Citation Nr: 1326280 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-18 523A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for post-concussion syndrome with headaches. 2. Entitlement to service connection for depression and anxiety, to include as secondary to post-concussion syndrome with headaches. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The appellant had periods of inactive duty for training (INACDUTRA) in the U.S. Army Reserves from April 2002 to March 2008, including a period of INACDUTRA on December 6, 2002. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision that denied service connection for post-concussion syndrome with headaches, and for depression and anxiety. The appellant timely appealed. In January 2012, the appellant withdrew her prior request for a Board hearing, in writing. Lastly, in addition to reviewing the appellant's paper claims file, the Board has surveyed the contents of her Virtual VA file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant and her representative when further action is required. REMAND Army Reserve records show that the appellant was involved in a motor vehicle accident on December 6, 2002, sustaining a head injury that subsequently was diagnosed as post-concussion syndrome. Computed tomography scans of the appellant's head in January 2003 were interpreted as negative. Records in the claims file reflect a history positive for two previous concussions and loss of consciousness-namely, one occurred while the appellant played basketball in high school; and the second occurred when the appellant fell from a horse. Medical treatment was not sought on either occasion. Records in the claims file also indicate that the appellant had been treated with medications for depression and for muscle contraction type of headaches, prior to the December 2002 motor vehicle accident. Private treatment records, dated in December 2002, include assessments of concussion from motor vehicle accident with post-traumatic headache; and increased symptoms of depression and restlessness. The appellant's depression was found to be significantly worse in March 2004. In December 2004, the appellant's treating physician, Arthur M. Waldman, M.D., indicated that the appellant continued to have significant difficulties and continued to be impaired cognitively and physically, and was undergoing treatment. In April 2005, Dr. Waldman opined that the appellant's anxiety and depression prevented her from being employed in any occupation; and that the appellant's prognosis was fair. In June 2005, the appellant's treating psychologist, Barbara Rothweiler, PhD., indicated that the appellant underwent psychotherapy sessions every two-to-three weeks since January 2004, which focused primarily on treatment of depression and anxiety. Dr. Rothweiler indicated that the appellant had reported a lifetime history of depression, anxiety, and periods of agoraphobia, with exacerbation of these symptoms since the December 2002 motor vehicle accident. Dr. Rothweiler indicated that with pharmacological management, the appellant was gainfully employed as a nurse prior to the December 2002 motor vehicle accident. The appellant currently reported marked symptoms of depression and anxiety, with periods of suicidal ideation. As a result of these symptoms, Dr. Rothweiler opined that the appellant currently was not able to work gainfully. A July 2009 VA examiner opined that the appellant's post-concussion syndrome was less likely than not related to the December 2002 motor vehicle accident; and rather, was more likely than not related to life former events, concussions, and behavioral health issues. Current symptoms also were attributed to the appellant's anxiety and depression, and no traumatic brain injury was found. Diagnoses included dysthymic disorder and anxiety disorder, which the examiner opined were more likely than not secondary to the appellant's post-concussion syndrome. In support of the opinions, the July 2009 VA examiner reasoned that the appellant had underwent neuropsychological counseling for years, as well as childhood counseling as a victim of sexual abuse; and current headache symptoms appeared to be mild, and were not commented upon by treating physicians in the past couple of years. The examiner did not address whether the appellant's pre-existing post-concussion syndrome was aggravated by the head injury sustained in the December 2002 motor vehicle accident. In a January 2010 addendum, the July 2009 examiner explained that the appellant's post-concussion syndrome was related to general anxiety and other emotional stress disorders, such as depression which appears to be a longstanding condition and related to various medical conditions and life stressors prior to the December 2002 motor vehicle accident. Based on the pre-existing medical records, the examiner opined that the appellant's chronic anxiety and depression did not appear to be explicitly exacerbated by the December 2002 motor vehicle accident. In April 2010, Dr. Waldman acknowledged the appellant's pre-existing conditions, and opined that the appellant's symptoms were significantly exacerbated by the head injury sustained in the December 2002 motor vehicle accident. No further rationale was provided. Under these circumstances, the Board finds that an informed medical opinion is necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2012). The Board notes that the presumptions of soundness and aggravation do not apply to periods of ACDUTRA or INACDUTRA. Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and request that she identify any records pertaining to post-concussion syndrome, headaches, and depression and anxiety that are not already of record, particularly medical records dating from 2008. After obtaining any necessary contact information and authorization from the appellant, please request treatment records that pertain to post-concussion syndrome; headaches; and depression and anxiety, and associate them with the appellant's claims file (physical or electronic). If, after making reasonable efforts to obtain named non-VA records the RO or AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO or AMC must notify the appellant and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claims; and (d) inform the appellant that she is ultimately responsible for providing the evidence. The appellant must then be given an opportunity to respond. 2. Thereafter, another VA medical opinion should be obtained from an appropriate clinician. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. Specifically, the clinician should opine as to when post-concussion syndrome first manifested (i.e., was post-concussion syndrome first manifested prior to the Dec. 6, 2002 accident, on INACDUTRA when the accident occurred, or after the accident). Please provide a complete explanation for the opinion. If prior to the accident, is it at least as likely as not (a probability of 50 percent or greater) that the appellant's pre-existing concussion injury was aggravated (i.e., permanently increased in severity) beyond its natural progression during INACDUTRA in December 2002. Please provide a complete explanation for the opinion. If it is determined that the concussion injury did not exist prior to the period of INACDUTRA, the clinician should address whether post-concussion syndrome with headaches has been manifested, at any point in time, since 2008. In this regard, the clinician's attention is directed to the July 2009 VA neurological examination report. The Board has also requested that the appellant authorize the release of relevant medical records dating from 2008 while the case is in remand status. The clinician should offer an opinion as to whether it is at least as likely as not, that, during the period of INACDUTRA in December 2002, she was disabled from the injury she incurred. Please provide a complete explanation for the opinion. The appellant's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated; and the addendum report should note review of the claims file. 3. After ensuring that the requested actions are completed, re-adjudicate the claims on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the claims file to the Board, if otherwise in order. The appellant and her representative have 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). These claims 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). _________________________________________________ S. S. TOTH 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).