Citation Nr: 1124690 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 08-31 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from August 1959 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In December 2009, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. In September 2008, the Veteran testified before a Decision Review Officer (DRO) at a personal hearing. Transcripts of those hearings are of record. In February 2010, the Board issued a decision in which it denied the Veteran's appeal regarding entitlement to service connection for headaches. He appealed to the U.S. Court of Appeals for Veterans Claims (Veterans Court). In December 2010, the Veterans Court granted a joint motion of the Veteran and the Secretary of Veterans' Affairs (the Parties), vacated the December 2009 Board decision as to the issue of service connection for headaches, and remanded the matter to the Board for compliance with the instructions in the joint motion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND At the outset, the Board notes that the Penelope E. Gronebeck of Jackson & MacNichol, Attorneys at Law, sent letters to the Board in March 2011 and April 2011. The March 2011 letter stated that the Veteran wanted another hearing before a member of the Board to be held at a local regional office. On March 31 2011, the Acting Chairman of the Board informed Penelope E. Gronebeck that the Board was not in receipt of the documentation required to verify her status as the Veteran's attorney of record. Enclosed in that written communication was a VA Form 21-22a (Appointment of Individual as Claimant's Representative). Penelope E. Gronebeck was informed that the Form 21-22a must be completed, signed, and returned to the Board before the Board could disclose any information relating to the Veteran's appeal. There is no completed and signed VA Form 21-22a of record from Penelope E. Gronebeck or any attorney. The most recent appointment of a representative by the Veteran is evidenced by a February 2007 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in which the Veteran appointed Disabled American Veterans (DAV) as his representative. There is no communication of record from the Veteran indicating that he does not wish DAV to be his representative. Therefore, the Board concludes that DAV is his representative. It follows that the request for a hearing from Penelope E. Gronebeck has no effect. Now the Board turns to the basis for this remand. The basis for the Joint Motion is unclear. In the December 2010 joint motion, the Parties agreed that the November 2007 VA Brain and Spinal Cord examination is not adequate and that the Board must remand the claim so that VA can provide the Veteran a new VA Brain and Spinal Cord examination. The Parties quoted the statement in the November 2007 examination report ""there is insufficient clinical or laboratory evidence to warrant a diagnoses of headaches related to his past concussion"" and the Parties agreed that "it is unclear from the examiner's statement whether some additional testing or information is needed, and possibly available, that would permit a diagnosis of headaches related to the Appellant's past concussion or whether there are other reasons that the evidence of record is insufficient." December 2010 joint motion at 3-4. The Board must therefore remand the matter so that VA can provide the Veteran with an adequate examination. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is scheduled for a VA Brain and Spinal Cord examination. The claims file must be made available to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her examination report as to whether the claims file was reviewed. The examiner is asked to accomplish the following: (a) Provide an expert opinion as to whether it is at least as likely as not that headaches suffered by the Veteran during the time period from when he filed his claim in February 2007 to the present were caused by his active service, specifically whether a concussion suffered during service caused the headaches. (b) If the examiner determines that it is not at least as likely as not that the Veteran's headaches were caused by his active service, and concludes (as did the November 2007 examiner) that there is insufficient clinical or laboratory evidence to warrant a diagnosis of headaches related to his past concussion, the examiner must provide a clear explanation as to whether some additional testing or information is needed, and possibly available, that would permit a diagnosis of headaches related to the Veteran's past concussion or whether there are other reasons that the evidence of record is insufficient (a review of the Joint Motion may help the examiner's understanding of the Board's problem in this regard). Any additional indicated testing should be carried out, if possible. A complete rationale must be provided for any opinion rendered. 2. Then, after ensuring the any examination conducted was adequate, and after taking any other developmental action deemed appropriate, readjudicate the Veteran's claim of entitlement to service connection for headaches. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The Veteran 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 Supp. 2010). _________________________________________________ JOHN J. CROWLEY 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).