Citation Nr: 1612095 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 07-10 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for migraine headaches, to include as secondary to the service-connected disabilities, to include the medications taken for these disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran, served on active duty from November 1974 to October 1975. The appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 and August 2006 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Fargo, North Dakota, which, in relevant part, denied service connection for migraine headaches, to include on a secondary basis. A Notice of Disagreement (NOD) was received in August 2006, a Statement of the Case (SOC) was issued in February 2007, and a Substantive Appeal was timely received in April 2007. Thus, the Veteran perfected a timely appeal of this issue. The RO in North Little Rock, Arkansas, currently has jurisdiction over this appeal. In May 2009, the Veteran appeared at a hearing before a Veterans Law Judge who has since retired. In August 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge and presented testimony on the migraine issue. Transcripts of the hearings are in the record. A Board decision in November 2009 denied the migraine claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision in May 2011, the Court vacated and remanded the Board's decision as to the migraine claim and remanded the matter for further proceedings consistent with the Court's decision. In November 2011, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Board observes that in an August 2015 rating decision, the RO granted service connection for the following disabilities: a depressive disorder, evaluated at 30 percent disabling; hemorrhoids, evaluated at 20 percent disabling; and expanded the grant of service connection for rheumatoid arthritis to include degenerative features of the lumbar spine, evaluated at 100 percent disabling. The Veteran filed a NOD in September 2015, in which he contested the level compensation assigned for each of these disabilities. Notably, however, the information of record also reflects that the RO duly acknowledged the Veteran's NOD in a November 2015 letter and has proceeded to take initial action in accordance with the provisions of 38 C.F.R. § 19.26(a) (2015). Accordingly, any action by the Board pursuant to the Court's ruling in Manlincon v. West, 12 Vet. App. 238 (1999), would be premature at this time. The Board notes that additional lay and medical evidence was submitted into the record following the most recent readjudication of the migraine issue by the Agency of Original Jurisdiction (AOJ) in the August 2015 Supplemental SOC (SSOC). To date, this evidence has not been reviewed by the AOJ, and a waiver of this review by the Veteran or his representative is not of record. However, as this issue is being remanded for further development, the AOJ will have the opportunity to review this new evidence and readjudicate the claim. Thus, a waiver is not needed at this time. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Migraine Headaches The Board previously remanded this claim in November 2011 for, in pertinent part, a VA examination and medical opinion to be obtained. A VA examination and medical opinion were obtained in January 2012. The January 2012 VA examiner provided a medical opinion concerning secondary service connection, but only addressed the aggravation element of secondary service connection, and not the causation element. The Board specifically asked for both causation and aggravation medical opinions in its November 2011 remand directives. 38 C.F.R. § 3.310 (2015). Additionally, since the Board's remand, the RO in the August 2015 rating decision granted service connection for hemorrhoids and depressive disorder, and the expanded the rheumatoid arthritis service-connected disability to include the lumbar spine. In a September 2015 statement, the Veteran argued that his migraines were secondary to all of these service-connected disabilities, to include the medications he takes for these disabilities. Thus, the Board finds that a VA addendum medical opinion is required to determine the etiology of the Veteran's currently diagnosed migraines. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (explaining that a remand by the Court or Board "confers on the veteran ... as a matter of law, the right to compliance with the remand orders"). Additionally, the most recent treatment records in the claims file from the VA Medical Center (VAMC) in Central Arkansas are dated from June 2012. In a September 2015 statement, the Veteran reported recent VA treatment in January 2015. This VA treatment record is not currently in the claims file. On remand, all pertinent VA treatment records dated since June 2012 should be obtained and added to the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2014); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Accordingly, the case is REMANDED for the following actions: 1. Obtain all VA treatment records from the Central Arkansas VAMC dated since June 2012. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise (preferably the VA examiner who originally examined the Veteran and prepared the January 2012 VA examination report, if that examiner is available) to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to determine the etiology of the migraine headaches that the Veteran now has. The claims file and a copy of this REMAND must be provided to and reviewed by the medical professional assigned in the study of this case. The medical professional should note in the medical report that this action has been accomplished. All tests and studies, as well as the finding contained therein, should be reported in detail. The medical professional is asked to provide an opinion that addresses the following questions: Is it at least as likely as not (50 percent or greater probability) that the migraine headaches that the Veteran now has, are a direct pathological reaction to, or were caused by or the result of, including any medication taken for, either (or all) of the following service-connected disabilities: (1) rheumatoid arthritis with degenerative features of the lumbar spine; (2) depressive disorder, not otherwise specified; (3) right Achilles' tendonitis; (4) peptic ulcer disease; and/or, (5) hemorrhoids? Is it at least as likely as not (50 percent or greater probability) that the migraine headaches that the Veteran now has, permanently progressed at an abnormally high rate due to or the result of, including any medication taken for, either (or all) of the following service-connected disabilities: 1) rheumatoid arthritis with degenerative features of the lumbar spine; (2) depressive disorder, not otherwise specified; (3) right Achilles' tendonitis; (4) peptic ulcer disease; and/or, (5) hemorrhoids. The term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is medically sound to find in favor of causation as it is to find against causation. In formulating the opinion, the medical professional should discuss whether there is a medically sound basis to attribute the migraine headaches that the Veteran now has, to either (or all) of the Veteran's service-connected disabilities (i.e., rheumatoid arthritis with degenerative features of the lumbar spine; depressive disorder, not otherwise specified; right Achilles' tendonitis; peptic ulcer disease; and hemorrhoids), including any medication taken for the service-connected disabilities. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably explain the medical guidance in the study of this case. 4. After the development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issue of service connection for migraine headaches, to include on secondary basis. If the benefit sought remains denied, furnish the Veteran and his representative a SSOC and allow them the opportunity to respond. The case should be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).