Citation Nr: 1322352 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 11-34 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a rating in excess of 30 percent rating for allergic rhinitis (to include the propriety of a reduction in the rating to 10 percent effective February 1, 2012, by rating decision during the pendency of the appeal). 2. Whether new and material evidence has been received to reopen a claim of service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1954 to December 1957. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Boise, Idaho Department of Veterans Affairs (VA) Regional Office (RO) that reopened and denied a claim of service connection for headaches and denied a rating in excess of 30 percent for allergic rhinitis. In the interim, a June 2011 rating decision proposed to reduce the rating for rhinitis from 30 to 0 percent, and a November 2011 rating decision implemented the reduction (however only to 10 percent), effective February 1, 2012. In May 2013, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In June 2013, the Veteran submitted a private opinion letter, followed by a corrected copy of such, both with a waiver of RO review. A prior final rating decision denied the Veteran's claim of service connection for the headaches. By addressing the matter de novo, the RO implicitly reopened such claim; however, the question of whether new and material evidence has been received to reopen a claim that was previously finally denied must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The issue of service connection for sinusitis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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 matter of service connection for headaches, on de novo review, is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The reduction in the rating for the Veteran's allergic rhinitis from 30 percent, effective February 1, 2012, was based on examination findings showing improvement (i.e., no polyps) and was implemented in accordance with governing regulatory due process provisions; the proposal to reduce the rating was by a June 2011 rating decision that followed the two examinations, and the Veteran was notified by letter that same month; the reduction was implemented by a rating decision in November 2011, with reduction to occur prospectively in February 2012. 2. A 30 percent rating is the maximum schedular rating for allergic rhinitis; factors warranting referral for an extraschedular rating are not shown or alleged. 3. At no time from February 1, 2012 is the Veteran's allergic rhinitis shown to have been manifested by polyps. 4. An unappealed August 1995 rating decision denied the Veteran's attempt to reopen a claim of service connection for headaches, which was previously denied on the basis that such disability was not shown to be related to the Veteran's service. 5. Evidence received since the August 1995 rating decision includes evidence not of record at the time of that decision, and suggests the Veteran's headaches may be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for headaches; and raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The reduction in the rating for the Veteran's allergic rhinitis from 30 percent, effective February 1, 2012, was proper; a rating for allergic rhinitis in excess of 30 percent prior to February 1, 2012 or in excess of 10 percent from that date is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.321(b)(1), 3.344, 4.1-4.7, 4.21, 4.97, Diagnostic Code (Code) 6522. 2. New and material evidence has been received, and the claim of service connection for a headache disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the Veteran's claims. Regarding the claim to reopen, there is no need to belabor the impact of the VCAA, as any VCAA mandated duty omission is harmless (because this decision reopens the claim). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of the increased rating claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). November and December 2010 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The appellant has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. There are specific regulatory criteria governing reductions in disability ratings. These criteria include notice provisions specific to reductions. They have been satisfied as discussed in greater detail below. The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations to evaluate his rhinitis in January and March 2011. The Board notes that the VA examination reports contain sufficient information to properly address the Veteran's claim, and are adequate for rating purposes. The examiner noted the presence or absence of the findings required to rate rhinitis. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Rating Reduction/Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earnings capacity resulting from the disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged" ratings may be assigned for distinct periods where the severity of the disability varied, if warranted by factual data. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payment should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The above considerations apply to ratings which have continued for long periods at the same level (five years or more), and do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement will warrant a reduction in rating. 38 C.F.R. § 3.344(c). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Allergic rhinitis is rated under Code 6522, which provides for a 10 percent rating for allergic or vasomotor rhinitis, without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. With polyps, a [maximum] 30 percent rating is warranted. 38 C.F.R. § 4.97. The Veteran filed a claim for increase in October 2010. Hence, the relevant evidentiary window begins in October 2009 (one year before the Veteran filed his claim for an increased rating), and continues to the present time. Private and VA treatment records (and history noted on VA examinations) show ongoing treatment for allergic rhinitis, including in February 2011, nasal septal deviation to the left was noted, which was found to be severe and completely occluded; the assessment was "likely rhinitis secondary to his septal deviation." July and November 2011 records note that the Veteran has 100 percent obstruction of his left nasal passage and 30 percent on his right side. A December 2012 record notes an assessment of epistaxis and deviated nasal septum. In January 2013, it was noted that the Veteran's nose was inflamed. On January 2011 VA examination, the Veteran reported he sustained nasal trauma in service when a generator fell on his face. He reported he currently could not breathe out of the left side of his nose. The VA examiner noted that the Veteran's course was stable, and that he was taking Claritin daily, in addition to using nasal sprays. Current symptoms included nasal congestion, itchy nose, and watery eyes. Breathing difficulty was noted; however, there was no speech impairment. On physical examination there was 80 percent left nasal obstruction and 0 percent right nasal obstruction; nasal polyps were not present. There was septal deviation. The examiner reviewed a May 2010 CT scan, which showed mucosal thickening within the frontal sinuses. Chronic rhinosinusitis was diagnosed. When the RO issued the January 2011 rating decision continuing the 30 percent rating for rhinitis, the Veteran was notified that because his condition has shown improvement, a review examination would be scheduled. On such examination in March 2011, the VA examiner (who reviewed the Veteran's claims file) stated that the records provided to him do not conclusively indicate that there was ever a nasal polyp. He stated that he could not find any documentation of polyps by direct visualization. He noted prior treatment records, including: * A 1999 sinus CT scan when the radiologist described a polyp-shaped defect which he read as a mucous retention cyst (not a polyp); an ENT specialist later noted that the CT showed a large inflammatory polyp in the right maxillary sinus; * A 2004 CT scan of the sinus, which was read as "reveal polypoid mucosal thickening involving the anterior right maxillary sinus. This appears less than before and still could represent a retention cyst or polyp;" * A 2010 CT of the sinus, which showed some mucosal thickening in the right maxillary sinus; the radiologist determined it was more likely a mucous retention cyst. The examiner explained that whatever the lesion was, it apparently regressed between 2004 and 2010, which would not be unusual for either a mucous retention cyst or a nasal polyp. The examiner concluded that the Veteran may have had a poorly documented right maxillary sinus nasal polyp from 1999 through 2004, and did not have one in 2010. Further, he stated that since the lesion was not directly visualized by ENT, he would place more weight on the radiology specialist's interpretation of the CT scan in 1999, which was "likely a mucous retention cyst." In March and November 2011 and August 2012, the Veteran submitted statements regarding an injury to his nose/face that he suffered in service. The Veteran also submitted internet articles regarding nasal polyps, allergic rhinitis and septoplasty. Based on the January and March 2011 examination findings, the RO proposed a reduction in the evaluation for rhinitis from 30 to 0 percent. The Veteran was notified of the proposal to reduce by a rating decision issued in June 2011; he was notified of his right to challenge the proposed reduction and was afforded an opportunity to present evidence and/or have a hearing. A November 2011 rating decision (after the Veteran responded) reduced the rating for rhinitis from 30 to 10 percent, effective February 1, 2012. The reduction was made effective as specified by regulation, i.e., effective the last day of the month in which a 60 day period from the date of notice expired. At the May 2013 hearing, the Veteran testified that he has not had polyps during the pendency of this appeal, but that doctors have told him that the polyps come and go. He testified that the last time he had a polyp was in 2008. Regarding the propriety of the reduction, the Board must focus on the evidence available to the RO at the time the reduction was implemented, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). Based on the findings of no polyps on both January and March 2011 VA examinations showing there were no polyps, as well as the absence of any polyps shown in treatment records during the reduction period, the Board finds that the reduction in the rating from 30 to 10 percent was clearly warranted. What distinguishes the criteria for a 30 percent rating from those for a 10 percent rating is a showing of polyps. The Veteran himself has acknowledged he did not have polyps during the relevant period. Turning to the rating for the rhinitis since the reduction, it is noteworthy that the Veteran does not allege he currently has polyps, but appears to indicate a higher rating is warranted because he is at risk for recurrence of polyps. See November 2011 statement; see also May 2013 hearing testimony. The Board notes that ratings are based on actual impairment (pathology/functional impairment), and not the risk for impairment. It is neither alleged nor shown that the Veteran has polyps currently. Accordingly, a rating in excess of 10 percent is not warranted at any time since February 1, 2012. As the process began with a claim for increase when the rhinitis was rated 30 percent, the analysis turns to whether at any time prior to the reduction, the Veteran's rhinitis warranted a rating in excess of 30 percent. Under Code 6522, 30 percent is the highest schedular rating possible. The Board has considered whether the Veteran's rhinitis presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). However, there are no exceptional or unusual factors shown regarding this disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe his disability level and symptomatology, and provides for more severe symptoms than shown by the evidence during the period in question (i.e., the evidence no longer shows the presence of polyps); thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Hence, referral for extraschedular consideration is not warranted. Further, there is no evidence to indicate that the Veteran is unable to maintain full time employment due to rhinitis. The January 2011 VA examination report notes that the Veteran indicated he is retired due to his headaches. Thus, the issue of entitlement to total disability based upon individual unemployability (TDIU) is not raised in the context of this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). New and Material Evidence Historically, an August 1995 rating decision denied the Veteran's attempt to reopen a claim of service connection for headaches, which had been previously denied on the basis that such disability was not manifested in, or shown to be related to, the Veteran's service. He was notified of the August 1995 rating decision and of his appellate rights. He did not file a notice of disagreement with that decision, and it became final based on the evidence of record at the time of the decision. It is the last final decision in the matter. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Id. at 327. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The evidence of record in August 1995 included: * Service treatment records (STRs) noting the Veteran complaining of frequent headaches in July 1957 and noting frequent or severe headaches on his separation report of medical history, dated November 1957. * A February 1975 statement from the Veteran's private physician noting a complaint of right-sided headaches with onset "about 3 years ago." The physician noted that the headaches resembled a cluster headache. * Postservice treatment records noting, among other things, low-grade frontal headache almost daily, vascular headaches...in a cluster pattern, severe, disabling headaches, and cluster headaches. An October 2008 record noted a history of head trauma when with the military in Japan. * A June 1995 VA examination report. Vascular headaches were diagnosed. * Internet articles regarding headaches. Evidence received subsequent to the August 1995 rating decision includes: * VA treatment records indicating treatment for headaches, to include migraine headaches and sinus headaches; a February 2011 record noting headaches with "some relationship to his trauma to his face which was extreme;" A September 2011 record noting chronic headache...no ocular etiology for pain." * A January 2011 VA examination report. Chronic recurrent headaches ("not convincing for rhinitis etiology") were diagnosed. The examiner opined that the Veteran's headaches are less likely than not caused by or a result of rhinitis. * March and November 2011 and August 2012 statements from the Veteran claiming he suffered an injury in service to his face and nose. * A headache log submitted by the Veteran. * Lay statements from the Veteran's family and friends describing his headaches. A lay statement from N.D. noted the Veteran suffered an injury in service and has suffered bad headaches since. * Hearing testimony from the Veteran to the effect that his headaches originated in service and he has continued to suffer from them to the present. * A June 2013 private opinion indicating the Veteran suffers "on and off from headaches which clinically appear to best fit the description of migraine headaches," and noting that the Veteran has suffered from headaches related to sinusitis since 1990. The Board finds that the evidence received since the August 1995 rating decision is new and material because it was not before agency decision-makers at that time, and directly addresses the unestablished fact necessary to substantiate the Veteran's claim of service connection for headaches. Specifically, the claim was previously denied based essentially on a finding that the Veteran's headaches were not shown to be related to his service. Evidence received since the August 1995 rating decision includes two nexus opinions, sworn testimony by the Veteran and lay statements by the Veteran and his family and friends. This additional evidence tends to relate the Veteran's headaches to his service and to a disability for which service connection is sought, and therefore specifically addresses the unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (Section 3.156(a) "must be read as creating a low threshold" which "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim."). Thus, the additional evidence received is new and material and is sufficient to reopen the claim of service connection for headaches. De novo review of the claim is addressed in the remand below. ORDER The appeal to reopen a claim of service connection for headaches is granted. The appeal challenging the propriety of the reduction of the Veteran's rating for allergic rhinitis from 30 percent to 10 percent, effective February 1, 2012, is denied. Ratings for the Veteran's allergic rhinitis in excess of 30 percent for the period prior to February 1, 2012 and/or in excess of 10 percent from that date are denied. REMAND A close review of the record found that additional development is necessary to properly address the Veteran's appeal seeking service connection for headaches. Treatment records and medical opinions note diagnoses of varying types of headaches, to include sinus headaches, migraine headaches, vascular headaches, ocular headaches, and cluster headaches. Medical opinions in the record are also conflicting. On January 2011 VA examination, the diagnosis was chronic recurrent headaches. The examiner opined that such headaches were less likely than not related to service. The examiner noted that the Veteran has had diagnoses of variants of cluster headache as well as vascular headaches. He noted that it is significant that the Veteran has seen three ENT specialists over the years and two found non-rhinitis related headache syndrome, while the third, and most recent opinion, concluded the headaches seem more like ocular migraines. The examiner concluded that the presence of photophobia, sound sensitivity, heat/sweat sensitivity, watery eyes, swelling of skin in temporal region, as well as lower eyelid with headaches, and the Veteran's observation that they tend to worsen when he concentrates more all suggest to him "that the headaches are not strictly or even majorly affected by his rhinitis/chronic rhinosinusitis." In June 2013, the Veteran submitted a private opinion from Dr. Cusack. Dr. Cusack stated that the Veteran "suffers on and off from headaches which clinically appear to best fit the description of migraine headaches." He further stated that [the Veteran] "has suffered from headaches related to sinusitis since [he] first saw him in the clinic in 1990." Another medical opinion is necessary to resolve the conflicts in the medical evidence presented by the record. Accordingly, the case is REMANDED for the following: (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 should arrange for all further development needed for de novo review of the Veteran's claim, to include forwarding the Veteran's record to a neurologist for review and a medical opinion as to whether his headache disability is related to his service. Based on review of the record, the consulting neurologist should provide opinions that respond to the following: Based on the factual evidence of record, please identify the most appropriate diagnosis and likely etiology for the Veteran's headaches. Specifically, is it at least as likely as not (a 50 percent or better probability) that the headaches are related to the Veteran's service (to include as due to undocumented head trauma therein). The examiner should address any credibility issues raised by this theory of entitlement. Is it at least as likely as not (a 50 percent or better probability) that the Veteran's headache disability was either caused or aggravated by (increased in severity due to) his service-connected rhinitis (or sinusitis for which service connection is claimed). If the opinion is to the effect that rhinitis (or sinusitis) did not cause, but aggravated, the headache disability, the examiner should identify, to the extent possible, the degree of headache disability (pathology/impairment) that is due to such aggravation. The examiner must explain the rationale for all opinions, citing to supporting factual data. 2. The RO should then re-adjudicate (de novo) the reopened claim of service connection for headaches. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. 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 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). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs