Citation Nr: 1323700 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-04 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a disability of the thoracic and lumbar spines. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. 6. Entitlement to service connection for gastroesophageal reflux disease (GERD). 7. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 2002 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 The evidence of record does not show that the Veteran has a cervical spine disability, a disability of the thoracic and lumbar spines, a left shoulder disability, a right knee disability, a left knee disability, or GERD, that is related to active duty service. CONCLUSION OF LAW A cervical spine disability, a disability of the thoracic and lumbar spines, a left shoulder disability, a right knee disability, a left knee disability, and GERD, were not incurred in, or otherwise due to, the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for a cervical spine disability, a disability of the thoracic and lumbar spines, a left shoulder disability, a right knee disability, and a left knee disability. He argues that he was treated for pain in the claimed areas during service, and that he has the claimed disabilities due to carrying heavy loads on his back, and/or due to heavy physical training. He further argues that he injured his thoracic spine and neck during airborne training when a parachute cord was wrapped around his neck, but that he did not seek treatment because he feared being dropped from the program. With regard to GERD, he asserts that although he was not treated for this condition during service, that it developed in 2004, and that he self-treated it with TUMS. See Veteran's notice of disagreement, received in July 2009. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). 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 are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a); and that continuity of symptomatology only relates the specified chronic diseases). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. The Veteran's service treatment reports show that in November 2004, following a deployment to Kuwait and Iraq, the Veteran denied having back pain, or muscle aches. In November 2007, following a second deployment to Iraq, he complained of back pain, and he denied having muscle aches. See post-deployment health assessment, dated in November 2007. Between February and May of 2008, the Veteran was treated for complaints of back and shoulder pain that had not been improved with profiling. He denied any history of trauma. The assessments were cervicalgia, joint pain localized in the shoulder, somatic dysfunction of the cervical, thoracic, and lumbar regions, and cervical radiculopathy. X-rays of the cervical, lumbar and thoracic spines were noted to be normal. An "adult preventive and chronic care flowsheet," (DD Form 2766), indicates that the Veteran was treated for neck pain in November 2007, and that between March and May of 2008 he was treated for somatic dysfunction of sacrum, somatic dysfunction of lumbar region, cervical radiculopathy, somatic dysfunction of thoracic region, somatic dysfunction of cervical region, cervicalgia, and "joint pain, localized in the shoulder." At this point the Board notes that "Somatic dysfunction" means relating to skeletal muscles. ZO v. Brown, 4 Vet. App. 440, 441 (1993). The Veteran's separation examination report, dated in May 2008, shows that he was noted to have upper back, neck and shoulder pain. In the associated "report of medical history," the Veteran indicated that he had "recurrent back pain or any back problem," "painful shoulder, elbow or wrist," knee trouble, and "frequent or severe headache"; he denied having had "impaired use of arms, legs, hands, or feet," "frequent indigestion or heartburn," or "stomach, liver, intestinal trouble, or ulcer." The report notes pain/pinched nerve in back, "pain runs on left side of back up and through left shoulder and up neck, seen chiropractor," "pain in knees but at this time no real concern," "migraine headaches frequently," a notation of left shoulder symptoms, and upper back and neck pain that were treated by a chiropractor, and headaches secondary to neck pain. As for the post-service medical evidence, it consists of VA reports, dated between 2008 and 2012. The relevant evidence is summarized as follows: An August 2008 VA progress note shows that the Veteran reported having a four-year history of headaches with use of ibuprofen, GERD "since he started taking ibuprofen," a 4-to-5 year history of left shoulder pain, low back pain "since the other day when he picked up a load," and right knee pain since service in Iraq carrying heavy loads. X-rays of the cervical spine, left shoulder, and right knee were noted to be normal. Later that same month, he was treated for complaints of left shoulder pain. A VA general medical examination report, dated in September 2008, shows that the examiner indicated that the Veteran's claims file had not been reviewed. The Veteran indicated that he had mid-thoracic pain that radiated into the neck, right knee symptoms, and stiffness and limited motion due to back and neck pain that radiated into the left shoulder (which also had some numbness). On examination of the bilateral upper and lower extremities, there was no atrophy, spasm, or other muscle abnormality. Muscle strength was 5/5 in all extremities. There was no ankylosis, evidence of inflammatory arthritis, pain on motion, abnormalities of spinal muscle, or fracture of a vertebral body. The range of motion in all joints was normal. The range of motion in the cervical spine was normal; there was no pain on motion. A neurological examination was unremarkable. There was no motor or sensory loss. Reflexes in the upper and lower extremities were 2+. The diagnoses included mid-back and cervical strain. A VA Disability Benefits Questionnaire (DBQ) for the back, dated in November 2012, shows that the examiner indicated that the Veteran's claims file had not been reviewed. The Veteran reported a history of carrying a backpack throughout his service, without any specific accident, injury, or incident for his thoracic and lower spine. He reported being treated for lumbar pain at an aid station and receiving NSAIDs (non-steroidal anti-inflammatory drugs). The Veteran stated that he was currently without thoracic or lumbar spine complaints, and that he did not wish to make a lumbar or thoracic spine claim at this time. On examination, there was no objective evidence of painful motion. There was no additional limitation of motion of the thoracolumbar spine following repetitive motion testing. There was no functional loss, or functional impairment, of the thoracolumbar spine. Strength was 5/5 in the hips, and bilateral lower extremities. There was no muscle atrophy. Reflexes in the lower extremities were 2+, bilaterally. A sensory examination of the lower extremities was normal. There was no radicular pain or other signs or symptoms due to radiculopathy. There was no IVDS (intervertebral disc syndrome) of the thoracolumbar spine. X-rays were noted not to show arthritis. There was no vertebral fracture. The report states that the Veteran failed to report for radiographic studies of the lumbar and thoracic spine. The report notes that a thoracolumbar spine condition did not impact the Veteran's ability to work. The examiner indicated that the Veteran has never been diagnosed with, and does not now have, a thoracolumbar (back) spine condition. The examiner indicated that the claimed lumbar and thoracic spine conditions were less likely than not (less than 50 percent or greater probability) incurred in or caused by service. The examiner explained that the Veteran has a normal clinical examination, and that he failed to report for lumbar and thoracic spine X-rays ordered in November 2012. A VA Disability Benefits Questionnaire (DBQ) for the cervical spine, dated in November 2012, shows that the Veteran reported a history of cervical pain from carrying a backpack and equipment, since 2007. He stated that he currently had left-sided cervical pain that originated in the upper cervical spine, with radiation into the left shoulder. He stated that he had this pain almost daily, and that the pain was intermittent, lasting three to four days, alleviated for a day or two, and then returning. He stated that he awoke with pain in the morning, and that it was worse with cold, and damp weather. He reported having flare-ups six to ten times in the past year, lasting a day or so, without triggers for cervical pain. He stated that he was working full-time in construction. On examination, there was no objective evidence of pain on motion. There was no additional limitation in the range of motion following repetitive use testing, and no functional loss, or functional impairment of the cervical spine. There was no guarding, or muscle spasm. Strength in the upper extremities was 5/5, bilaterally. Reflexes in the upper extremities were 2+, bilaterally. A sensory examination of the upper extremities was normal. There was no radicular pain or other signs or symptoms due to radiculopathy. There was no IVDS of the cervical spine. Arthritis was not shown by X-ray. There was no vertebral fracture. A July 2009 MRI (magnetic resonance imaging) study was noted to show well-aligned vertebral bodies, with a normal cord, and normal discs. The impression was normal MRI of the cervical spine. A November 2012 X-ray was noted to be negative. A cervical spine condition did not impact the Veteran's ability to work. The examiner indicated that the Veteran has never been diagnosed with, and does not now have, a cervical spine condition. The examiner indicated that the claimed cervical spine disability was less likely than not (less than 50 percent or greater probability) incurred in or caused by service. The examiner explained that the Veteran is without a cervical spine diagnosis, that there was a normal clinical examination for the cervical spine, that there were negative radiographic findings and a normal CT of the cervical spine in July 2009, and that X-rays taken in November 2012 were negative. A VA Disability Benefits Questionnaire (DBQ) for the shoulder and arms, dated in November 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported a history of left shoulder pain that occurred together with cervical spine pain, since 2007. He complained of six to ten flare-ups in the past year, lasting a day or so, without triggers for cervical pain, alleviated with NSAIDs, time, and rest. On examination, there was no objective evidence of pain on motion. There was no additional limitation in the range of motion following repetitive use testing, and no functional loss in the left upper extremity. There was no guarding. Strength in the left upper extremity was 5/5. There was no shoulder ankylosis, and no history of mechanical symptoms or recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint. There was no AC (acromioclavicular) joint condition, and no other impairment of the clavicle or scapula. Arthritis was not shown by X-ray. A left shoulder condition did not impact the Veteran's ability to work. The examiner indicated that the Veteran has never been diagnosed with, and does not now have, a shoulder or arm condition. The examiner indicated that the claimed left shoulder disability was less likely than not (less than 50 percent or greater probability) incurred in or caused by service. The examiner explained that the Veteran has a current diagnosis of "pain in joint involving shoulder region: left shoulder," since August 2008, with a normal clinical examination with a full range of motion, that radiographic findings are negative for pathology, and that service treatment reports are silent as to a left shoulder condition. A VA Disability Benefits Questionnaire (DBQ) for the knee and lower leg, dated in November 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported a history of a chronic bilateral knee condition since 2004-2006, without specific accident, injury, or incident. He associated his pain with carrying a 60-pound rucksack repetitively, and with PT (physical training). He denied having flare-ups. On examination, there was no objective evidence of pain on motion. There was no additional limitation in the range of motion following repetitive use testing, and no functional loss or functional impairment in the lower extremities. There was no guarding. Strength in the lower extremities was 5/5. There was no instability. There was no history of recurrent patellar subluxation or dislocation. There were no meniscal conditions or related surgeries. There was no history of meniscectomy, or total knee joint replacement. Arthritis, and patellar subluxation, were not shown by X-ray. A knee or lower leg condition did not impact the Veteran's ability to work. The examiner indicated that the Veteran has never been diagnosed with, and does not now have, a knee or lower leg condition. The examiner indicated that the claimed knee conditions were less likely than not (less than 50 percent or greater probability) incurred in or caused by service. The examiner explained that the Veteran has a normal clinical examination for the bilateral knees, with negative radiographic findings for the bilateral knees (in November 2012). The examiner stated that the Veteran is without a right or left knee diagnosis, functional loss, or disability. A VA Disability Benefits Questionnaire (DBQ) for esophageal conditions, dated in November 2012, shows that that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported a history of indigestion since 2004, with daily use of TUMS. The report notes that he stated that he was not treated for this condition during service, but that he was treated for GERD after service, in August 2008. The examiner indicated that the Veteran now has, or has been, diagnosed with an esophageal condition, specifically, GERD. The report notes the following: the Veteran has current gastric distress with heartburn, gastric reflux of acid, with increased reflux at night, and reflux worst post-prandial with certain spices and foods. He used Omeprazole daily, with a 95 percent reduction in symptoms. The Veteran has persistent recurrent epigastric distress, pyrosis, and reflux. The examiner indicated that the claimed GERD was less likely than not (less than 50 percent or greater probability) incurred in or caused by service. The examiner explained that the Veteran's GERD was not diagnosed until after service, in August 2008, and that service treatment reports did not show a diagnosis of GERD, or treatment for GERD. The Veteran's service records indicate that his awards include the Combat Infantryman Badge. Therefore, participation in combat is established and the Veteran is entitled to the presumptions at 38 U.S.C.A. § 1154(b). The Board assumes that he was responsible for carrying heavy loads in his backpack, as he described, during combat situations. The Veteran does not, however, assert that any of the claimed disabilities were incurred during combat. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C.A. § 1154 does not alter the fundamental requirements of a diagnosis, and a medical nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Furthermore, although the Veteran has served in the Persian Gulf theater (Kuwait and Iraq), he does not assert, and there is no evidence to show, that he has any relevant signs and symptoms due to an undiagnosed illness or multi-symptom illness. Indeed, in his August 2008 statement in support of claim, the Veteran specifically writes that he has no known disabilities that can be related to environmental hazards during his service in Iraq. Therefore, the laws pertaining to undiagnosed illnesses are not for application. See 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012); 38 C.F.R. § 3.317 (2012). The Board finds that the claims must be denied. As an initial matter, VA generally does not grant service connection for symptoms which have not been associated with trauma or a disease process. See e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Lumbar and cervical strain are exceptions to this rule. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). In this case, the Veteran's service treatment reports show that he received a number of treatments for neck, back, and left shoulder pain. In this regard, although he has asserted that he injured his thoracic and cervical spines during airborne training, his service treatment records, and post-service medical records, show that he denied a history of any relevant trauma. His diagnoses noted somatic dysfunction of the cervical, thoracic, and lumbar regions, and cervical radiculopathy, and "joint pain, localized in the shoulder." He did not receive any treatment for GERD, or knee symptoms. His complaints of pain in his left shoulder, back and neck, and knees, were noted upon separation from service, however, there were no clinical findings. During service, X-rays of the cervical, lumbar and thoracic spines were noted to be normal. Therefore, the Veteran is not shown to have any of the claimed disabilities during service, and thus, a chronic disease is not shown. See 38 C.F.R. § 3.309(b). Furthermore, with regard to the claims for a cervical spine disability, a lumbar and thoracic spine disability, a left shoulder disability, and bilateral knee disabilities, the Board finds that the preponderance of the evidence shows that the Veteran does not have these disabilities. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1110, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). The February 2012 DBQ's clearly show that the Veteran was determined not to have a cervical spine disability, a lumbar or thoracic spine disability, a left shoulder disability, or a knee disability. In this regard, although the September 2008 VA examination report contains a diagnosis of mid-back and cervical strain, this report is afforded reduced probative value, as the associated X-ray report for the cervical spine was normal, as this report is over four years old, and as it is not shown to have been based on a review of the Veteran's claims file or any other detailed and reliable history. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). In addition, there is no subsequently-dated medical evidence to show the existence of these disabilities, and the Board affords more probative value to the February 2012 DBQs, which are more recent. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Finally, the Board points out that there is no competent opinion in support of any of the claims. In this regard, the only competent opinions are found in the February 2012 DBQs, and these opinions weigh against the claims. These opinions are considered to be highly probative evidence against the claims, as they are shown to have been based on a review of the Veteran's medical records, and they are accompanied by sufficient rationales. See Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean. The Board therefore finds that the preponderance of the evidence is against the claims, and that the claims must be denied. With regard to the claim for GERD, the Board finds that this claim must be denied. The Veteran has reported to a VA health care professional that he had GERD during service. See February 2012 esophageal conditions DBQ. However, the Veteran was not treated for GERD during service, nor was GERD noted upon separation from service. His report of medical history upon separation from service shows that he denied having had "frequent indigestion or heartburn," or "stomach, liver, intestinal trouble, or ulcer," and that no other relevant symptoms were noted. Given the foregoing, the Veteran is not shown to have GERD during service, and thus, a chronic disease is not shown. See 38 C.F.R. § 3.309(b). Rather, the earliest post-service medical evidence of any relevant findings is found an August 2008 VA progress note. The U.S. Court of Appeals for the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). GERD is not among these conditions. In addition, there is no competent medical evidence to show that the Veteran's currently shown GERD is related to his service. In this regard, the only competent opinion is contained in the February 2012 VA esophageal conditions DBQ, and this opinion weighs against the claim. This opinion is considered to be highly probative evidence against the claim, as it is shown to have been based on a review of the Veteran's medical records, and it is accompanied by a sufficient rationale. Neives- Rodriguez; Prejean. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring complex medical knowledge. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The issues on appeal are based on the contentions that a cervical spine disability, a disability of the thoracic and lumbar spines, a left shoulder disability, a right knee disability, and a left knee disability, were caused by service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether or not the Veteran has a cervical spine disability, a disability of the thoracic and lumbar spines, a left shoulder disability, a right knee disability, and a left knee disability, that are related to service, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With regard to the claim for GERD, as well as the other claims, the medical records have been discussed. To the extent that a layperson is competent to report GERD, the Veteran is not shown to have been treated for this disorder during service, and there is a competent medical opinion of record against the claim. Given the foregoing, the Board finds that the medical evidence outweighs the Veteran's contentions to the effect that a cervical spine disability, a disability of the thoracic and lumbar spines, a left shoulder disability, a right knee disability, a left knee disability, and GERD, were caused by service. The Board finds that the preponderance of the evidence is against the claims for service connection, and that the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Duties to Notify and Assist The Board finds that the duties to notify have been fulfilled by information provided to the Veteran in a letter from the RO dated in August 2008. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service medical reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA medical records. The Veteran and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claims on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims does not cause any prejudice to the Veteran. ORDER Service connection for a cervical spine disability, a disability of the thoracic and lumbar spines, a left shoulder disability, a right knee disability, a left knee disability, and GERD, is denied. REMAND The Veteran contends that he has headaches due to his service. He asserts that he developed headaches in 2003. See Veteran's notice of disagreement, received in July 2009. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. The Veteran's service treatment reports include a "report of medical history" which shows that upon separation from service, the Veteran indicated that he had "frequent or severe headache." The report notes "migraine headaches frequently," and headaches secondary to neck pain. However, and earlier November 2007 post-deployment health assessment report, prepared in conjunction with the end of his participation in the Iraq campaign, notes that the Veteran specifically denied headaches during his deployment. As for the post-service medical evidence, it includes an August 2008 VA progress note which shows that the Veteran reported having a four-year history of headaches with use of ibuprofen. A VA general medical examination report, dated in September 2008, shows that the diagnoses included headaches. A VA neurological examination report, dated in September 2008, shows that the Veteran reported a history of headaches since 2003 that were intermittent, with remissions. He stated that in the last 12 months, he had had headaches two to three times per month, that they lasted hours, and that most attacks were prostrating. Under the circumstances, and in view of the conflicting evidence reported by the Veteran during his service as to whether he suffered from headaches therein, the Veteran should be afforded a VA examination to determine whether or not he has headaches that are etiologically related to service. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure 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. The Veteran should be scheduled for a neurological examination, in order to ascertain the nature and etiology of any headaches found. The claims folder and a copy of this REMAND should be reviewed by the examiner, and the examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination. The examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that any headaches are a symptom of a diagnosed chronic condition that was manifested by the Veteran's service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. To help avoid future remand, the RO/AMC must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the claim on appeal must be adjudicated in light of all pertinent evidence and legal authority. If the benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claim file is returned to the Board for further appellate consideration. 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) ____________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs