Citation Nr: 1631711 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 02-18 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder (originally claimed as PTSD), to include as secondary to service-connected migraines. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to December 1984, with additional time in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2006, the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing is associated with the claims file. These matters were previously remanded by the Board in separate March 2015 decisions for further evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The competent and probative evidence supports a finding that the Veteran's unspecified schizophrenia disorder/other psychotic disorder is etiologically related to his service-connected migraines. CONCLUSION OF LAW The Veteran's unspecified schizophrenia disorder/other psychotic disorder is aggravated by his service-connected migraines. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310(b) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Pursuant to the Board's March 2015 remand, the Veteran was afforded a May 2015 VA examination. The Board's remand requested a specific diagnosis of any psychiatric disability, an opinion regarding direct service connection for any diagnosed disability, and an opinion regarding secondary service connection with respect to the Veteran's service connected-migraines. The examiner noted that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD. However, the examiner did diagnosis the Veteran with unspecified schizophrenia disorder/other psychotic disorder. The examiner concluded that it was not possible, due to the evidence of record, to conclude whether the Veteran's psychiatric condition was incurred prior to, during, or after discharge from military service without resorting to mere speculation. However, the examiner did conclude that the Veteran's unspecified schizophrenia disorder/other psychotic disorder was "likely (more than 50% probability) aggravated by his migraines." There is no opinion to the contrary with respect to the link between the Veteran's currently diagnosed psychiatric condition and his service-connected migraines, and this opinion is based upon the clinical evidence of record, and interview and examination of the Veteran. When the medical evidence is considered in light of the other evidence of record, the evidence for the claim and the evidence against the claim are at least in equipoise. Thus, the Board finds that as the evidence is at least in equipoise, service connection is warranted. ORDER Entitlement to service connection for unspecified schizophrenia disorder/other psychotic disorder is granted. REMAND The Board's March 2015 remand directed that if aggravation of a psychiatric condition by service-connected migraines was found, the examiner should address the baseline manifestations of the Veteran's psychiatric disorder prior to aggravation and the increased manifestations which are proximately due to the migraines. As the examiner did not do this, the Board finds that clarification is necessary before adjudicating the Veteran's TDIU claim. In addition, the record indicates that there may be outstanding VA treatment records that should be obtained prior to adjudication. Accordingly, the case is REMANDED for the following action: 1. Send notice to the Veteran requesting that he identify any other treatment that he is receiving for his service-connected conditions and request that he forward any additional records to VA to associate with the claims file. If the Veteran is receiving regular VA treatment, obtain the updated medical records and associate them with the claims file. 2. Return the claims file to the May 2015 VA examiner. It is up to the discretion of the examiner if a new examination is necessary, or in the alternative, an addendum opinion is sufficient. With respect to the aggravation of the Veteran's diagnosed psychiatric disability by his service-connected migraines, the examiner should address the following issues: 1) the baseline manifestations of the Veteran's psychiatric disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the migraines. The examiner shoulder comment on how the increased manifestations of the Veteran's psychiatric condition, due to aggravation from the service-connected migraines, impact his employability. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Undertake any additional development deemed necessary for the Veteran's TDIU claim. 4. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, readjudicate the issue on appeal of entitlement to a TDIU. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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 2014). ______________________________________________ N. RIPPEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs