Citation Nr: 1311051 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-38 819 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to an increased rating for panic disorder with agoraphobia, including depression, panic attacks, and anxiety, currently rated as 30 percent disabling. 3. Entitlement to an increased rating for incompetent cervix, currently rated as 0 percent disabling. ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from September 1993 to January 2003. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the RO of the Department of Veterans Affairs (VA) in Little Rock, Arkansas. The Board has reviewed both the Veteran's physical claims file and his file on the "Virtual VA" system to ensure a complete review of the evidence in this case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In June 2011, the Board remanded the Veteran's claims primarily to obtain a series of VA medical examinations. The medical examinations were scheduled for September 8, 12, and 14, 2011, and the Veteran was given written notice of the scheduled examinations in advance. Notes in the Veteran's claims file show that she failed to report to any of the scheduled examinations, and the claims were subsequently denied in an August 2012 Supplemental Statement of the Case. However, it is also noted that the Board remand instructions only required a neurological examination if it was so ordered by a VA medical examiner, and there is no indication that such an instruction was given. In a statement received in October 2012, the Veteran acknowledged that she had missed her scheduled VA medical examinations, but she asserted that she missed them due to an ongoing illness that resulted in both supraventricular tachycardia (SVT) and hospitalization at the end of September 2011. She reported having been told in mid-September 2011 that the examinations did not need to be rescheduled because there was sufficient evidence upon which to base a decision; however, given that the claims were denied, she has requested to be rescheduled for the missed examinations. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, a claim will be either evaluated based on the evidence of record or denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655 (2012). In this case, the Veteran's VA treatment records confirm that she was hospitalized from September 28, 2011 to September 29, 2011, in order to reconcile her medication. The Veteran's VA treatment records also show that she had developed SVT. While the VA treatment records do not show that the Veteran was hospitalized at the time of the scheduled medical examinations, the Board is willing to resolve reasonable doubt in her favor and find that she was experiencing the illness that later led to the hospitalization at that time. In consideration of the foregoing, the Board finds that good cause has been shown for the Veteran's failure to appear for the previously scheduled VA medical examinations; therefore, a remand to reschedule the medical examinations is warranted in this case. The Veteran is advised that it is imperative for her to attend the rescheduled medical examinations or the claims may be denied. Accordingly, the case is REMANDED for the following actions: 1. Forward the claims folder to a neurologist to obtain a supplemental medical opinion, without additional examination. If another medical examination is deemed appropriate in order to provide the requested opinion, please so schedule. All relevant documents (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) should be made available to and reviewed by the reviewer/examiner in rendering the opinion. The reviewer/examiner should confirm that the record was reviewed. Based on review of the record, the reviewer/examiner should provide an opinion on the following questions: a) Is it at least as likely as not (i.e., a 50% or higher degree of probability) that the Veteran's current headaches were manifested during or are causally or etiologically related to active duty service, to include any incident or event therein? (Please note that the Veteran has reported having headaches since 1998, and complained of frequent headache at the time of the August 2002 separation physical). b) Is it at least as likely as not (i.e., a 50% or higher degree of probability) that the Veteran's claimed headaches have been either caused by or aggravated by her service-connected essential hypertension? The term 'aggravation' is defined as a permanent worsening of the underlying disability versus a temporary or intermittent flare-up of symptoms which return to the baseline level of disability. c) Is it at least as likely as not (i.e., a 50% or higher degree of probability) that the Veteran's claimed headaches have been either caused by or aggravated by her service-connected panic disorder with agoraphobia (including depression, panic attacks, and anxiety)? The term 'aggravation' is defined as a permanent worsening of the underlying disability versus a temporary or intermittent flare-up of symptoms which return to the baseline level of disability. All opinions and conclusions expressed must be supported by a complete rationale in the report. It is important that, if any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon speculation, the reviewer/examiner should clearly so specify in the report, and explain why this is so. 2. Schedule the Veteran for an appropriate VA medical examination to determine the current severity of her panic disorder with agoraphobia, including depression, panic attacks, and anxiety. It is imperative that the record be reviewed in conjunction with the examination. The examiner should ascertain the current severity of the Veteran's panic disorder with agoraphobia, including depression, panic attacks, and anxiety. Appropriate examination findings should be reported to allow for evaluation of the Veteran's panic disorder with agoraphobia under 38 C.F.R. § 4.130, Diagnostic Code 9412. A Global Assessment of Functioning (GAF) score should be reported. If it is not possible to assign a GAF score on the basis of the Veteran's service-connected panic disorder alone, the examiner should so state. The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected psychiatric disability and any non-service-connected psychiatric disorders which may be found. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should so state in the examination report. 3. Schedule the Veteran for an appropriate VA medical examination to determine the current severity of her incompetent cervix. It is imperative that the claims folder be reviewed in conjunction with the examination. The examiner should ascertain the current severity of the Veteran's incompetent cervix. Appropriate examination findings should be reported to allow for evaluation of the Veteran's incompetent cervix under 38 C.F.R. § 4.116, Diagnostic Code 7699-7612. The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected incompetent cervix disability and any non-service-connected disorders which may be found, to include a discussion of the mass that was found in June 2012. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should so state in the examination report. 4. After completion of the above and any further development deemed necessary, the AMC/RO should review the expanded record and determine whether service connection is warranted for the Veteran's claimed headaches (including based on aggravation), and whether higher ratings are warranted for panic disorder with agoraphobia and incompetent cervix. The Veteran should be furnished an appropriate Supplemental Statement of the Case and be afforded an opportunity to respond if any benefit sought on appeal remains denied. Thereafter, the case should be returned to the Board for further appellate review, if in order. 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). 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). _________________________________________________ C. FERGUSON Acting 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).