Citation Nr: 1625452 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 11-33 811 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a headache disability, claimed as residual to head injury. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 12, 1976 to September 3, 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2010 rating decision in which the RO denied service connection for headaches due to a head injury. In June 2010, the Veteran filed a notice of disagreement (NOD) with the June 2010 rating decision. The RO issued a statement of the case in December 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) that same month. The Board notes that, in addition to the paper claims file, there are paperless, electronic Virtual VA and Veterans Benefit Management System (VBMS) files associated with the Veteran's claim. In pertinent part, a May 2016 brief prepared by the Veteran's representative is located in VBMS. However, a review of the remaining documents in such files reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on this part, is required. REMAND The Board's review of the claims file reveals that further AOJ action on the claim on appeal is warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that his current headache disability is due to service. In his December 2011 substantive appeal, he claimed that he was hit on the left side of his head and rendered unconscious. During service, treatment records show a hospitalization to treat headaches. The Board notes that the report of the Veteran's enlistment examination in May 1976 reflects a normal neurologic evaluation and was silent with respect to any headache condition. From August 19, 1976 to August 26, 1976 he hospitalized for treatment of headaches. He then reported pressure at the top of his head, as well as a history of headaches since childhood. His neurologic evaluation was normal and the treating physician diagnosed psychogenic headaches. On August 23, 1976 the Veteran reported that his headaches were resolved and requested discharge from the hospital; this took place on August 26, 1976. Thereafter, the Veteran requested release from service. In a Deposition Form dated August 27, 1976, he requested separation or release from service due to loss of consciousness that was not known to him, but existed prior to service. The Veteran was discharged following a medical board proceeding held on August 31, 1976 in which it was found that he was medically unfit for service due to psychogenic headaches; such disability was found to have existed prior to service and was not aggravated by service. See September 1976 DA Form 3647-1. Also of record is a June 2006 lay statement from the Veteran's friend R.E., which details the Veteran's report of an injury during service. R.E. stated that the Veteran has consistently indicated that he was struck in the head during service, which rendered him unconscious. R.E. further stated that he was uncertain whether the Veteran had a headache condition that existed prior to service. Post service, on May 2010 examination, the Veteran reported having headaches during basic training in 1976 and stated that he did not seek ongoing treatment. Based on reported history, a review of the claims file, and physical examination, the examiner diagnosed headaches of an undetermined etiology. The examiner opined that the Veteran's current headaches are consistent with the headaches reported during service. Unfortunately, the Board finds that the VA examiner did not provide sufficient findings and opinions, and the record does not otherwise include sufficient information, to answer questions raised by the evidence in this appeal. ,. In this regard, the Board acknowledges that a prior headache condition was not noted at service entrance. However, there is evidence suggesting that the Veteran may have had a prior headache condition when entering service. During the August 1976 hospitalization, he reported headaches since childhood. In a Deposition Form dated August 27, 1976, the Veteran requested release from service due to loss of consciousness that existed prior to service, and during the subsequent Medical Board proceedings, it was determined that the Veteran had psychogenic headaches which existed prior to service. A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014). To rebut the presumption of soundness, VA must show, by clear and unmistakable evidence that (1) the disability at issue existed prior to service and (2) that such pre-existing disability was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board also notes point that when VA undertakes to provide a VA examination or obtain a VA opinion in connection with a service connection claim, even if not statutorily obligated to do so,, it must ensure that the examination or opinion is adequate for the purpose obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). See also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Accordingly, the Board finds that a remand of this matter for examination to obtain further medical findings and opinions responsive to the applicable legal standards is needed to resolve the claim on appeal. If the May 2010 VA examiner is not available, the AOJ should obtain an opinion, based on review of the claims file (to the extent possible), from an appropriate physician. The AOJ should only arrange for the Veteran to undergo further examination if deemed necessary in the judgment of the individual designated to provide the addendum opinion. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in denial of the claim on appeal. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging to obtain further medical findings and opinions in connection with this claim, to ensure all due process requirements are met, and record is complete, the AOJ should undertake appropriate action to obtain all outstanding, pertinent records. The claims file currently does not include any VA treatment records. The Board emphasizes, however, that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the AOJ should contact the Veteran for information concerning the dates and locations of any pertinent VA treatment records, then obtain all outstanding records of treatment of the Veteran for his claimed condition from any VA facility(ies) identified by the Veteran. The AOJ should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly as regards any private (non-VA) treatment) , explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see 38 U.S.C.A. § 5103(b)(3) (West 2014) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. After contacting the Veteran to obtain the dates and locations of VA treatment, obtain from any VA facility(ies) identified by the Veteran, any outstanding, pertinent records of evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, arrange to obtain an addendum opinion from the VA clinician who conducted the May 2010 VA examination. If that individual is no longer employed by VA, or is otherwise unavailable, document that fact in the claims file, and obtain an opinion, based on review of the claims file (to the extent possible), from an appropriate physician Only arrange for the Veteran to undergo further examination if deemed necessary in the judgment of individual designated to provide the addendum opinion. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the clinician, and the addendum opinion/examination report must include discussion of the Veteran's documented medical history and assertions. In addressing whether there exists a medical nexus between current headache disability and service, the examiner should provide opinions, based on sound medical principles, addressing the following: (a)(1) Whether a headache disability clearly and unmistakably existed prior to the Veteran's active service (before August 12, 1976); and, if so (2) whether such disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service. (b) If an increase in the severity of any pre-existing headache disability is shown during service, whether such increase in severity was clearly and unmistakably due to the natural progression of the disorder. (c) For a headache disability determined not to have clearly and unmistakably existed prior to the Veteran's active service, whether it is at least as likely as not (i.e., a 50 percent probability or greater probability) that the disability was incurred during a period of active service or active duty for training. In rendering the requested opinions, the examiner must consider and discuss all pertinent medical evidence (to include August 1976 service treatment records showing a diagnosis of and treatment for psychogenic headaches during service), as well as all lay assertions made by and on behalf of the Veteran, to include his competent assertions as to alleged in-service head injury, and as to the nature, onset and continuity of symptoms. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. To help avoid another remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence added to the paper claims file and/or the electronic file(s) since the last adjudication), and legal authority (to include the provisions of 38 U.S.C.A. § 1111)). 7. If the claim remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to additional legal authority considered (to include the provisions of 38 U.S.C.A. § 1111), along with clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested in should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).