Citation Nr: 1312426 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 07-22 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a head injury, to include a chronic headache disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty in the Navy from September 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2010, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the claims folder. On several occasions (including in August 2010, February 2012, and November 2012), the Board remanded the issue on appeal to the Appeals Management Center (AMC), in Washington, DC for additional development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Unfortunately, this appeal is once again being REMANDED to the RO via the AMC. VA will notify the Veteran if further action on his part is required. REMAND Although further delay is regrettable, the Board finds that additional development remains necessary prior to adjudication of the issue on appeal. The Veteran seeks service connection for residuals of a head injury sustained in service. Service treatment records (STRs) show that he was injured in November 1970 when he hit his head on a hatch and required stitches. The Veteran has stated repeatedly that he has had headaches since this incident. He stated that he had headaches in service following his injury. He also saw a doctor within a year of his discharge, but these records are no longer available. The Veteran also stated that he has used over-the-counter pain medication rather than seeing a doctor on many occasions. See May 2010 hearing transcript. Post-service private treatment records show numerous complaints of headaches-albeit some of which were shown to have been in conjunction with assessments for hypertension. Pursuant to the Board's February 2012 Remand, the Veteran underwent a VA examination in April 2012. At that time, he reported that, ever since the in-service injury, he has experienced headaches. He noted that his headaches occurred every other week and were associated with nausea, sensitivity to light, sensitivity to sound, and changes in vision. He took Excedrin Migraine, which relieved the headaches. After reviewing the claims file, the examiner opined that the Veteran's headaches were "less likely than as not (less than 50 percent probability)" incurred in or caused by the 1970 in-service injury. The examiner explained that there was no complaint, evaluation, or treatment for headaches following the head injury (e.g., the separation examination showed no diagnosis of head injury, to include headaches). The examiner found that the post-service bump "had no effect" because there was no diagnosis of residuals of a head injury, to include headaches. In October 2012, the Veteran's representative argued that the examiner did not properly consider the Veteran's competent assertions of headaches since the in-service head injury. The Veteran is competent to report symptoms capable of lay observation, such as headaches. Layno v. Brown, 6 Vet. App. 465 (1994). In November 2012, the Board found the April 2012 VA examiner's opinion to be inadequate as it failed to discuss the Veteran's report of a continuity of symptoms since service. Thus, the Board remanded the case to obtain an addendum opinion as to the etiology of any chronic headache disorder. The examiner was to set forth the medical reasons for accepting or rejecting the Veteran's statements relating to continuity of headaches since the in-service head injury. In a January 2013 addendum to the April 2012 examination report, the examiner concluded that the Veteran's headache disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner also noted that the Veteran's claims folder review showed no complaint, evaluation, or treatment for headaches following a laceration to the scalp on November 4, 1970 or in service. The first report of headaches was in 1974, four years after the injury. The examiner further stated that there was no continuity of headaches since the 1970 injury. The examiner did not specifically address the Veteran's statements relating to continuity of headaches since the in-service head injury. In a March 2013 Informal Hearing Presentation, the Veteran's representative requested a remand for another examination because the examiner failed to set forth the medical reasons for accepting or rejecting the Veteran's statements relating to continuity of headaches since the in-service head injury. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated, additionally, that, if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Moreover, the Court has held that, once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2012). Although there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion, Ardison v. Brown, 6 Vet. App. 405, 407 (1994), it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the Court has emphasized, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). Here, despite being asked to do so, the examiner provided no discussion as to the Veteran's report of a continuity of symptomatology since service. The 2013 addendum contains the same inadequacies the Board found in the 2012 VA examination report. Without a discussion of the competent lay evidence regarding headaches in service and a continuity of related symptoms after service, the Board cannot conclude that the VA examiner's opinion is based upon consideration of all of the relevant evidence. Thus, the Board finds that the 2013 opinion is not adequate to rely on in evaluating the merits of this service connection claim. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who conducted the April 2012 VA examination and provided the January 2013 VA opinion (if available) and ask the examiner to review closely the entire record and to prepare an addendum addressing whether it is at least as likely as not, i.e., 50 percent or greater probability, that any diagnosed residuals of a head injury-to include a chronic headache disorder-had its clinical onset in service or is otherwise related to active duty (including the documented November 1970 injury when the Veteran hit his head on a hatch and required sutures). In answering this question, the examiner should address the effect, if any, of the post-service "bump" on the Veteran's head (which caused some bleeding) on any diagnosed residuals of a head injury, including a chronic headache disability. The examiner must discuss the Veteran's statements that he has had headaches since a 1970 in-service head injury and should set forth the medical reasons for accepting or rejecting the Veteran's statements relating to continuity of headaches since the in-service head injury. A complete rationale should be given for all opinions and conclusions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (additional facts are required, or the examiner does not have the needed knowledge or training). If this examiner is not available, the Veteran should be scheduled for a new VA examination, one in which the examiner is asked to answer the questions posed herein. 2. Then, readjudicate the claim for service connection for residuals of a head injury, to include a chronic headache disability. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the Court 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). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).