Citation Nr: 0002167 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-06 698A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for headaches, to include migraines. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant served on active duty from July 1958 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 1995 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Fort Harrison, Montana. The Board notes that in an August 1999 rating action, the RO denied the appellant's claim of entitlement to an increased (compensable) rating for paresthesia of the lateral femoral cutaneous nerve. There is no indication from the information of record that the appellant filed a Notice of Disagreement (NOD). Accordingly, this issue is not before the Board for appellate consideration. REMAND A review of the record indicates in June 1958, the appellant underwent an enlistment examination. At that time, in response to the question as to whether the appellant had ever had or if she currently had frequent or severe headaches, she responded "yes." The examining physician noted that the appellant had had headaches which were "relieved by proper glasses, N.C.W." The appellant's entrance examination showed that her head, face, neck, and scalp were all clinically evaluated as "normal," as was her neurological system. The service medical records show that in March 1959, the appellant was treated after complaining of a frontal and maxillary headache which had been present for two to three weeks. At that time, she stated that she had had a similar episode during boot camp. Upon examination, it was noted that the appellant was quite tender over both the frontal and axillary sinuses. Following the examination, the appellant was given a nasal spray for treatment. The service medical records reflect that in September 1959, the appellant was treated after complaining of bi-temporal headaches, which were severe at times, with "visual aura." At that time, the appellant stated that during boot camp, from approximately July to September 1958, she started to have nearly continual headaches. The appellant indicated that the headaches would decrease with medication and then would not return for several days. She reported that she did not have any headaches during Corps School, from October 1958 to January 1959, but that they returned when she was sent to the U.S. Naval Hospital in Annapolis. According to the appellant, the headaches would start in the occiput and would radiate to the temples or to the entire head if severe. The appellant revealed that the headaches seemed worse in the morning, better in the early afternoon, but worse again by the late afternoon. She stated that the headaches would disappear in the evenings if she was active. The appellant noted that approximately three years ago, she accidentally hit her head and subsequently developed a head and neck ache for three weeks. The examining physician indicated that upon examination, the appellant seemed anxious. The examiner reported that the neurologic examination was entirely normal, and that cervical spine x-rays were normal. The impression was of a tension headache which was probably psychogenic. The records show that in March 1960, the appellant was treated after complaining of frontal headaches and blurred vision. At that time, she was diagnosed with migraine headaches and treated with medication. The records reflect that in a follow-up examination, the examiner noted that the appellant had "excellent relief" with the medication. According to the records, in December 1960, the appellant was hospitalized for an unrelated disorder. During the appellant's hospitalization, the appellant noted that she had a headache from staying in bed. The records show that in November 1961, the appellant was treated after complaining of neck pain. At that time, the appellant stated that her neck pain was causing her to develop headaches. The physical examination showed that there was tenderness over the superior process of C-7 and C-1. The appellant's service medical records reflect that in March 1962, it was noted that the appellant's medication had not helped with her headaches. The records show that in April 1962, the appellant was hospitalized for pyelonephritis. At that time, she stated that she had a past history and family history of migraine type of headaches, partly relieved by Darvon. During the appellant's hospitalization, the appellant was given medication for her headaches. The records further reflect that in July 1962, the appellant was given medication for migraine headaches. The appellant's separation examination, dated in March 1964, shows that at that time, the appellant's head, face, neck, and scalp were all clinically evaluated as "normal." VA outpatient treatment records, from June 1964 to June 1976, show that in November 1972, the appellant was treated after complaining of headaches. At that time, she stated that she had a long history of headaches. The appellant indicated that her headaches were relieved by medication. According to the appellant, at present, she had pain in the left frontal area and noise or light aggravated the pain. Following the examination, the appellant was given medication. The records reflect that in April 1975, the appellant was treated after complaining of a headache. At that time, the appellant stated that she had a history of migraine headaches which were usually very severe. The assessment was of a migraine headache, and the appellant was given medication for treatment. The records further show that in July 1976, the appellant was given medication for her migraine headaches. Private medical records from the Huntley Project Medical Center, from February 1978 to August 1994, show intermittent treatment for the appellant's migraines. A statement from Ms. N.H., of the Huntley Project Medical Center, dated in January 1995, shows that at that time, Ms. H. indicated that the appellant had been receiving treatment at the Center since 1983 for her migraine headaches. Ms. H. reported that the appellant's most recent treatment for her migraines included Imitrex injections, which were successful. In January 1996, the appellant underwent a VA examination. At that time, the examiner diagnosed the appellant with migraine headaches. The examiner further noted that the appellant's old records were reflective of a migraine condition. In light of the above, the Board remanded the claim for service connection for headaches, including migraines in July 1998, for additional evidentiary development. The Board noted that in the instant case where the appellant's entrance examination referred to headaches but was silent in regards to migraines, and also where the appellant's head, face, neck, and scalp were clinically evaluated as "normal," the appellant was presumed to be medically sound at enlistment with respect to the claimed disorder, and that the presumption of soundness could only be rebutted by clear and unmistakable evidence to the contrary. Accordingly, in light of the aforementioned, the Board remanded this case and requested that the RO provide the appellant with a VA examination in order to determine the nature and extent of any headaches, to include migraines. The examiner was requested to review the claims folder and offer an opinion as to the time of onset of any headaches, including migraines. If the appellant's headaches, including migraines, pre- existed service, an opinion was to be given as to whether the appellant's condition became worse in service. If her headaches, including migraines, worsened during service, an opinion was to be provided as to whether the worsening was due to the natural progression of her condition. Finally, the examiner was requested to offer an opinion as to whether any current diagnosis of headaches, including migraines, was etiologically related to the appellant's military service. In December 1998, the appellant underwent a VA examination which was conducted by M.G., M.D. At that time, the appellant stated that her migraine headaches had originated in 1960 when she was in the Navy and developed her first headache. The appellant indicated that she developed a severe "blinding headache" and that she could not see out of one of her eyes. She reported that she sought medical treatment and was told that she had "hysterical blindness from the pain." Dr. G. noted that it appeared that the appellant felt ridiculed about having gone to sick call and, according to the appellant, she never went back to sick call. The appellant revealed that for the remainder of her service, she worked around physicians, and that whenever she developed a headache, one of the physicians would give her medication. She indicated that at present, she took Imitrex injections for her migraine headaches, which helped her immensely. Following the examination, Dr. G. diagnosed the appellant with a personal and family history of migraine headaches, which were well treated with Imitrex. In March 1999, Dr. G. conducted a second VA examination. At that time, Dr. G. stated that upon a review of the December 1998 VA examination report, the appellant's headaches started in 1960. Following the examination, Dr. G. diagnosed the appellant with muscle contraction headaches. Dr. G. noted that if the appellant's muscle contraction headaches were not treated with medication, they could then progress into migraine or vascular-type migraine headaches. According to Dr. G., the appellant's headaches were effectively treated with Imitrex. In light of the above, the Board notes that it appears from the December 1998 and March 1999 VA examination reports that the VA examiner, Dr. G., did not address all of the Board's questions from the July 1998 remand decision, namely whether the appellant's headaches, including migraines, pre-existed service, and if so, whether the appellant's condition became worse during service, and whether any current diagnosis of headaches, including migraines, was etiologically related to the appellant's military service. The Board observes that it is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board and the RO with remand directives is neither optional nor discretionary. Where the remand of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board regrets further delay, in light of the above, the Board is of the opinion that additional development is warranted. In accordance with the statutory duty to assist the appellant in the development of evidence pertinent to her claim, the case is REMANDED for the following actions: 1. The RO should refer the appellant's claims file to a VA neurologist, preferably Dr. M.G., if available. The examiner is requested to review the claims file, including the service medical records (to specifically include the June 1958 report of entrance examination, the intermittent treatment records for headaches, and the March 1964 report of separation examination), and the reports of VA examination dated in January 1996, December 1998, and March 1999; and provide a written opinion as to the following: Does the appellant have a headache condition? If so, did she have it in June 1958 based on the June 1958 entrance examination report? If the appellant had a headache condition in June 1958, did the condition worsen during service? If the condition worsened during service, was it due to the natural progression of the condition or could it be contributed the appellant's period of service? In the alternative, the examiner is also requested to offer an opinion as to whether any current disability manifested by headaches, to specifically include migraine headaches, had its initial onset during the appellant's period of active duty service, taking into consideration the appellant's service medical records and the findings noted therein. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If the examination report is not responsive to the Board's questions, corrective action should be taken. Thereafter, the RO should readjudicate the issue of entitlement to service connection for headaches, to include migraines. If the benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The Board intimates no opinion as to the ultimate outcome of the case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).