Citation Nr: 1301648 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-38 116 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cluster headaches. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and M.M. ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1971 to October 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Philadelphia, Pennsylvania RO. In January 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. The Board remanded the matter in March 2012 for further evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND On review of the record, the Board finds that this matter must again be remanded for evidentiary development. In the March 2012 remand, the Board instructed that the Veteran be provided corrective notice regarding the newly raised secondary service connection theory of entitlement. The Veteran was issued such notice in an April 2012 letter. This instruction is fulfilled. The Board's remand also instructed that records of any VA treatment the Veteran may have received since April 2007 for the headache disability at issue must be secured. Treatment records from April 2007 through April 2012 were added to the claims file via Virtual VA (VA's online claims database). This instruction is fulfilled. Additionally, the Board noted on remand that the claims file includes an April 2007 Social Security Administration (SSA) letter indicating that the Veteran was found to be disabled as of May 6, 2006, and he became entitled to receive monthly disability benefits beginning November 2006. The Board also noted that on December 2008 VA spine examination, the Veteran reported that he "stopped working secondary to cluster migraine headaches". The Board found, on review of the claims file, that copies of the full SSA decision (indicating upon what disability/disabilities the SSA benefits are based) and the underlying medical records had not been secured for the record. The Board stated that, because the Veteran specifically indicated that he receives such benefits based on his headache disability, the SSA records are pertinent to this claim and must be secured. On renewed review of the claims file, the Board finds that the RO did not attempt to obtain the outstanding SSA decision or the underlying medical records; this instruction has not been fulfilled, and the matter must therefore be remanded again to do so. It is well-established in caselaw that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Board noted on remand that the Veteran had not been afforded a VA nexus examination in this matter to address the contentions for both direct and secondary service connection, and found such examination to be necessary. The claims file includes a May 2012 notation from the Philadelphia VA Medical Center that the Veteran cancelled his first scheduled appointment, which was rescheduled for another date; he then left a message on the date of the rescheduled appointment to indicate that he was unable to attend. The Board refers to 38 C.F.R. § 3.655, which states that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination, and a claimant without good cause fails to report for such examination, in an original compensation claim, the claim shall be rated based on the evidence of record. However, as the Veteran was not specifically advised of this regulation on the previous remand, and because the matter must be remanded again regardless, the Veteran should once more be scheduled for a VA nexus examination. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for association with the claims file copies of the complete clinical records (those not already associated with the claims file) of all VA evaluations and/or treatment the Veteran has received for headaches, psychiatric disability, and/or allergic rhinitis since April 2012. 2. The RO should also obtain copies of SSA's determination on the Veteran's claim for SSA disability benefits, and of the medical records on which such determination was based. 3. The RO should then arrange for the Veteran to be examined by an appropriate physician to determine the nature and likely etiology of his current headache disability, and in particular whether or not such disability is secondary to (was caused or aggravated by) his service-connected disabilities, to specifically include allergic rhinitis and PTSD. The Veteran's claims file (including this remand) must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of his claims file, the examiner should provide an opinion responding to the following: a) Please identify (by diagnosis) any current headache disability. b) What is the most likely etiology of such headache disability entity diagnosed? Specifically, is it at least as likely as not (a 50 percent or better probability) that such disability is directly related to the Veteran's active duty service (i.e., was incurred or aggravated therein)? c) If the opinion is that such headache disability is not directly related to the Veteran's active duty service, is it at least as likely as not (a 50 percent or better probability) that such disability was caused or aggravated by his service-connected disabilities, to include allergic rhinitis and PTSD? The examiner must explain the rationale for all opinions, citing to supporting factual data or medical texts/treatises, as appropriate. 4. The RO should then readjudicate the matter on appeal. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned, if in order, to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George R. Senyk 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) (2012).