Citation Nr: 1312063 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 06-25 035A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a hip disorder. 4. Entitlement to a disability rating in excess of 30 percent for service-connected tension headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to October 1975. The records show that the Veteran served in the Reserves with active duty from July 1987 to December 1987. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in January 2005 and April 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded these matters in December 2009 to obtain complete service treatment records and service personnel records for active and Reserve service, to obtain any treatment records from a medical facility in Israel, and to provide the Veteran with a VA examination. By a rating decision in July 2011, the evaluation for the service-connected tension headaches was increased to 30 percent, effective May 4, 2010. The RO otherwise continued the denial of each claim as reflected in the July 2011 supplemental statement of the case and returned these matters to the Board for further appellate consideration. These matters again came before the Board in May 2012, at which time the Board remanded the service connection claims for additional development, and increased the Veteran's tension headache disability rating to 30 percent prior to May 4, 2010, but declined to grant entitlement to a rating in excess of 30 percent at any time during the entire rating period on appeal. The Veteran appealed the May 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2012, the Court remanded the case to the Board for development consistent with a Joint Motion for Remand (JMR). The issues of entitlement to service connection for a lumbar spine disorder, cervical spine disorder and a right hip disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record demonstrates that, throughout the entire rating period on appeal, the Veteran's tension headaches have been manifested by characteristic prostrating attacks occurring on average once a month over the last several months. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for service-connected tension headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased-compensation claims, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between zero and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be Veteran specific, or refer to the effect of the disability on "daily life"). An April 2004 letter informed the Veteran that he should submit evidence showing his service-connected headaches have become worse. A January 2009 letter notified the Veteran how VA determines a disability rating. The letters also informed the Veteran of the specific diagnostic criteria used to determine the disability rating for his headaches. The RO notified the Veteran of the types of medical or lay evidence that he may submit. Specifically, the Veteran was informed that evidence which may show an increase in severity may include a statement from his physician containing clinical findings or statements from individuals that are able to describe from their knowledge and personal observations in what manner his disability has become worse. He was also informed that he may submit his own lay statements of increased disability. Furthermore, the letters notified the Veteran of the evidence that VA will seek to provide and the information the Veteran is expected to provide in substantiating his claim. The VA letters did not apprise the Veteran of the criteria for consideration in the assignment of an effective date in the event of award of a benefit sought. However, the Board finds that the Veteran has not been prejudiced by this notice defect as he had actual notice of such criteria. In this regard, it is noted that the July 2011 supplemental statement of the case advised the Veteran of the criteria for consideration in the assignment of an effective date, in the event of award of a benefit sought. The January 2009 letter was sent after the initial adjudication of the Veteran's claims. Nevertheless, the Board finds that the timing of the letter was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of supplemental statements of the case issued in March 2009 and July 2011, after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records and VA examination reports dated in December 2004, February 2009, and May 2010. The February 2009 and May 2010 VA examination reports reflect that the examiners conducted a review of the Veteran's claims file in addition to obtaining oral history and an evaluation of the Veteran with respect to his headaches. The examiners documented in detail the findings of the physical evaluation and the claimed symptoms. Accordingly, the Board concludes that the examinations are adequate for rating purposes. In addition, as noted in the Introduction, this issue was previously remanded in December 2009 for a VA examination to evaluate the current severity of the Veteran's tension headaches. The May 2010 VA examination report discussed in detail the current severity of the Veteran's service-connected tension headaches. Accordingly, the Board finds that there has been substantial compliance with the December 2009 remand directive with respect to the issue on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the claims file contains the Veteran's statements in support of his claims. The Veteran was also afforded a July 2007 hearing before the RO's Decision Review Officer (DRO) in which the Veteran presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The Veteran's representative asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The DRO did not specifically seek to identify any pertinent evidence not currently associated with the claims, but this was not necessary because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under appeal. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Merits of the Claims for an Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function, will be expected in all cases. See 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Tension Headaches Tension headaches are not specifically listed in the rating schedule; therefore, they are rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related. See 38 C.F.R. § 4.20 (2012). The Veteran's tension headaches are currently evaluated by analogy under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012), for migraine headaches. Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated as 10 percent disabling. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. VA regulations do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." VA regulations also do not define "economic inadaptability." However, the Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). As indicated above, in its May 2012 decision, the Board increased the Veteran's disability rating for tension headaches from 10 percent to 30 percent prior to May 4, 2010, but determined that a disability rating in excess of 30 percent was not warranted at any time during the rating period of appeal. For the reasons discussed in more detail below, the Board again finds that the Veteran is not entitled to a disability rating in excess of 30 percent for tension headaches at any time during the rating period of appeal. The Veteran was provided with a VA examination in December 2004. The examiner stated that despite the use of Fioricet to treat the Veteran's headaches, he experienced daily headaches that lasted approximately four hours. The Veteran did not describe any flare-ups of his headaches. Physical examination of the Veteran revealed cranial nerves II through XII were intact. Ocular movements were normal. Pupils were normal in size and reacted to light and accommodation. There was no cerebellar dysfunction. There were no sensory or muscle deficits. The examiner did not complete the examination with respect to migraine headaches as he determined that the Veteran had tension headaches. Thus, the Board had found that this examination was not adequate for rating purposes as the examiner did not fully evaluate or adequately discuss the Veteran's disability in order to rate the Veteran under the appropriate diagnostic code. The Veteran was provided with another VA examination in February 2009. The Veteran rated his headaches as a five or six out of ten for level of discomfort. The headaches were generally at that level throughout the day and, although he could go to sleep with the headache, he would wake up on average once per night to take medication. The headaches were described as bi-temporal and in the vertex of the skull. He reported that it felt as though a spike was pulling his mid-cranial area posteriorly. The headaches were not preceded by auras such as olfactory sensations, scotomata, flashing lights, or tunnel vision. The Veteran indicated that three or four days a month he would experience flare-ups that would last approximately three to four hours, and he rated these flare-ups as a seven or eight out of ten for level of discomfort. If the Veteran was able to get into a room and lie prone, as well as take medication, the headaches would revert to the baseline level of discomfort in three or four hours. The Veteran did not have any physician-ordered periods of incapacitation in the past twelve months related to his headaches. He reported that once he was up for the day, he did not take naps. VA treatment records showed that the Veteran had sought treatment for his headaches on numerous occasions. The Veteran had been diagnosed with chronic daily headaches. A December 2005 VA treatment record showed that the Veteran complained of headaches. He indicated that he did not sleep during the previous night and on a scale of one to ten the pain was rated as a seven. Fioricet helped with the headache, but it did not take it away. Stress made his headaches worse and medication improved the headache to a dull ache. His headaches did not cause nausea or vomiting. The Veteran underwent another VA examination in May 2010. The Veteran reported that he had developed chronic daily tension headaches, which lasted from two to eight hours. The headaches were described as frontal and/or suboccipital in location. The Veteran denied associated photophobia and/or phonophobia, and indicated that he very rarely had nausea or vomiting. He reported that nausea and vomiting only occurred about once a year if a headache was particularly severe. When the headache pain was in the suboccipital area, he felt like his neck was crunching when he moved his head around, causing increased headaches. He indicated that his daily headaches ranged from a four to eight out of ten in pain. The Veteran denied any aura from his headaches. He stated that he would sit down in a darkened room for about one hour a couple times per week due to his headaches. The Veteran's headaches were worsened by emotional upset and caffeine. The Veteran contended that he has never been free of headaches since he first had symptoms in service and that the amount of medication he uses to treat his headaches has increased. In addition, he asserted that he had prostrating headaches. The Veteran has blinding headaches when he does not take his medication and he is relegated to remaining at home in a climate-controlled environment. During the July 2007 DRO hearing, the Veteran testified that he became incapacitated due to his headaches when he did not have his medication as there was sometimes a gap with refilling his prescription. He explained that his headaches would get so bad that he was unable to function in a normal way. These incapacitating headaches occurred one to two days approximately every two months. Based on the evidence of record, the most pertinent of which is discussed above, the Board finds that the Veteran's tension headaches most closely approximate a 30 percent disability rating for the entire appeal period. In this regard, the Board notes that the report of VA examination in February 2009 indicated that the Veteran's tension headaches flared up approximately three to four times per month lasting anywhere from three to four hours requiring him to lie down in addition to taking medication. Furthermore, the May 2010 VA examination revealed that the Veteran's headaches result in the Veteran sitting down in a darkened room for about one hour a couple times a week. The Boards finds that lying or sitting in a dark room is evidence of a prostrating headache. Thus, the evidence of record shows that the Veteran has characteristic prostrating attacks occurring at least once a month, if not more, over the last several months. The September 2012 Joint Motion indicated that the Board's May 2012 decision erred by not considering or discussing the Court's holding in Pierce v. Principi, 18 Vet. App. 440 (2004), that the Board committed remandable error in its denial of a claim of entitlement to a rating in excess of 30 percent for vascular headaches because the Board failed to specifically address the application of and the interplay between 38 C.F.R. §§ 4.3, 4.7, and 4.21 in terms of each of the factors specified in Diagnostic Code 8100 for a 50 percent rating. As discussed above, headaches manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating under Diagnostic Code 8100. As noted by the Court of Appeals for Veterans Claims (Court), the term "economic inadaptability" is not defined in Diagnostic Code 8100 or elsewhere in statutes and regulations. However, the term does not require that that a veteran must be unemployed or unemployable to meet the criteria. Pierce, 18 Vet. App. at 446. In its analysis, the Court noted that the only other use of the term "inadaptability" in the regulations (now deleted) was in the context of "social inadaptability" which was defined as "abnormalities of conduct, judgment, and emotional reactions which affect economic adjustment; i.e., which produce impairment of working capacity." Id. In this case, the Veteran retired in October 2001 from his position as a management analyst for the Army Reserve Personnel Center, and indicated that he had been consistently employed since his discharge from service until that time. The Veteran contends that a 50 percent rating under Diagnostic Code 8100 is warranted because not all elements of a higher rating need be met before that rating is assigned. 38 C.F.R. § 4.7, 4.21. However, this provision is not applicable to diagnostic codes such as Diagnostic Code 8100 that apply successive rating criteria, where "the evaluation for each higher disability rating include[s] the criteria of each lower disability rating, such that if a component [i]s not met at any one level, the veteran could only be rated at the level that did not require the missing component." Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Where that is the case, to permit a rating at the higher percentage, "where only two out of the three criteria were met, would eviscerate the need for [a lower rating percentage] since the symptoms established for either rating might be the same." Id. (citing Camacho v. Nicholson, 21 Vet. App. 366-67 (2007)). In contrast, in diagnostic codes that do not employ successive rating criteria, "a veteran could potentially establish all of the criteria required for [ ] a [higher] disability rating, without establishing any of the criteria for a lesser disability rating." Id. Therefore, the Board concludes that demonstrating severe economic inadaptability which involves economic adjustment and impairment of working capacity is required to substantiate a higher rating. Otherwise, the only difference in the criteria for the currently-assigned 30-percent evaluation and the maximum-schedular 50-percent evaluation is that the 30-percent criteria requires prostrating attacks occurring "an average once per month over the last several months" while the 50-percent criteria requires "very frequent completely prostrating and prolonged attacks." Here, at worst, the Veteran has indicated that his tension headaches flared up approximately three to four times per month lasting anywhere from three to four hours. The Board does not find this rate and duration to be "very frequent" or "prolonged." In this case, notwithstanding the frequency and discomfort associated with the Veteran's headache attacks, the Board concludes that the Veteran's economic inadaptability is not severe but rather both mild and speculative. The Board observes that there is no evidence in the record, to include the Veteran's lay statements, that indicate the Veteran has completely prostrating and prolonged exacerbations of headaches, productive of severe economic inadaptability. Although the May 2010 VA examination indicates that the Veteran has frequent prostrating attacks of headaches in that his headaches require him to sit in a darkened room for about an hour a couple times a week, the Board does not find that these exacerbations are prolonged in that the headaches tend to get better after an hour. Furthermore, his headaches have not been shown to result in economic inadaptability as the evidence does not show adverse economic impact, other than as contemplated by the assigned 30 percent rating, and he is retired. Based on the foregoing, the Board finds that a rating in excess of 30 percent for the Veteran's tension headaches is not warranted at any time during the appeal period. Therefore, in considering all of the evidence of record, the Board finds that the Veteran's disability picture more closely approximates the 30 percent disability rating for the entire appeal period. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected tension headaches is inadequate. A comparison between the level of severity and symptomatology of the Veteran's tension headaches with the established criteria found in the rating schedule for migraine headaches shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board notes that the record shows that the Veteran is retired. The evidence does not indicate that his headache disability by itself has caused marked interference with his employment. Furthermore, the record reveals that the Veteran's tension headaches have not necessitated frequent periods of hospitalization during the appeal period or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that either disability at issue renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to a disability rating in excess of 30 percent for service-connected tension headaches is denied. REMAND The Veteran also seeks entitlement to service connection for a lumbar spine disorder, a cervical spine disorder, and a hip disorder. In its May 2012 remand instructions, the Board directed the RO/AMC to take all actions necessary to attempt to obtain treatment records from the Herzliya Medical Center in Herzliya Pituach, Israel, schedule the Veteran for a VA examination by an appropriate medical specialist who has not already examined the Veteran regarding his service connection claims, and to then readjudicate the remaining claims on appeal. To date, it does not appear that the requested development has been completed in full. Where remand orders of the Board are not complied with, the Board errs as matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board finds that another remand is warranted to have the RO/AMC conduct the requested development for these claims. Accordingly, the case is REMANDED for the following action: 1. Take all actions necessary to again attempt to obtain treatment records from the Herzliya Medical Center in Herzliya Pituach, Israel. Please associate all of the treatment records received with the claims file. Perform all follow up indicated and document any negative responses. If the RO/AMC is unable to locate or obtain these records, then the RO/AMC should inform the Veteran so that he may attempt to obtain these records on his own. 2. After completion of the above, schedule the Veteran for a VA examination by an appropriate medical specialist who has not already examined the Veteran regarding the Veteran's service connection claims for lumbar spine, cervical spine and right hip disorders. The claims folder must be made available to the examiner(s) in conjunction with the examination. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies, including X- rays, should be performed, and the examiner should review the results of any testing prior to completing the report. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any lumbar spine, cervical spine and/or hip disorder found on examination is/are at least as likely as not (i.e., a 50 percent or greater probability) etiologically related to the Veteran's active military service, Active Duty Training (ACDUTRA) or Inactive Duty Training (INACDUTRA). The examiner should provide a complete rationale for all conclusions reached. 3. Upon completion of the foregoing, readjudicate the Veteran's claims of entitlement to service connection for a lumbar spine disorder, a cervical spine disorder and a hip disorder, based on a review of the entire evidentiary record. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs