Citation Nr: 18149733 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-35 640A DATE: November 13, 2018 REMANDED Entitlement to service connection for headaches, to include as secondary to a service-connected anxiety disorder with features of post-traumatic stress disorder and obsessive-compulsive disorder (psychiatric disorder), and secondary to service-connected traumatic brain injury (TBI), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to June 1991 and from March 1993 to October 1996. He also had additional periods of inactive service. For the reasons discussed below, the appeal is remanded. 1. Service connection for headaches, to include as secondary to a service-connected psychiatric disorder and service-connected TBI, is remanded. • VA addendum medical opinions: The Veteran contends in part that his current headache condition was caused or aggravated by his service-connected TBI. In August 2015, he was afforded a VA TBI examination in which the examiner cited a VA neurological evaluation suggesting that his current headache condition was not caused by his service-connected TBI. The 2015 VA examiner also found that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions / residuals attributable to TBI, such as migraine headaches. However, the examiner did not address whether the Veteran’s headache condition was aggravated by his service-connected TBI. An addendum medical opinion addressing this issue, including conflicting medical evidence on this point, is required. The examiner also must address whether his current headaches have been aggravated by his service-connected psychiatric condition as suggested by medical evidence of record. • National Guard service treatment records: The Veteran reported that he served in the National Guard after his second period of active duty. See October 2004 VA primary care note. He contends in part that he has had headaches since soon after a documented, March 1994 motor vehicle accident during active duty. Thus, his National Guard service treatment records may substantiate that contention. 2. Entitlement to a TDIU is remanded. • Supplemental Statement of the Case (SSOC): The RO obtained the Veteran’s VA vocational rehabilitation file – which includes documents pertinent to the TDIU claim – after the June 2016 Statement of the Case (SOC), but prior to transferring the file to the Board in April 2018. There are no waiver provisions in VA regulations for evidence received by the Regional Office (RO) prior to transfer of the file to the Board. Thus, the Board must remand this claim for the issuance of an SSOC. See 38 C.F.R. §§ 19.31, 19.37(a). • Social Security Administration (SSA) records: The Board's review of the record indicates that the Veteran’s SSA disability records remain outstanding. As such federal records are relevant to the TDIU claim and in VA’s constructive possession, the AOJ must attempt to obtain them. • Current VA examinations: As this issue must be remanded for the reasons discussed above, the RO also should schedule current VA examinations to assess the current nature, symptoms, and severity of the Veteran’s service-connected psychiatric and spine conditions. The most recent VA TBI and spine examinations were in August 2015, and the most recent VA psychiatric examination was in September 2015. • VA treatment records: The RO also should obtain updated VA outpatient treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Birmingham, Alabama VAMC and all associated outpatient clinics from May 2016 to the present. 2. Request the Veteran's complete SSA disability claim records. Document all requests and any negative responses. If the AOJ concludes that it is reasonably certain that these records do not exist or further efforts to obtain them would be futile, then notify the Veteran and his representative and give them the opportunity to submit the records. 3. Send the Veteran a letter (cc’ing his representative) asking him to identify his National Guard unit and dates of service. Then, attempt to obtain his National Guard service treatment records from all appropriate records repositories. If the AOJ concludes that it is reasonably certain that these records do not exist or further efforts to obtain them would be futile, then notify the Veteran and his representative and give them the opportunity to submit the records. 4. DO NOT PROCEED WITH THE FOLLOWING INSTRUCTIONS UNTIL ALL ACTIONS AND DEVELOPMENT REQUESTED ABOVE HAVE BEEN COMPLETED TO THE EXTENT POSSIBLE. 5. Schedule addendum VA medical opinions regarding the Veteran’s headache condition. The examiner must note his or her review of the complete claims file, including this remand. The examiner must address the following, with full supporting rationales: (a.) Is it at least as likely as not that the Veteran’s current headache condition has been aggravated (worsened beyond its natural progression) by his service-connected TBI? Please expressly consider conflicting medical evidence regarding whether his headaches may be a symptom of or otherwise related to his service-connected TBI. See, e.g.: August 2011 VA TBI nexus opinion (in support of favorable opinion, examiner’s rationale was history of 1994 motor vehicle accident and “chronic headaches”); August 2011 VA psychiatric examination (regarding Axis III medical diagnoses, finding that there is some indication that Veteran’s chronic headaches may be associated with TBI); October 2012 VA TBI clinic note (one of multiple VA outpatient notes documenting ongoing complaints and treatment of headaches in context of specialized TBI treatment); December 2013 VA neurological consult (finding he fits the criteria for migraines, though this doesn't rule out the possibility of post-concussive headache); but see, e.g., March 2011 VA TBI clinic note (finding headaches unlikely related to history of TBI given onset of symptoms); August 2015 VA TBI examination (noting that per TBI evaluation, Veteran’s headaches are not related to TBI, given onset of symptoms; finding Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions / residuals attributable to TBI, such as migraine headaches). (b.) Is it at least as likely as not that the Veteran’s current headache condition has been aggravated (worsened beyond its natural progression) by his service-connected psychiatric disability? Please expressly consider medical evidence suggesting that his psychiatric symptoms and medications may have worsened or otherwise impacted his headaches. See, e.g.: March 2011 VA TBI clinic note (noting Veteran’s complaints of anxiety, stress, and severe headaches; physician stated headaches would be reassessed after he was seen for anxiety in mental health clinic, “as headaches may improve without medication.”); May 2011 VA psychiatric note (noting complaints of headaches and nightmares; also noting some avoidance behaviors regarding headaches; one of multiple VA outpatient mental health notes consistently discussing headaches in context of psychiatric treatment); June 2011 VA TBI clinic note (noting Veteran had severe, daily headaches initially when he started Zoloft for anxiety, and that headaches have improved since then); August 2012 VA psychiatric note (one of multiple VA outpatient mental health notes suggesting possible relationship between Veteran’s passive suicidal ideation and headaches); October 2012 VA TBI clinic note (regarding treatment plan for headaches, physician found that they sounded mostly like tension-type headaches; recommending that Veteran consistently take Zoloft for anxiety, continue with mental health clinic, and research ways to decrease stress). If any opinion requested above is not possible without resort to mere speculation, then the examiner must explain why. If the examiner finds that he or she cannot provide the requested opinions without another VA examination, then the RO must schedule one. 6. After completing the above and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, issue an SSOC that expressly considers all evidence received since the June 2016 SOC. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel