Citation Nr: 1337801 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-27 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of a head injury, to include a headache disorder and traumatic brain injury. REPRESENTATION Appellant represented by: Carolyn J. Kerr, Agent ATTORNEY FOR THE BOARD Sarah VanderWood, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1984 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board finds that the issue of entitlement to service connection for traumatic brain injury, status post motor vehicle accident is inextricably intertwined with the issue of entitlement to service connection for a headache disorder, status post motor vehicle accident. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). This appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran contends that service connection is warranted for a headache disorder, to include posttraumatic headaches, because his current headache disorder relates to a head injury due to a motor vehicle accident he experienced while in service. At a VA examination in October 2010, the Veteran reported having headaches since his 1984 motor vehicle accident while in service. He indicated that from 1984 to 1993, the headaches were manageable with Tylenol, but they had progressively worsened since then, with increased pain and duration. The Veteran reported that he went to an emergency room for headaches in 2004, but had not seen a doctor since then due to a lack of health insurance. In May 2010, he was hit on the head with a bottle that required stitches at a hospital. The October 2010 VA examiner diagnosed a closed head injury, status post the 1984 motor vehicle accident "with at least as likely as not mild-moderate traumatic brain injury" and "mild to moderate post traumatic tension headaches by history (no medical documentation of post service headaches in the c. file) with associated light sensitivity during headaches." The examiner then opined that because there were no civilian medical records pertaining to headaches in the immediate years after the Veteran left active service, the present headaches "are likely to be independent and less likely related to" the in-service motor vehicle accident injury. The October 2010 VA examiner's opinion is inadequate because the opinion did not consider the Veteran's lay statements regarding the continuity of his headaches after service. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (finding Veteran's testimony competent evidence as to symptomatology capable of lay observation). Instead, the examiner's opinion was based only on the lack of post-service medical evidence. Importantly, the examiner diagnosed closed head injury, status post the 1984 motor vehicle accident, with mild to moderate traumatic brain injury. Additionally, the 2010 VA examination report revealed the Veteran's statements as to relevant private medical records in 2004 and 2010. When VA is put on notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). VA has a statutory duty to assist the veteran in obtaining civilian records. Murphy v. Derwinski, 1 Vet. App. 78 (1990). These records, as well as any other pertinent civilian records, should be obtained and considered by the RO prior to appellate review. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources, to include emergency room treatment records from 2004 and 2010 records from the Henry Ford Health System Fairlane Center. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If, after making reasonable efforts to obtain named records, the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform him that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO then must obtain an addendum opinion from the October 2010 VA examiner. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. Based on a review of the evidence of record, and with consideration of the Veteran's statements of continuous headaches since the motor vehicle accident, the examiner must state whether the previously diagnosed posttraumatic tension headaches are related to the Veteran's active duty service, to include as due to the motor vehicle accident in service. The examiner must also provide an opinion as to whether the previously diagnosed headache disorder is a residual or symptom of the previously diagnosed status post motor vehicle accident traumatic brain injury. If the October 2010 VA examiner deems that another examination is necessary to provide the opinions, one must be conducted. If the October 2010 VA examiner is not available or unable to provide the required opinions, another examination must be conducted, and the new examiner must provide the required opinions. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. If another examination is scheduled, the RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim of entitlement to service connection for residuals of a head injury, to include a headache disorder and traumatic brain injury, must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).