Citation Nr: 1031251 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 03-17 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for headaches. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and Son ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1951 to August 1953. This matter was last before the Board of Veterans' Appeals (Board) in March 2009, on appeal of an October 2002 rating decision of the Louisville, Kentucky regional office (RO) of the Department of Veterans Affairs (VA). The Board denied the Veteran's claim. The Veteran appealed the Board's 2009 decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and VA filed a Joint Motion for Remand with the Court. In a December 2009 Order, the Court remanded the claim to the Board for compliance with the instructions in the Joint Motion for Remand. In December 2004, the Veteran, accompanied by his (former) authorized representative, appeared at a hearing held before the below-signed Veterans Law Judge in Huntington, West Virginia. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND As noted above, this matter was remanded to the Board by a December 2009 Joint Motion for Remand. The Joint Motion for Remand directed that the Board ensure compliance with VA's duty to assist and provide an adequate explanation of the reasons or bases for its decision. The Joint Motion for Remand further identified multiple inconsistencies in the most recent, November 2008, VA examination and stated that the parties had agreed that the Board should order the RO to provide a new examination that evaluates whether the Veteran's disability presents symptoms justifying a 50 percent rating under Diagnostic Code 8100. The Board observes that the 2008 VA examination report contained the following inconsistent statements: headaches occur almost daily and are occasionally prostrating; the frequency of the headaches is weekly and they are not prostrating; the more severe headaches are prostrating. These statements conflict with each other as well as with testimony from the Veteran and his son that the headaches are constant. Due to the identified inconsistencies, the Board has determined that the Veteran must be afforded another VA examination, in compliance with the instructions of the 2009 Joint Motion for Remand. The U.S. Court of Appeals for Veterans Claims (Court) has held that a medical examination report must contain not only clear conclusions with supporting data, but a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the 2009 VA examination report contains inconsistent statements and does not reveal whether or not the examiner acknowledged the Veteran's report of constant headache pain (see Dalton v. Nicholson, 21 Vet. App. 23 (2007)), the Board finds it inadequate for rating purposes. If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2. Further, where the remand orders of the Board or the Courts 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, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO must afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record, to include, but not limited to, any additional VA, or non-VA, treatment. The Veteran should be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. The RO must then schedule the Veteran for a VA examination at an appropriate location to determine the current severity of his headache disability. The following considerations will govern the examination: a. The entire claims folder and a copy of this remand must be made available to the examiner in conjunction with the examination. The examination report must reflect review of pertinent material in the claims folder. b. After reviewing the claims file and examining the Veteran, the examiner must provide current findings as to the severity of the service-connected headache disability. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. The examiner must state the frequency and disabling effect of any headaches as well as the frequency of any prostrating attacks and the Veteran's level of functioning during any headaches. If the examiner is unable to render an opinion without resort to speculation, he or she should explain why and so state. Any necessary tests or studies must be conducted, and all clinical findings should be reported in detail and correlated to a specific diagnosis. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. 4. Thereafter, the RO must consider all of the evidence of record and readjudicate the Veteran's claim for an increased evaluation. The RO must consider the propriety of a "staged" rating based on any changes in the degree of severity of the Veteran's service-connected disability. The Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any sent notice was returned as undeliverable. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts 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, 271 (1998). 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 Supp. 2009). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).