Citation Nr: 1341191 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 08-21 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for migraine headaches, to include as aggravated during service. 2. Entitlement to service connection for residuals of a fracture of a finger. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active duty for training (ADT) from October 1986 to March 1987, active service from July 1987 to January 1990, and active service from May 2005 to July 2006. The claims file now also reveals that the Veteran was ordered to return to active duty in February 2010. The record suggests that the period of active duty ended in September 2010. During reserve component service, she had numerous periods of verified and unverified ADT and inactive duty for training (IADT). This matter initially case before the Board of Veterans' Appeals (Board or BVA) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The appeal was Remanded in November 2011. During the pendency of the Remand, jurisdiction of the claims files was transferred to the Wichita, Kansas RO. The claim for service connection for a fracture of a finger has been interpreted as a claim for service connection for a fracture of a finger on the right hand. The Veteran was awarded service connection for a fracture of the right middle finger incurred in 2006. The Veteran stated, in a June 2007 communication, that the finger injury incurred in 2006 was different than a 1988 finger injury, without specifically referencing which finger was fractured in 1988. Under the circumstances of this case, the Veteran's appeal is more accurately stated as listed on the title page of this decision. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran failed to report for a scheduled Board hearing in March 2011. The requested Travel Board hearing was rescheduled in June 2012. The Veteran did not appear. She did not request that the hearing be rescheduled. Her request for a hearing before the Board is considered withdrawn. 38 C.F.R. § 20.702(d) (2013). FINDING OF FACT In September 1988, during a period of active service, the Veteran sustained a fracture of the left third digit (left middle finger). CONCLUSION OF LAW The criteria for service connection for residuals of a fracture of the left third digit (middle finger) are met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In her August 2008 claim, the Veteran sought service connection for numbness and tingling of the right arm, 4th and 5th digits, and for a right 2nd digit volar plate fracture. Service connection has been established for a right 3rd digit fracture, and was awarded service connection for C5-6 radiculopathy, right upper extremity, claimed as numbness and tingling of the right arm and 4th and 5th digits, right hand. The Veteran continues to assert that she is entitled to service connection for an additional finger injury incurred in 1988. Service treatment records show that the Veteran was treated for a fracture, volar plate, right 3rd digit (middle finger) in July 2006. Service connection has been granted for a right 3rd finger volar plate fracture, by a September 2009 rating decision. At her 2006 VA examination, the Veteran told the examiner that she fractured her right middle finger (right 3rd digit or RMF) and her left middle finger (left 3rd digits or LMF) while in service. Similarly, in a June 2007 statement, the Veteran indicated that she sustained a fracture of a finger in 1988 as well as in July 2006. She did not identify the fingers that were fractured in either instance. Reading the Veteran's statements together, it appears that her claims for service connection encompassed a claim for service connection for the residuals of a right middle finger fracture of the volar plate incurred in 2006 and the residuals of a left middle finger fracture incurred in 1988. The service treatment records and post-service records show no objective or subjective complaints regarding the right 2nd finger. However, service treatment records dated in September 1988 and October 1988 reflect that a fracture, left proximal interphalangeal joint, LMF (left 3rd digit) was identified on radiologic examination. While she states that the left finger has been relatively asymptomatic, there is no logical basis to believe that there isn't some radiologic evidence showing the presence of an old fracture. The Veteran is entitled to service connection for the residuals of a fracture, left proximal interphalangeal joint, left 3rd digit, as that fracture was incurred during a period of active service. This decision grants service connection for the residuals of a fracture of the left 3rd digit (left middle finger) incurred in October 1988. The Veteran's claim has been favorably resolved, so discussion of VA's duties to notify and assist a claimant is not required. ORDER The appeal for service connection for residuals of a fracture of the left 3rd digit (left middle finger) is granted; the appeal is granted to that extent only. (CONTINUED NEXT PAGE) REMAND During the pendency of this claim, the Veteran was ordered to another period of active service, in 2010. Records of the Veteran's 2010 period of service should be sought. VA examination as to the onset, frequency, and severity of migraine headaches was conducted in 2006, more than seven years ago. The Veteran should be afforded another VA examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined contemporaneous examination required because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The Veteran's clinical records and the VA examination indicate that the Veteran may be taking medications for migraine headaches. Current VA and private records, and pharmacy records, as well as any service treatment records, should be obtained during the course of this Remand. The Veteran has served three periods of active service, with those periods beginning in 1987, 2005, and 2010. In its 2007 rating decision, the RO determined that migraines headaches pre-existed the Veteran's 2005 entry into active service. However, the RO did not discuss whether the diagnosis of migraine headache was noted at the time of the Veteran's entry into active service in 1987, or was incurred or aggravated during that period of service. If the diagnosis of migraine headaches was not noted at the time of the Veteran's first entry into service (in 1987), then the RO should review the evidence in light of the burden of proof as set forth in 38 U.S.C.A. § 1153 and interpreted in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect, and the burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service). The RO should obtain medical opinion as required to address the burden of proof. Additionally, the Board notes that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ADT or IADT. Smith v. Shinseki, 24 Vet. App. 40 (2010). If a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but may bring a claim for service-connected aggravation of that disability. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the Veteran does not contend that the presumption of soundness applies in her case, but rather contends only that a service-connected disability, cervical disability, permanently aggravates her migraine headaches, medical opinion must be obtained to address that contention, if service connection is not granted on a direct basis. Accordingly, the case is REMANDED for the following action: 1. The Veteran's service treatment records from a period of active service in 2010 should be sought. Ask the Veteran whether she is still enlisted in a reserve component so that the appropriate location from which the records should be sought can be determined. Make another attempt to obtain records from the Veteran's period of ADT (active duty for training) from October 1986 to March 1987 and any available service treatment records and reserve component records. 2. Ask the Veteran to identify where she has received treatment for migraine headaches since her 2010 period of active service. She should be asked to identify pharmacies at which she receives medications for migraine headaches, and the lists of medications and refills should be obtained. 3. The Veteran's current VA treatment records since September 2009 should be associated with the claims files or electronic files, including pharmacy records showing medications prescribed and refilled. 4. Then, the Veteran should be afforded VA examination as to determine the nature and etiology of her headache disorder. The examiner should be asked to review the Veteran's service treatment records, including any available records of the period of ADT from October 1986 to March 1987, active service in 2010, and reserve records. Following this review and any examination deemed warranted, the examiner should address the following: a. Was a diagnosis of migraine headaches or a headache disorder noted at the time of the Veteran's entry into service in July 1987, May 2005, or 2010? b. If the answer to (a) is in the negative with respect to each period of service, is there clear and unmistakable evidence that a migraine or headache disorder undebatably pre-existed that period of active service? Describe the clear and unmistakable evidence that establishes that the Veteran had a migraine disorder prior to service. c. If there is clear and unmistakable evidence that a headache disorder preexisted a period of active duty, describe the clear and unmistakable evidence that the pre-existing migraine disorder was not permanently worsened by service. d. If the answer to (a) and (b) are negative, is it as least likely as not that the Veteran's current headache disorder had its onset during a period of active duty or is otherwise etiologically related thereto. e. Is it at least as likely as not (a 50 percent, or greater, likelihood) that the Veteran's migraine or headache disorder was caused by a service connected disability? f. Is it at least as likely as not (a 50 percent, or greater, likelihood) that the Veteran's migraine or headache disorder is aggravated by a service-connected disability? Please address the Veteran's contention that the chronic pain related to her service connected cervical spine disorder exacerbates her headache disorder. The Veteran's claims folder must be made available to and reviewed by the examiner and the examiner should acknowledge such review. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. If any benefit sought on appeal is not granted, a supplemental statement of the case should be issued. The case should be returned to the Board, if otherwise in order. 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. 2012). ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs