Citation Nr: 1332836 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 06-03 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for chronic headaches, other than due to head trauma. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969, to include service in Vietnam. By its September 2011 decision, the Board of Veterans' Appeals (Board) denied entitlement of the Veteran to service connection for chronic headaches and determined, as well, that new and material evidence had not been received to reopen a previously denied claim for service connection for a skin disorder. An appeal followed to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal thereafter jointly moved the Court to vacate and remand the issue of service connection for headaches. The parties stipulated that the Board's denial of the claim to reopen for service connection for a skin disorder should not be disturbed. The Court by its May 2012 order granted the parties' motion as to the claim for service connection for headaches and dismissed the appeal as to the claim to reopen for a skin disorder. In April 2013, following a return of the case to the Board, remand of this matter to the VA's Appeals Management Center (AMC) in Washington, DC, was undertaken so that additional developed could be completed. Following the AMC's attempts to complete the requested actions, this case was returned to the Board for further review. This appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required on his part. REMAND By its April 2013 remand, the Board directed the AMC to clarify whether for rating purposes the Veteran's service-connected residuals of a head injury, ratable on the basis of traumatic brain injury, encompassed his headaches, and if so, then the Veteran was to be contacted to ascertain whether he wished to continue his appeal for service connection for headaches, separate and apart from his inservice head trauma. On remand, the AMC wrote to the Veteran in May 2013 and advised him that the 40 percent evaluation he was previously granted for traumatic brain injury included his headaches. As well, the AMC requested that the Veteran advise AMC personnel as to whether he wished to continue his appeal for a separate evaluation for headaches. No response was thereafter received from the Veteran as to that question. In the absence of a reply, the AMC concluded that the Veteran desired to continue his appeal for service connection for headaches other than as due to head trauma. The AMC then requested that a medical examination be conducted. The request therefor directed the VA examiner to address three of the four indented or action paragraphs of the Board's April 2013 remand, erroneously including clarification of whether for rating purposes the residuals of a head injury included headaches and ascertaining whether the Veteran wished to continue the instant appeal. The record further reflects that two VA disability benefits questionnaires were completed in April 2013 by a VA medical professional relating to an initial evaluation of the residuals of traumatic brain injury and for headaches, following an in-person examination of the Veteran. The VA examiner noted that the Veteran's subjective complaints of headaches were a part of his traumatic brain injury in service, while also noting that it was highly unlikely that the Veteran's report of chronic headaches was the result of his likely concussion history. Also set forth was the opinion that the Veteran's current symptoms were more likely due to mental health issues. Given that the AMC has previously concluded that the Veteran's subjective complaints of headaches are residuals of inservice head trauma, ratable as traumatic brain injury, the remaining questions are whether any other, separate headache disorder is present and whether any such disorder bears a reasonable relationship to military service. These were the medical questions identified by the Board in its April 2013 remand and which remain unanswered, inasmuch as the VA examinations in August 2013 did not fully address the principal issues presented by this appeal. Remand for corrective actions is therefore necessary. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, this case is REMANDED for the following actions: 1. Obtain any pertinent reports of VA medical treatment, not already on file, for inclusion in the Veteran's VA claims folder. 2. Return the reports of VA medical opinions, dated August 2, 2013, to permit the reviewing VA medical professional or his designee to undertake a further review of the claims folder, prior to the preparation of an addendum to the earlier reports. That addendum should address specifically the questions of whether any disorder involving headaches, other than the subjective complaints of headaches associated with and previously conceded by VA as related to inservice head trauma and rated on the basis of traumatic brain injury, is currently in existence and, if so, whether it bears a relationship to military service of the Veteran. The Veteran's VA claims file must be furnished to the VA reviewer for use in the study of this case and the author of the addendum should indicate whether the claims folder was provided and reviewed. Following a review of the claims folder, the reviewing VA medical professional is asked to address the following questions, providing a complete rationale with citation to the record for the medical opinion furnished: a) Does the Veteran now suffer from headaches or any headache disorder other than that related to or the result of inservice head trauma? b) If so, is it at least as likely as not (50 percent or more probability) that any such headaches or headache disorder originated in military service or are otherwise reasonably attributable to that service? The VA examiner/reviewer is advised that the Veteran's complaints of headaches in service and after service, as reflected in the record, are to be considered by him/her in rendering the requested opinions as to service onset and nexus to service. He is further informed that service connection for a head injury has already been established and rated on the basis of traumatic brain injury, inclusive of subjective complaints of headaches. Use by the VA examiner/reviewer of the at least as likely as not language in responding is required. He is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus or service incurrence as to find against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. 3. Thereafter, readjudicate the issue on appeal and if the benefit sought is not granted, provide the Veteran with a supplemental statement of the case and permit him a reasonable period for a response, before returning the case to the Board for further review. The appellant has 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). 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. 2013). _________________________________________________ ROBERT E. SULLIVAN 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) (2013).