Citation Nr: 1540054 Decision Date: 09/17/15 Archive Date: 10/02/15 DOCKET NO. 09-21 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for migraine headaches, to include as secondary to service-connected allergic rhino-sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from February 1996 to February 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2013, the Veteran appeared before the undersigned and gave testimony in support of his claim. A complete transcript is of record. In June 2013, the Board remanded this claim for additional development. In December 2013, the Board found that the development ordered in the June 2013 remand order had not been substantially completed and again remanded this claim. Based on a review of the evidence, as discussed below, all development requested in the December 2013 remand order has not been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Reason for Remand: To obtain an addendum etiology opinion. In June 2013, the Board remanded this matter for an opinion addressing whether the Veteran's service-connected allergic rhino-sinusitis aggravated his migraine disorder. The August 2013 VA examiner explained why the allergic rhino-sinusitis did not cause the migraine disorder but did not provide rationale as to whether the service-connected allergic rhino-sinusitis aggravated, or permanently worsened the migraine condition beyond the normal progression of the disorder. Thus, the Board remanded this matter in December 2013 for an addendum opinion. An addendum opinion was obtained in May 2014. The VA examiner explained that migraines can be triggered by many factors, and she listed several examples. She then described the type of sinus pressure that accompanies allergic rhino-sinusitis and indicated that the medical literature fails to associate allergic rhino-sinusitis to migraine headache. Unfortunately, while the examiner differentiated between the types of head pain and symptoms for each diagnosis, she did not clearly address aggravation. In light of the examiner's assertion that migraines can be triggered by many different factors, it is not clear whether the symptoms or episodes of allergic rhinosinusitis could worsen the migraine disorder beyond the normal progression of the disorder. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the electronic claims file updated VA treatment records and any additional private treatment records identified by the Veteran. 2. Ask the May 2014 VA examiner to provide an addendum opinion. The electronic claims file on Virtual VA and VBMS must be made available to the clinician for review. If the May 2014 examiner is not available, refer the file to another qualified clinician for the addendum opinion. The examiner must offer an opinion with complete rationale as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches are aggravated (permanently worsened beyond the normal progression of the disorder) by his service-connected allergic rhino-sinusitis. The examiner should discuss the May 2014 addendum opinion asserting that migraines can be triggered by many factors. If possible, the examiner should specifically address whether the service-connected allergic rhino-sinusitis can trigger migraines or cause migraines to be worse than normal, and if so, whether this at least as likely as not constitutes a permanent worsening of the migraine disorder. In rendering this opinion, the examiner should note that temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute "aggravation" unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). 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. 3. If the claim regarding service connection for migraine headaches remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).