Citation Nr: 1329196	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  10-00 956	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois

THE ISSUES

1.  Entitlement to service connections for headaches.

2.  Entitlement to an initial rating higher than 10 percent 
for posttraumatic stress disorder.

3.  Entitlement to a higher rating than 10 percent for a 
left knee disability.

4.  Entitlement to a compensable rating for tinea pedis.

REPRESENTATION

Veteran represented by:	Illinois Department of 
Veterans Affairs

WITNESSES AT HEARING ON APPEAL

The Veteran and Y. M. 
ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty 
from May 1984 to January 1992.

The issues or claims are before the Board of Veterans' 
Appeals (Board) on appeal of rating decisions in July 2007 
(headaches), October 2009 (tinea pedis), and November 2009 
(posttraumatic stress disorder and left knee) of a 
Department of Veterans Affairs (VA) Regional Office (RO).

On the claim of service connection for headaches in a rating 
decision in June 2000, the RO denied the claim, because 
there was only a single entry of headaches in 1986 and no 
subsequent finding of headaches in service.  After the 
Veteran was notified of the adverse determination and of his 
procedural and appellate rights, he did not appeal the 
rating decision, and no new and material evidence pertinent 
to the claim was received by VA within one year from the 
date that the RO mailed notice of the adverse determination 
to the Veteran.  The rating decision, denying the claim, 
became final by operation of law on the evidence of record 
(also referred to as finality).  38 U.S.C.A. § 7105(c); 
38 C.F.R. §§ 3.104, 3.156.

In September 2009, the RO received official service 
department records related to headaches after 1986 that had 
not been associated with the file when the RO first decided 
the claim in June 2000.  Under 38 C.F.R. § 3.156(c), 
additional relevant records from a service department must 
be considered without regard to finality. As a result, 
finality did not attach to the rating decision in June 2000, 
and the claim has been recharacterized to reflect the change 
in the procedural status of the claim.  

The claims are REMANDED to the RO via the Appeals Management 
Center in Washington, DC.  

REMAND

On the claim of service connection for headaches, the 
Veteran was afforded a VA examination in May 2007, but the 
VA examiner did not render an opinion on a causal 
relationship or nexus between the postservice headaches and 
a disease or injury or event in service.  In October 2009, 
in response to the RO's request for a nexus opinion, a 
second VA physician expressed the opinion that the Veteran's 
headaches were not related to the head trauma in service.  
As the evidence of record is insufficient to decide the 
other applicable theories of service connection raised by 
the Veteran and reasonably raised by the record, additional 
development under the duty to assist is needed. 

On the claims for increase for posttraumatic stress 
disorder, a left knee disability, and tinea pedis, in 
February 2012, the Veteran testified that the disabilities 
were worse than when he was last examined by VA in 2007 and 
in 2009.  As the Veteran's testimony suggests a material 
change in the disabilities, reexamination under 38 C.F.R. § 
3.327 is warranted. 

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination to 
determine:

a).  Whether the Veteran has headaches, 
and, if so, 

b).  Whether the current headaches are 
attributable to a known clinical 
diagnosis, if so, whether it is more 
likely than not (probability than 50 
percent), at least as likely as not 
(probability of 50 percent), or less 
likely than not (probability less than 
50 percent) that the current headaches 
are related to headaches in service or 
a manifestation of service-connected 
posttraumatic stress disorder or the 
development of new and separate 
headaches after service?  



In formulating an opinion, the VA 
examiner is asked to consider the 
following facts: 

The service treatment records show 
that headaches were noted in 
November 1985, which were 
associated with sinusitis; in 
December 1986, the Veteran had 
headaches from a mild concussion 
sustained in a vehicle accident; 
in December 1990, headaches were 
associated with gastritis.  On 
examination in May 1991 and on 
separation examination, the 
Veteran denied frequent or severe 
headache. 

After service, VA records in July 
1999 show that the Veteran 
complained of headaches, which 
were assessed as probable 
migraine. 
On VA examination in November 
1999, the diagnosis was tension 
headaches.  History included 
headaches for a "couple of years."  
In May 2001, the Veteran 
complained of headaches over the 
last year, which were assessed as 
probably from sinus pressure.  

In August 2006, the Veteran gave a 
long standing history of 
headaches.  Other than tension 
headaches the workup was 
unremarkable.  On VA examination 
in May 2007, the Veteran 
complained of headaches starting 
in 1991.  The diagnoses were 
tension-type headaches and likely 
migraine-related headaches.  

In January 2009, headaches were 
associated stress anxiety.   In 
October 2009, a VA physician found 
no medical evidence of a 
relationship between head trauma 
and migraine. 

c).  If the headaches cannot be 
attributed to a known clinical 
diagnosis, is it more likely than not 
(probability than 50 percent), at least 
as likely as not (probability of 50 
percent), or less likely than not 
(probability less than 50 percent) that 
the current headaches qualify as an 
undiagnosed illness as the Veteran was 
in the Persian Gulf in 1991?  

The Veteran's file must be reviewed by 
the VA examiner. 

2.  Afford the Veteran a VA examination 
to determine the current level of 
occupational and social impairment due 
to posttraumatic stress disorder.  

The Veteran's file must be made 
available to the examiner for review.

3.  Afford the Veteran a VA examination 
to determine the current severity of 
the left knee disability.  

The VA examiner is asked to describe: 

a).  The range of flexion and extension 
in degrees and whether there is any 
other functional loss due to pain, 
weakened movement, excess fatigability, 
and incoordination, or with repetitive 
use or flare-ups.  



If feasible, any additional functional 
loss should be expressed terms of loss 
of flexion or extension. 

b).  Any recurrent subluxation or 
lateral instability.  

c).  Whether there is evidence of a 
dislocated semilunar cartilage other 
than a lateral meniscus with frequent 
episodes of locking, pain, and effusion 
into the joint or symptoms of a 
meniscectomy. 

d).  Whether the lateral meniscectomy 
is symptomatic and, if so, whether the 
symptoms are encompassed in limitation 
of motion or instability or both. 

The Veteran's file must be made 
available to the VA examiner.  

4.  Afford the Veteran a VA examination 
to determine the current severity of 
the service-connected tinea pedis. 

The VA examiner is asked to determine: 

a).  The percentage of involvement of 
the entire body.

b).  Whether the Veteran required 
intermittent systemic therapy such as 
corticosteroids, or other 
immunosuppressive drugs and the total 
duration of time needed for the therapy 
during a 12-month period.  The 
Veteran's file must be made available 
to the VA examiner.   





5. After the above development 
adjudicate the claim of service 
connection for headaches, applying 
38 C.F.R. §§ 3.303, 3.310, and 3.317, 
and the claims for increase for PTSD, a 
left knee disability, and tinea pedis.  
If any benefit sought is denied, 
furnish the Veteran and a his 
representative a supplemental statement 
of the case and return the case to the 
Board

The Veteran has the right to submit additional evidence and 
argument on the claims the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

The 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.  
38 U.S.C.A. §§ 5109B, 7112.



_________________________________________________
George E. Guido Jr.
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).