Citation Nr: 1337047 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 12-05 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for headaches, claimed as a residual of traumatic brain injury (TBI), and to include as secondary to cervical strain with muscle spasm. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1984 to January 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This decision denied service connection for TBI with headaches. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The issues of entitlement to service connection for memory loss, concentration disorder, and attention deficit hyperactivity disorder (ADHD) have been raised by the record but have not yet been addressed. They are referred to the agency of original jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for headaches, which he claims are secondary to a traumatic brain injury sustained in service. In this regard, the Veteran was provided a VA examination in January 2011, wherein the examiner concluded that it was unlikely that the Veteran's headaches were related to a head injury in service. The Board is concerned, however, there is evidence of record raising the issue of entitlement to service connection for headaches as secondary to the Veteran's service-connected cervical strain with muscle spasm. Specifically, a November 1999 clinical chiropractic references daily headaches immediately after listing various neck complaints. A May 2000 record includes a complaint of migraine headache, but also neck pain with headaches including sharp pain down the right side of the neck with left rotation. A January 2002 chiropractic record noted that the Veteran claimed he was having neck pain and headaches. Given these records, the Board finds that further VA examination is necessary to clarify whether the relationship, if any, between his headaches and his service-connected cervical strain. VA's duty to notify under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA), includes informing the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. On remand, adequate notice must be provided on how to substantiate a claim of entitlement to service connection on a secondary basis. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with VCAA notice on the issue of entitlement to service connection for headaches are on a secondary basis. 2. Schedule the Veteran for a VA medical examination to determine the nature and etiology of his headaches. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims file was reviewed. All indicated studies should be performed, and all findings should be reported in detail. To the extent possible, the examiner should clarify the nature and diagnosis of any current headache disorder. In particular, the examiner must determine whether any current headache disorder is distinct from the service-connected cervical strain, or whether it is part and parcel of his cervical spine disability. If any headache disorder is identified that is separate and distinct from the cervical spine disorder, the examiner should also provide an opinion as to whether there is a 50 percent or greater probability that any such headache disorder is related to service, or caused or aggravated by any other service-connected disorder, to include the cervical spine disability. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App 382 (2010). 3. Thereafter, readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38U.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. 38C.F.R. §20.1100(b) (2013).