Citation Nr: 1436734 Decision Date: 08/15/14 Archive Date: 08/20/14 DOCKET NO. 09-45 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. de Jong, Associate Counsel INTRODUCTION The Veteran (appellant) served on active duty from October 1979 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the RO in Jackson, Mississippi. Jurisdiction was subsequently transferred to the RO in Montgomery, Alabama. In a September 2012 decision, the Board dismissed the instant appeal. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2014 memorandum decision, the Court vacated the September 2012 decision, and remanded the appeal to the Board for further action. In November 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. Evidence has been received subsequent to the final consideration of the claim by the RO. The Veteran has waived RO consideration of that evidence. The Board may consider the appeal. 38 C.F.R. § 20.1304 (2013). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" and VBMS systems to insure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The claim of entitlement to service connection for headaches must be remanded for further development. The Court, in its February 2014 memorandum decision, stated that the Board had failed to provide an adequate statement of reasons or bases for dismissing the Veteran's claim where it found that her headache symptoms were incorporated into her maxillary sinusitis rating without discussing whether there was medical evidence addressing all of her symptoms. The Court decided remand was required for the Board to determine whether a medical examination was necessary to adjudicate the Veteran's service connection claim for headaches. For the reasons that follow, the Board has determined a medical examination is required. As the claim is being remanded for an examination, any outstanding relevant treatment records should also be obtained. A medical examination or opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient competent medical evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). In this case, the medical evidence of record reflects the Veteran's current and frequent complaints of headaches, which she has characterized as migraines. The Veteran's service treatment records show an assessment of recurrent transient headaches with visual disturbance, separate and apart from her sinus-related symptoms. At her November 2011 Board hearing, the Veteran testified that she experienced headaches in service and sometimes could not work as a result of her headaches. The Court's February 2014 memorandum decision indicates that further evidentiary development is needed because it is unclear from the medical evidence of record whether the Veteran's current headache symptoms include migraines symptoms that are separate from the sinus-related headaches already considered within the symptomatology of her service-connected maxillary sinusitis. Therefore, in this case there is evidence of a current disability, evidence establishing in-service migraine headache symptoms and treatment, and an indication that the two may be related. At present, however, there is insufficient competent medical evidence to determine whether service connection for migraine headaches, separate from the sinus headaches considered as part of the Veteran's service-connected maxillary sinusitis, is warranted. Thus the Board finds a VA examination is required. See id. Accordingly, the case is REMANDED for the following action: 1. First, contact the Veteran to determine whether there are any outstanding VA or private treatment records relevant to her service connection claim for headaches. Upon receipt of the requested information and any additional waivers, if necessary, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) and a formal finding of unavailability of such records should be placed in the claims file. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of her current headaches, to include whether she suffers from migraine headaches separate from her sinus headaches. The examiner should review the contents of the entire claims files, and obtain relevant history from the Veteran. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner should express an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current headaches are causally related to her migraine headache symptoms in service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After completion of the above and any other development deemed necessary, the RO should readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and her representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned 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). [Continued on Next Page] 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). _________________________________________________ JONATHAN B. KRAMER 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).