Citation Nr: 1339032 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 08-24 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a headache disorder (claimed as migraine headaches), to include as due to an undiagnosed illness and/or secondary to the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to May 1978 and from September 1990 to April 1991. The Veteran served in the Massachusetts Army National Guard from 1986 to 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran presented testimony before the Board in September 2012. The transcript has been obtained. The matter was previously before the Board in November 2012 and remanded for further development and adjudication. The claim for diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT Migraine headaches were incurred during the Veteran's active military service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for service connection for migraine headaches have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that he began suffering from migraine headaches while stationed in Saudi Arabia. Specifically, he asserts they were the result of the desert sun and heat and/or environmental exposures. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Veteran's DD-214 establishes that he was ordered to active duty in support of Operation Desert Shield/Desert Storm. He was stationed in South West Asia from November 1990 to April 1991. Thus, the Board finds the circumstances of the Veteran's service are consistent with allegations of desert sun and heat exposure. 38 U.S.C.A. § 1154(a). Moreover, service treatment records confirm the Veteran was admitted to Walter Reed Army Medical Center in April 1991 for migraine headaches. The provider noted the Veteran developed severe headaches while in Saudi Arabia due to intense desert sun and heat. The injury was found to be incurred in the line of duty. The Veteran testified that he continues to suffer from migraine headaches since his discharge from service. BVA Transcript at 7. He further testified that they remained constant over the years occurring once or twice a week. Id. VA outpatient treatment records contain treatment for migraine headaches beginning as early as 2004. The Veteran informed the November 2004 VA examiner that he developed headaches while in service. They were said to be accompanied by pain over his eye and light sensitivity. He indicated that had been occurring since service approximately two times per week and could last all day. Hence, the evidence of record establishes continuous complaints of headache since service. The Board is aware that the July 2013 VA examiner opined migraine headaches were not related to service. However, the examiner reasoned that he could not find any reference to chronic headaches in the claims folder, a 2001 examination did not mention any headaches and there was no record of the Veteran being evacuated due to headaches in 1991. The Board finds that the probative value of the negative VA opinion diminishes in light of the cumulative evidence of record, i.e. the Veteran's credible assertions that he developed headaches in service, which is supported by his service treatment records and his credible testimony and statements to medical providers that he has had headaches since service. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the credibility and weight to the attached medical opinions are within the province of the Board). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). As desert sun and heat exposure is conceded based on the Veteran's duty assignment in Saudi Arabia, service treatment records confirm complaints of headaches, and there is credible evidence of continuous headaches since service, the Board finds that the evidence is at least in equipoise in showing that the Veteran's migraine headaches are related to events of his active service. Resolving any doubt in the Veteran's favor, service connection for migraine headaches is warranted. 38 C.F.R. § 3.102. ORDER Service connection for migraine headaches is granted. REMAND The Veteran additionally claims entitlement to service connection for diabetes mellitus. A preliminary review of the record discloses the matter is not ready for appellate disposition. The record compiled for appellate review of this matter to this point appears incomplete. The Veteran's service treatment records contain a letter from the Veteran's private medical provider (DNK, a physician assistant), showing that diabetes mellitus was diagnosed in 1996. The underlying medical records from DNK, PA, have not been associated with the claims folder. Such must be obtained upon Remand. 38 C.F.R. § 3.159(c)(1). Army National Guard Retirement Points History Statement reveals the Veteran had 15 days active duty between November 1995 and November 1996. The exact dates of active duty training (ADT) have not been confirmed. In light of the diagnosis of diabetes mellitus in 1996, it is necessary to determine the exact dates of the Veteran's ADT and inactive duty training (IDT) in 1996 as the benefits available to the Veteran and the burden of proof is dependent on such information. The Veteran contends that he was exposed to herbicides (Agent Orange) while in Canada in approximately 1984. Notably, he claims such exposure while at the Canadian Forces Base (CFB) in Gagetown, New Brunswick, during annual training. See statement dated in September 2012. The Veteran's service in Canada has not been confirmed by the available service personnel records. Attempts to verify such service must be completed upon Remand. 38 C.F.R. § 3.159. The claim for diabetes mellitus must also be remanded for verification of herbicide use at CFB. In support of his claim, the Veteran submitted articles showing Agent Orange was tested at CFB with the cooperation of the U. S. military between 1952 and the present. Upon Remand, a formal request should be made to the United States Army and Joint Services Records Research Center (JSRRC) to assist in verifying the reported in-service herbicide exposure. 38 U.S.C.A. § 5103A (b) (West 2002); 38 C.F.R. § 3.159(c) (2013). In light of the missing records, an addendum opinion is necessary to determine whether there is any current diabetes mellitus related to active military service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. §§ 3.159(c)(4), 4.1. Moreover, the March 2013 VA examination itself is inadequate as it failed to render an opinion as to whether diabetes mellitus was related to the Veteran's other periods of service, not simply 1996 when the examiner found the Veteran was "not on AD service." The examiner also failed to address whether diabetes mellitus was aggravated during a period of ADT. The examiner is asked to answer the specific questions set forth in the numbered paragraphs below. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he complete and return the appropriate release forms so that VA can obtain any evidence of treatment for his diabetes mellitus from DNK, PA. The RO should attempt to obtain copies of all pertinent outstanding records, especially those dated in 1996. All identified private treatment records should be requested directly from the healthcare providers. At least one follow-up request must be made if a response is not received to the initial request for records. 2. Contact the appropriate record depository, including but not limited to the National Personnel Records Center, Records Management Center, and the Massachusetts State Adjutant's General's office, and request verification of the (a) the exact dates of the Veteran's ADT and IDT in 1996 and (b) his service in Canada, to include ADT, if any. All requests for records and their responses must be associated with the claims folder. 3. Contact the Veteran and request that he itemize and provide specific information regarding herbicide exposure in Canada. He should be asked to identify specific dates (within a 60 day period), locations and units to which was assigned. 4. With any additional information provided by the Veteran, and with the evidence already of record, the AMC/RO must prepare a summary of the Veteran's alleged in-service exposure. This summary must be prepared regardless of whether the Veteran provides an additional statement, as requested above. This summary and a copy of the Veteran's service personnel records should be sent to the JSRRC with a request for any verifying evidence of herbicide use/exposure at CFB in Gagetown, New Brunswick. 5. After completion of the foregoing, an addendum opinion must be sought from the examiner who performed the July 2013 VA examination, if available. Otherwise, the opinion must be sought from a similarly qualified provider. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, Veterans Benefits Management System (VBMS), CAPRI, and AMIE) must be available for review by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records in Virtual VA or VBMS that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The RO must provide the exact dates of ADT and IDT in 1996 to the examiner. The RO must inform the examiner whether service in Canada and exposure to herbicides has been confirmed. Thereafter, the examiner should offer an opinion in response to the following: is it at least as likely as not (a 50% or higher degree of probability) that diabetes mellitus is related to the Veteran's active military service or a period of ADT? The examiner should additionally offer an opinion whether it is at least as likely as not (a 50% or higher degree of probability) that diabetes mellitus was aggravated during a period of active duty or ADT beyond the natural progression of the disease? Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 6. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record, to include any pertinent evidence contained in the Veteran's virtual record. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. 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. 2012). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs