Citation Nr: 1310199 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-07 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for a stomach disability, to include as secondary to medications for a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from July 1983 to May 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision rendered by the Columbia, South Carolina Regional Office (RO) for the Montgomery, Alabama RO of the Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing in November 2008. A transcript is of record. The Board remanded the claims on appeal in February 2009. In August 2010, the Board denied the service connection claim for headaches and remanded the service connection claim for a stomach disorder. Pursuant to a May 2011 Joint Motion for Remand, however, the United States Court of Appeals for Veterans Claims vacated the Board's August 2010 decision denying service connection for headaches, and remanded the claim for additional development. With respect to the service connection claim for a stomach disorder, the Court did not have jurisdiction over this matter as it was the subject of the Board's remand. This claim was again before the Board in December 2011, at which time the Board remanded it for additional development. In the interim, the VLJ who conducted the November 2008 Board hearing left the Board. In a July 2011 letter, the Veteran was provided with the opportunity to testify before another VLJ at a Board hearing pursuant to 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. The Veteran declined in July 2011 and requested that his case be considered on the evidence of record. In September 2012, the Veteran indicated that he wished to appear at a hearing before a VLJ in Washington, DC, which was held before the undersigned in January 2013. A transcript is of record. 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 A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order, and where the remand orders of the Board were not complied with the Board itself errs in failing to insure compliance; in such situations the Board must remand back to RO for further development. Stegall v. West, 11 Vet. App. 268 (1998). In December 2011 the Board remanded the claim in order to obtain an addendum to the opinion from the February 2010 VA examiner. In regards to the Veteran's headaches, the addendum was to include discussion of the relationship between the hits to the head that the Veteran sustained while playing football in service and his headaches. An April 2012 opinion from the VA examiner states that it is less likely than not that the Veteran's headaches were related to service or aggravated by military service. The rationale discussed the Veteran's headaches after an April 1986 motor vehicle accident and further discussed the service treatment records. However, there was no discussion of the hits to the head that the Veteran sustained while playing football in service. Therefore, the claim must be remanded in order for a new opinion to be obtained. In regards to the claim of service connection for a gastrointestinal disability, to include as secondary to medications for a service-connected right knee disability, an opinion was to be obtained regarding the relationship between a gastrointestinal disability and the medications that the Veteran took for his right knee disability. An April 2012 VA opinion was that it was less likely as not that the service-connected right knee condition aggravated a gastrointestinal disability. The rationale did not include any mention of the medications that the Veteran has taken for the right knee disability. Therefore, the claim must be remanded in order for a new opinion to be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum to the VA examination report from February 2010 and the addendum from April 2012. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. The examiner is asked to provide an opinion as to whether it is at least as likely as not the Veteran's present headache disability is related to getting hit in the head while playing football during service. In providing an opinion, the examiner should acknowledge the Veteran's statements asserting symptoms in service that have continued since discharge. The examiner should note that the Veteran has reported playing football from 1984 to 1991. The examiner is also asked to provide an opinion as to whether it is at least as likely as not that the Veteran's gastrointestinal disability was caused by or aggravated beyond the natural progress of the disorder by the medications that he took for the service-connected right knee disability. The examiner is asked to discuss March 2001 treatment notes, indicating that taking Medrol helped the Veteran's knee but caused stomach cramps, and June 2003 treatment records stating that Naprosyn may cause peptic ulcer disease, both in volume 2 of the claims file. The October 2004 letter from a private treating physician, Robert Kominek, MD., also in volume 2 of the claims file, that indicates gastrointestinal distress related to medication for the right knee, should also be discussed. The possible gastrointestinal side effects of other medications that the Veteran took for his knee, including Lortab, Mobic, Celebrex, Soma, and Motrin, should also be considered. The examiner should explain the rationale for all opinions given, with citation to any supporting facts. If an opinion cannot be given without resorting to speculation, the examiner should so state and explain why such an opinion cannot be made. If the original examiner is unavailable, the matter should be referred to another for the requested opinions. If it is necessary to examine the Veteran to provide the requested opinions, that should be arranged. 2. Readjudicate the Veteran's claims. If the benefits sought on appeal are not granted in full, the RO should issue the Veteran and his representative a supplemental statement of the case and provide her an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ MICHAEL E. KILCOYNE 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).