Citation Nr: 1313378	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  98-16 418	)	DATE
	)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for migraine headaches, including as secondary to a service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma.


REPRESENTATION

Appellant represented by:	Jan Dils, Attorney


WITNESSES AT HEARINGS ON APPEAL

The Appellant and his spouse


ATTORNEY FOR THE BOARD

M. Zawadzki, Counsel 


INTRODUCTION

The Veteran served on active duty from November 1965 to November 1967.

This appeal to the Board of Veterans' Appeals (Board) is from a September 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in relevant part, denied service connection for migraines as secondary to the service-connected disability of hemangioma of the nose.

In June 1999, the Veteran testified before a Decision Review Officer of the RO.  In January 2002, the Veteran and his spouse testified at another hearing at the RO, this time before a Veterans Law Judge of the Board, more commonly referred to as a Travel Board hearing.  A copy of the transcript is of record.

Subsequently, in March 2003, the Board denied the claim, and the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  Following and as a result of an April 2004 Joint Motion, the Court issued an Order later in April 2004 vacating the Board's decision and remanding the claim to the Board for further development and readjudication in compliance with directives specified in the Joint Motion.  And to comply with that Court Order and Joint Motion, the Board in turn remanded the claim in November 2004.

In March 2005, the Veteran's claims file was transferred to the RO in Roanoke, Virginia, and in April 2005 the file was transferred from there to the RO in Huntington, West Virginia, which is the RO that recertified the appeal to the Board.

In an October 2007 decision, the Board again denied the claim, and the Veteran again appealed to the Court.  In a June 2008 Order, the Court granted another Joint Motion that had been filed earlier that month - so again vacated the Board's decision and again remanded the claim for still further development and readjudication.  And in April 2009, the Board in turn again remanded the claim to the RO to comply with the directives of the Joint Motion.

Upon receiving the file back, the Board issued another decision in December 2009 again denying the claim, and the Veteran again appealed to the Court.  The Court issued another Order in July 2010, granting another Joint Motion filed earlier that same month, again vacating the Board's decision and again remanding the claim for still further development and readjudication.

In February 2011, the Board requested a medical expert opinion from a neurologist with the Veterans Heath Administration (VHA), and the designee provided this opinion in April 2011.  38 C.F.R. § 20.901(a).  The Veteran and his then attorney were provided a copy of that opinion (including the letter requesting that opinion) pursuant to 38 C.F.R. § 20.903(a), and the attorney submitted argument in response in May 2011.

The Board subsequently requested an independent medical expert (IME) opinion from another neurologist in July 2011, and the designee provided the opinion in August 2011.  38 C.F.R. § 20.901(d).  The Board then provided the Veteran and his attorney a copy of the opinion that same month pursuant to 38 C.F.R. § 20.903(a), and the attorney submitted additional argument in response later in August 2011.

Also in August 2011, there was a Congressional inquiry filed at the RO, which the RO in turn forwarded on to the Board in September 2011.  The Board responded to it in October 2011.

In November 2011 the Board contacted the IME to have him provide clarification of his opinion in an addendum, which he did in December 2011, and in January 2012 the Board in turn provided the Veteran and his then attorney a copy of this supplemental IME opinion.  In April 2012, however, the attorney indicated he had not received this additional opinion and, therefore, requested another copy.  Another copy of that addendum opinion thus was sent to the Veteran in June 2012, but apparently not also to the attorney.


Meanwhile, in February 2012, after being informed that the Veterans Law Judge who had conducted his hearing before the Board was no longer employed at the Board, the Veteran indicated he wanted another hearing at the RO before a different Veterans Law Judge who will ultimately decide his appeal.  The Board therefore remanded his claim in April 2012 to schedule this additional hearing.  After the remand, by letter dated in May 2012, the Veteran's attorney withdrew that request for an additional hearing.  38 C.F.R. § 20.702(e).  As the hearing request had been withdrawn, the Board proceeded with the readjudication of this claim and again denied it in a July 2012 decision, partly based on the December 2011 supplemental IME opinion.

In August 2012, in response, the Veteran's then attorney filed a motion to vacate the Board's July 31, 2012 decision, arguing the Veteran had not been provided sufficient time to respond to that opinion and that the attorney had not received a copy of it, only instead the Veteran.  And, for these reasons, the Board is now vacating that decision.

As a final preliminary matter, although previously represented in this appeal by Daniel G. Krasnegor (as reflected in a July 2008 VA Form 21-22a, Appointment of Individual as Claimant's Representative), in February 2013 the Veteran filed another VA Form 21-22a instead appointing Jan Dils as his new representative.  Only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim, with a few noted exceptions not shown to apply here.  38 C.F.R. § 14.631(e)(1).  A power of attorney may be revoked at any time, and unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney.  38 C.F.R. § 14.631(f)(1).  Accordingly, Jan Dils is being recognized as the Veteran's new representative in this appeal.



ORDER TO VACATE

The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2012).

Pursuant to 38 C.F.R. § 20.903(a), upon receipt of an IME opinion, the Board will furnish a copy of the opinion to the appellant and his representative, if any.  A period of 60 days from the date the Board furnished a copy of the opinion will be allowed for response.  38 C.F.R. § 20.903(a).

Here, as already alluded to, the Board obtained a supplemental IME opinion in December 2011.  While, in January 2012, the Board seemingly provided the Veteran and his attorney at the time a copy of this supplemental IME opinion, in April 2012 the attorney, via a paralegal in the firm, indicated that opinion had not been received, although referenced in the Board's April 2012 remand.  So the attorney requested a copy of that supplemental IME opinion.  Another copy of that supplemental IME opinion was sent to the Veteran in June 2012, but not also to his attorney at the time, as had been requested.  Additionally, the Veteran was not provided the required 60 days from the date of being furnished a copy of that opinion in June 2012 to submit additional evidence or argument in support of his claim prior to the Board's July 2012 decision.

Accordingly, to prevent prejudicing the Veteran, the Board's July 2012 decision denying this claim for service connection for migraine headaches, including as secondary to the service-connected hemangioma of the nose, status post lateral rhinotomy and resection of hemangioma, is being vacated.


In February and March 2013, the Veteran's new attorney requested a copy of the claims file pursuant to the Freedom of Information Act (FOIA).  She was furnished a complete copy of the claims file, including the December 2011 supplemental IME opinion, in April 2013.  She and the Veteran hereby are advised they resultantly have 60 days from the date of this decision to respond to that December 2011 supplemental IME opinion, including by submitting additional evidence/argument.  To allow them this opportunity, the case will be held in abeyance for 60 days from the date of this Order to VACATE allowing them this necessary time to respond.

They are further advised that, should they submit additional evidence or argument in response to the December 2011 supplemental IME opinion, they have a right to have this newly-submitted evidence or argument, along with the other evidence of record, initially considered by the RO as the Agency of Original Jurisdiction (AOJ), rather than by the Board in the first instance.  If they make that election, this additional evidence or argument would be addressed in a supplemental statement of the case (SSOC).  38 C.F.R. §§ 19.31, 19.37.  However, this right to initial AOJ consideration of any newly-offered evidence or argument may be waived, in writing, in which case the Board would be permitted to proceed immediately with its readjudication of this claim without first remanding this claim to allow the AOJ to initially consider the newly-submitted evidence or argument.  38 C.F.R. §§ 20.800, 20.1304.

Accordingly, the Board's July 31, 2012 decision denying the claim of entitlement to service connection for migraine headaches, including as secondary to a service-connected hemangioma of the nose, status post lateral rhinotomy and resection of the hemangioma, is vacated.



	                        ____________________________________________
	KEITH W. ALLEN
	Veterans Law Judge, Board of Veterans' Appeals