthymic disorder. Secondary service connection was not addressed by the VA examination in August 2011 as it had not previously been raised. The Veteran has also not been given proper notice regarding service connection as secondary to a service-connected disability. The current VCAA letters of record did not inform the Veteran of the evidence necessary to substantiate his claim for secondary service connection for a migraine headaches disorder, on the premise that this disorder is proximately due to or is chronically aggravated by his service-connected dysthymic disorder. 38 C.F.R. § 3.310 (2012). VA must fully investigate the possible nexus between any disorder sought to be service connected with a presently service-connected disability when such competent evidence is presented. See e.g., Robinson v. Mansfield, 21 Vet. App. 545 (2008). Therefore, a remand is required for the RO/AMC to issue another VCAA letter that addresses secondary service connection for a migraine headaches disorder, to include as secondary to the service-connected dysthymic disorder. Service connection may be established on a secondary basis for a disability that is 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. 38 C.F.R. § 3.310(a) (2011); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). In light of the foregoing, the Veteran must also be scheduled for a VA examination so as to determine the etiology of any current migraine headaches disorder, on the basis of in-service incurrence, as well as on the basis of being secondary to the service-connected dysthymic disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4). Accordingly, the case is REMANDED for the following action: (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.) 1. The RO/AMC shall send the Veteran a VCAA letter notifying him and his representative of the evidence necessary to substantiate the claim for secondary service connection for a migraine headache disorder, on the premise that it is proximately due to, or chronically aggravated by, his service-connected acquired psychiatric disorder. See 38 C.F.R. § 3.310 (2012). This letter must (1) inform the Veteran of the information and evidence that is necessary to substantiate this claim on a secondary basis; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. See 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). 2. The RO/AMC shall schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the asserted migraine headaches disorder. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims file has been reviewed. All appropriate evaluations, studies, and testing deemed necessary by the examiner must be conducted at this time, and findings included in the examination report. The examiner is directed to answer all of the following questions as definitively as possible: (a) Is it at least as likely as not that any current headache disorder found on examination, including but not limited to migraine headaches, had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service (to include any documented in-service treatment for parasitic infections). (b) Is it at least as likely as not that any current headache disorder found on examination, including but not limited to migraine headaches, was caused (in whole or in part) by a service-connected disability, to specifically include dysthymic disorder, bilateral hearing loss, and tinnitus? (c) Is it at least as likely as not that any current headache disorder found on examination, including but not limited to migraine headaches, is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to specifically include dysthymic disorder, bilateral hearing loss, and tinnitus? If any current headache disorder found on examination, including but not limited to migraine headaches, is aggravated by a service-connected disability, the examiner should 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 observable symptoms over time. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for headaches in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so must be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. The examiner must provide a complete rationale for each opinion given. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).