Citation Nr: 1123385 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 06-37 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a tailbone disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Pflugner INTRODUCTION The Veteran served on active duty from September 1980 to August 1987 and from January 1988 to July 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A. Tailbone In December 2009, the Board remanded the Veteran's claim of entitlement to service connection for a tailbone disorder for further development. Specifically, the Board directed the AMC to afford the Veteran a VA examination to determine whether any current tailbone disorder was related to an inservice motor vehicle accident or otherwise to her active duty service. In January 2010, the Veteran underwent a VA examination. As a result of the examination, the diagnosis was "chronic soft tissue strain to the lower back." The examiner then opined that the Veteran's current low back symptoms were "primarily" due to the post-service motor vehicle accident. The examiner's opinion that the Veteran's current low back symptoms are "primarily" due to the post-service motor vehicle accident does not foreclose the possibility that some of the Veteran's current low back symptoms were incurred in or due to her active duty service, to include the inservice motor vehicle accident. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection). Further, the examiner did not render an opinion as to whether the Veteran's current chronic, lower back soft tissue strain was aggravated by a service-connected disability. Consequently, the Board finds that the January 2010 VA examination is inadequate for purposes of determining service connection. "Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, to satisfy VA's duty to assist with respect to this claim, the Board finds that a remand is warranted in order to afford the Veteran another VA examination. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). B. Migraine Headaches In December 2009, the Board remanded the Veteran's claim of entitlement to an initial evaluation in excess of 10 percent for her service-connected migraine headaches. The Board directed the AMC to attempt to obtain records associated with the Veteran's application for benefits from the Social Security Administration (SSA). See Baker v. West, 11 Vet. App. 163,169 (1998)(holding that, when VA is on notice of the existence and relevance of SSA records, it must obtain and consider them); see also Hayes v. Brown, 9 Vet. App. 67, 73-74 (1996); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). After the Veteran's SSA records were associated with her claims file, the Board directed the AMC to readjudicate the Veteran's claim. The Veteran's SSA records were obtained and associated with the Veteran's claims file. However, in January 2010, the AMC referred the Veteran's claim to the RO for reasons unknown to the Board. The AMC also indicated that, during the pendency of this appeal, the RO granted an increase in the rating assigned to the Veteran's service-connected migraine headaches, from a 10 to 50 percent. The evidence of record did not include a rating decision wherein this increase was demonstrated, or the effective date thereof. The AMC readjudicated the Veteran's claim of entitlement to service connection for a tailbone disorder and issued the Veteran 2 supplemental statements of the case, one dated in January 2011, and the other in March 2011. The RO remitted this claim to the Board for further appellate review. Although the AMC referred the Veteran's claim to the RO, to date, no supplemental statement of the case has been issued wherein the Veteran's increased rating claim has been readjudicated. RO/AMC compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board finds that a remand is warranted in order for the agency of original jurisdiction (RO or AMC) to readjudicate the Veteran's claim and, if any benefit remains denied, issue her and her representative a supplemental statement of the case. Accordingly, the case is remanded for the following action: 1. The Veteran must be afforded another VA examination to determine the nature and etiology of any current tailbone disorder. The claims file must be made available to and reviewed by the examiner. All necessary and appropriate tests must be performed and their results documented, to include range of motion testing. The examiner must fully describe all manifestations of any tailbone disorder found, to include any orthopedic and neurological findings. After examining the Veteran, and reviewing the service treatment records and post-service treatment records, the examiner must opine as to whether any current tailbone disorder is partially or wholly related to the Veteran's active duty service, to include any incident therein. The examiner must also address whether any current tailbone disorder was due to or aggravated by a service-connected disability. In rendering any etiological opinion, the examiner must address the Veteran's assertions that she experienced tailbone symptoms since her active duty service. A complete rationale for all opinions must be provided. If the examiner cannot render an opinion without resorting to speculation, the examiner must so state, and thoroughly explain why speculation is required. The report prepared must be typed. 2. The RO must notify the Veteran that it is her responsibility to report for the examination and to cooperate in the development of her 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 (2010). In the event that the Veteran does not report for the examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until she receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2010).