Citation Nr: 1327002 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-18 838A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a respiratory disorder, to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to August 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing in May 2011; a transcript of the hearing is of record. The Board notes that the Veteran had perfected appeals regarding entitlement to service connection for a back disability, a psychiatric disability, and severe cramping. An August 2009 rating decision granted service connection for major depressive disorder with anxiety, and an October 2012 rating decision granted service connection for back sprain with osteoarthritis and acquired spondylolisthesis of the lumbar spine and ovarian cyst with dysfunctional uterine bleeding. Consequently, those issues have been resolved and are not before the Board. 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 Records from service reflect complaints of headaches. They also show the Veteran advised that she had a history of migraines prior to service in high school. Under oath at her 2013 hearing she likewise testified that she had migraines prior to service. She should be examined to ascertain whether any current headache disability clearly an unmistakably existed prior to service and if so, was aggravated by service. The evidence also shows that not all VA records identified by the Veteran as relevant to her claims have been obtained. These were indicated to be from Buffalo, New York; Dublin, Georgia; and Albany, Georgia VA Medical Centers. These records should be sought. Records of relevant current treatment dated since September 2012 likewise should be sought. Accordingly, the case is Remanded for the following: 1. Associate with the claims file, physically or electronically, copies of relevant VA treatment records from the Tuskegee and Montgomery VAMCs dating since September 2012, from the Buffalo, New York VAMC from June to July 2011, and any records from the Albany and Dublin, Georgia VAMCs since the Veteran's separation from active service in 2005. 2. Notify the Veteran that she may submit lay statements from individuals who have first-hand knowledge, and or were contemporaneously informed of her in-service and post-service migraine headache and respiratory problems, as well as her pre-service migraine headache problems. The Veteran should also be invited to submit medical opinions addressing whether there is a relationship between her migraine headaches and respiratory disorder and service. The Veteran should be provided an appropriate amount of time to submit this lay and/or medical evidence. 3. The Veteran should be asked to identify the places at which she received any treatment for headaches prior to service, the records of which should be sought. 4. After associating any outstanding treatment records with the claims file, arrange for the Veteran to be afforded an appropriate VA examination to determine the current nature, onset and likely etiology of her migraine headaches. The claims file should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated studies should be performed, and all findings should be reported in detail. The examiner is asked to opine as to whether any current chronic headache disability clearly and unmistakably existed prior to service, and if so, whether it underwent a permanent increase in severity during service. If such an increase occurred, the examiner should indicate whether the increase in severity was due to the natural progress of the disability. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 5. Arrange for the Veteran to be afforded an appropriate VA respiratory examination to determine the current nature, onset and likely etiology of any respiratory disorder found to be present. The claims file should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated studies should be performed, and all findings should be reported in detail. The examiner should identify all current respiratory disorders found to be present. With respect to each such disorder found, the examiner should opine as to whether it is at least as likely as not that the Veteran's respiratory disorder(s) had its onset during her active service, to include her reported in-service exposure to asbestos. Alternatively, the examiner should state whether it is at least as likely as not that any diagnosed respiratory disorder is otherwise related to service. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so, to include a recitation of any missing facts necessary to render a non-speculative opinion. 6. Then readjudicate the appeal. If the benefits sought on appeal remain denied, issue the Veteran and her representative a supplemental statement of the case and afford the Veteran a reasonable opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL E. KILCOYNE 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). After review of the evidence of record, the Board has found that additional development is necessary for proper adjudication of the Veteran's claims for service connection for migraine headaches and a respiratory disorder. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection and meets the low threshold requirements that there is an event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associate with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After further review of the claims file, the Board believes this low threshold requirement has been met in this case. In regards to the Veteran's claim for service connection for migraine headaches, her service enlistment examination report is negative for any complaints or findings regarding migraine headaches. However, on June 2005 service separation examination, it was noted she had a history of migraines in high school (prior to service). Likewise, at the May 2013 Travel Board hearing, the Veteran testified that she was diagnosed with migraines before service. Nonetheless, she argued that she should be granted service connection for her migraine headaches as it was aggravated by her service. VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). 38 C.F.R. § 3.304(b) requires that VA, rather than the claimant, bear the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. See also Cotant v. Principi, 17 Vet. App. 116 (2003). A pre-existing injury or disease will be considered (presumed) to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). As the Veteran has conceded pre-existence of the disability/symptomatology prior to her entry into service, the question turns to whether or not her disability was aggravated by service. Notably, her service treatment records include a January 2005 report noting her complaint of a headache for one day, and on June 2005 service separation examination, she indicated she has suffered from frequent or severe headaches. In addition, at the May 2013 Travel Board hearing, she testified that she had headaches throughout her service but that she did not always seek treatment for them. In regards to the Veteran's claim for a respiratory disorder, she has contended, in part, that her current respiratory symptoms are due to in-service asbestos exposure. She has provided details regarding the circumstances of this purported exposure. See May 2013 Travel Board hearing. With respect to claims involving asbestos exposure, there is no specific statutory guidance, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related disease, which has been incorporated into the VA Adjudication Procedure Manual. See DVB CIRCULAR 21-88-8, Asbestos-Related Diseases (May 11, 1998); VA Adjudication Procedure Manual Rewrite, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, effective from December 13, 2005. The provisions stipulate that VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post-service occupational and other asbestos exposure, and determine whether there is a relationship between asbestos exposure in service and the claimed disease. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Finally, the most recent VA treatment records in the claims file are dated from September 2012. However, all of the VA treatment records, except for a few treatment records from the Albany VA Medical Center up to August 2008, are from the Tuskegee and Montgomery VAMCs. Notably, in an October 2011 VA Form 21-4142 (Authorization and Consent to Release Information to the VA), the Veteran indicated he has received treatment for his migraine headaches and respiratory disorder at the Buffalo, New York VAMC from June to July 2011; such records are not associated with the claims file and it does not appear that such records were requested. Likewise, at the May 2013 Travel Board hearing, the Veteran testified that he received treatment at the Albany and Dublin, Georgia VAMCs; such records are also not associated with the claims file. Any outstanding pertinent VA treatment records as to the matters on appeal should either be made accessible on Virtual VA or be printed and added to the Veteran's claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: