Citation Nr: 1330005 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-06 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to August 1991, October 2001 to March 2002, and January 2003 to March 2004, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran filed a notice of disagreement (NOD) with this determination in April 2009, and timely perfected his appeal in February 2010. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in June 2013. A written transcript of that hearing was prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As a preliminary matter, the Board notes that the Veteran's military service records, including his service treatment records (STRs), are not available for consideration. The Veteran's Florida National Guard records were obtained. Multiple requests for information and a February 2008 Formal Finding of Unavailability confirm that all procedures to locate the Veteran's service treatment records were followed, but unfortunately to no avail. The Board finds that additional attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2) and (3). When, as here, these service records are lost or missing, through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist him in developing his claim, and to explain the reasons and bases for the decision. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran's National Guard records document complaints of headaches. On a June 1997 Report of Medical History, the Veteran noted that he had frequent or severe headaches. The examiner noted that the Veteran was being treated by a physician in Orlando. His headaches were thought to be due to allergies. On the Post-Deployment Assessment for the Veteran's service in Iraq from December 2003 to April 2004 filled out in November 2006, the Veteran reported that he had headaches. Florida National Guard treatment records show that in December 2006, the Veteran complained of sharp pain on the right side of the head. He had been experiencing these episodes for six months. The physician noted that the identified problem was headaches. The Veteran testified to the onset of his headaches at a June 2013 hearing. The Veteran reported that he first had headaches after his first period of active service in the Gulf War in 1991. The Veteran reported that he saw someone for his headaches while on active duty. He stated that he treated his headaches with Motrin after discharge. He was eligible to receive VA treatment after his second period of active service in the Gulf War and was prescribed medication for his headaches. The Veteran reported that his MOS was infantry and mortar man, where he was exposed to gun battle. The Veteran reported exposure to environmental hazards when providing security at burning oil fields in his first period of active duty in the Gulf War and to burning port-a-johns in his second period of active duty in the Gulf War. The Veteran's representative noted that the Veteran had already been service-connected for loss of taste and smell. The Veteran reported when he got back from Iraq at the post-deployment physical, he reported blurred vision and migraines. He noted that he did not suffer from headaches prior to his deployment. His headaches started after his first deployment and got progressively worse thereafter. VA treatment records show that the Veteran complained of and was treated for headaches. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2012). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The VA has neither afforded the Veteran an examination nor solicited a medical opinion as to the etiology of the Veteran's headaches. Although the Veteran has been seeking treatment from the VA for this condition, it remains unclear to the Board whether the Veteran's headaches had its onset in service or is related to any aspect of his military service, to include exposure to environmental hazards such as burning oil fields and port-a-johns, and/or mortar fire. A medical opinion regarding an etiology of the Veteran's headaches is therefore necessary to make a determination in this case. See 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1) Ensure that the Veteran's VA outpatient treatment records are up to date. The Veteran should also be offered the opportunity to submit any private or service treatment records in support of his claim. 2) After the foregoing, schedule the Veteran for a VA examination to determine whether his headaches are related to his service. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary studies should be performed, and all findings should be reported in detail. The VA examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's headaches had their onset in service or are causally related to military service, to include exposure to environmental hazards such as burning oil fields and port-a-johns, and/or mortar fire during his active service. In rendering the opinion, the examiner should acknowledge and discuss the Veteran's National Guard records, VA treatment records, hearing testimony, and any additional relevant information. Furthermore, the examiner should discuss the Veteran's lay statements regarding the onset and duration of symptoms when discussing the offered opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutschisousky 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). _________________________________________________ WAYNE M. BRAEUER 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).