Citation Nr: 1326135 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 06-08 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2006, the Veteran requested that she be afforded a Board hearing, but later that same month, she clarified that she no longer wanted a Board hearing. In February 2010, the Board remanded this matter and the claim seeking service connection for an acquired psychiatric disability for additional development. In December 2011, the RO via the Appeals Management Center (AMC) granted service connection for an acquired psychiatric disability; therefore, that issue is no longer before the Board and will not be discussed herein. For reasons explained below, the appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND As noted above, this matter was remanded in February 2010 for additional development; however, the requested development has not been substantially completed and a remand for corrective action is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board ordered that the Veteran be scheduled for an appropriate VA examination to ascertain the nature and etiology of her claimed migraine headaches. All opinions and conclusions expressed were to be supported by a complete rationale in the examination report. The Veteran was scheduled for and attended a VA examination for her migraine headaches in May 2010. The examiner opined that it is less likely than not that the Veteran's migraine headaches began or are associated with military service. The examiner did not, however, provide a rationale in support of the opinion. Therefore, this examination report is inadequate for rating purposes. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (holding that the failure of a physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication on the merits). In addition to the foregoing, it is not clear if the May 2010 VA examiner was aware of and considered all relevant evidence in this case. In this regard, the May 2010 VA examiner stated that there were no instances of treatment for migraine headaches during service, further noting that the Veteran reported that her headaches began in 2002 after the birth of her child. In the February 2010 Remand, the Board noted that, while the STRs do not specifically mention migraine headaches, the records show the Veteran reported experiencing headaches on several occasions during service, including in June 2001, November 2002, April 2003, and August 2003. The Veteran also reported on her May 2003 Post-Deployment Health Assessment that she experienced headaches during and after her deployment (from February 2003 to April 2003). In addition to the foregoing, review of the record reveals that the Veteran's husband recently submitted a statement stating that the Veteran complained and suffered tremendously from headaches throughout her military career and still does now. He also stated that the Veteran was given medications during service and thereafter, including by VA. See January 2012 lay statement from A.C. Lay persons are generally capable of providing evidence regarding facts or circumstances that can be observed and described by a layperson. See Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the Board finds that the Veteran's husband is competent to report that the Veteran experienced headaches during service and thereafter. Therefore, there is competent lay evidence of headaches during service, as well as competent lay evidence of continuity of related symptomatology following service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a VA examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service, and the examination is inadequate when the examiner does not comment on the Veteran's report of in-service injury and, instead, relies on the absence of evidence in the service medical records to provide a negative opinion). The May 2010 VA examiner did not address the lay and medical evidence (STRs) showing the Veteran complained of headaches during active service; nor did the examiner consider the competent lay evidence of continuity of symptomatology following service. As such, the Board is unable to determine that the examiner considered all relevant facts in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board concludes that a remand is necessary in this case in order to obtain an addendum medical opinion, with rationale, which addresses whether it is at least as likely as not that the Veteran's migraine headaches were manifested during or otherwise caused by her active duty service, to include the treatment for headaches therein. The VA examiner will be requested to consider all lay and medical evidence of record prior to rendering the requested opinion. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's claims folders and copies of pertinent records in the Virtual VA file to the May 2010 examiner. After reviewing the lay and medical evidence of record, the examiner should provide an addendum report that addresses whether it is at least as likely as not (i.e., 50% or higher degree of probability) that the Veteran's migraine headaches were manifested during service or were otherwise caused by active duty service or any incident therein, to include the reports of headaches noted in June 2001, November 2002, April 2003, and August 2003. See also May 2003 Post-Deployment Health Assessment. In answering the foregoing, the VA examiner must consider all lay and medical evidence of record, including the competent lay evidence of continuity of related symptomatology following service. All opinions and conclusions expressed must be supported by a complete rationale in the report. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and explain why an answer would be speculative. If the May 2010 VA examiner is not available, a VA physician knowledgeable in evaluating migraine headaches should be asked to provide the requested opinion. If the examiner designated to provide the opinion cannot provide the requested opinion without examining the Veteran, an examination should be scheduled. Notice of any scheduled hearing should be sent to the Veteran's address of record and associated with the claims file. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 3. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be furnished a supplemental statement of the case (SSOC) that addresses all evidence received into the record since the last SSOC and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. The Veteran 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 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). _________________________________________________ A. J. TURNIPSEED 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).