Citation Nr: 1323312 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 05-15 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 30 percent for headaches. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities. 3. Entitlement compensation benefits for clostridium difficile infection as a result of VA treatment, pursuant to 38 U.S.C.A. § 1151. REPRESENTATION The Veteran is represented by: The American Legion ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from March 1983 to December 1985. These matters are before the Board of Veterans' Affairs (Board) on appeal from an August 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND The extensive adjudicative history involved need not be detailed here. It is sufficient to state that, in May 2010, the Board remanded the above-captioned claims for additional development. With respect to the Veteran's claim of entitlement to a rating in excess of 30 percent for headaches, the Board found that a remand was necessary in order to afford the Veteran a VA examination to assess the severity of her headaches. In particular, the Board requested that the examiner provide an opinion as to the frequency, severity, and duration of any prostrating attacks, to include whether the Veteran's headaches were productive of severe economic inadaptability. In the May 2010 remand, the Board found that the evidence of record reasonably raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). As this claim had not been developed or adjudicated by the RO, the Board found that a remand was necessary in order for the RO to undertake such actions. These claims have been remitted to the Board for further appellate review. A. Headaches In June 2010, the Veteran underwent a VA examination to assess the severity of her service-connected headaches. Ultimately, the examiner rendered the following opinion: I do not see any evidence that she is 'more disabled' than when Neurology began to see her in 2004. By her description she has near-daily headaches that are as severe of a headache as one could possibly imagine, so I really do not see how she could ever get 'worse' than what she is now from a headache standpoint. It is unlikely that the 'toxic exposure' during military service caused a chronic headache disorder without any evidence of structural damage (unremarkable brain [magnetic resonance image] in 2005). In my opinion, there is no reason to change her current disability status. The RO found that the opinion provided by the June 2010 VA examiner did not satisfy the Board's May 2010 remand directives as it addressed service connection, which was not in question. Consequently, the RO provided the Veteran another VA examination in October 2011. As a result of the October 2011 VA examination, the examiner determined that the Veteran experienced prostrating attacks of headache pain more frequently than once per month, and noted she reported she had migraines weekly. The examiner also determined that the Veteran's headaches had an impact on her ability to work. The examiner then reiterated the Veteran's claimed ability/inability to function and the symptoms that she claimed she experienced. The examiner also stated that the Veteran claimed that she was unable to work due to her headaches, but did not provide an independent opinion to that effect. The examiner went on to opine that the Veteran's headaches were "less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner then provided a rationale for that opinion wherein the Veteran's relevant treatment records were reviewed. Further, the examiner opined that, "per the Veteran's subjective complaints," her headaches "do prevent her from working; however, according to her primary care provider her [headaches] have been stable since [November 12, 2010]." In December 2011, the RO obtained an addendum from the October 2011 VA examiner. After reviewing the Veteran's relevant treatment records and assertions, the examiner provided the following opinion: According to the [V]eteran's primary care provider and her neurologist's most recent progress notes[,] her migraines have been stable[,] therefore, it is less likely than not that her headaches would cause severe economic inadaptability. In sum, since the Board's May 2010 remand, the Veteran has been provided two VA examinations that have resulted in two opinions regarding whether the Veteran's service-connected headaches were etiologically related to her military service; two "opinions" that were simply reiterations of the Veteran's claimed symptoms and ability/inability to function; and two seemingly contradicting opinions as to whether the Veteran's service-connected headaches were productive of severe economic inadaptability and/or unemployability. With respect to the last point, in October 2011, the examiner indicated that, per the Veteran's subjective complaints, she was unable to work due to her headaches without further elaboration or opinion. Conversely, in the December 2011 addendum, the same examiner opined that it was less likely than not the Veteran's headaches resulted in severe economic inadaptability. Although the December 2011 addendum appears to be an attempt at clarifying the October 2011 opinion, the examiner provided no rationale for the opinion rendered therein, beyond noting that the treatment records showed that her headaches have been stable. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). For these reasons, the Board finds that the June 2010 and October 2011 VA examinations are inadequate, even when considering the December 2011 addendum. Once VA undertakes the effort to provide an examination to a veteran, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that a remand is required in order to afford the Veteran another VA examination. Additionally, by failing to ensure that the VA examinations were adequate, the Board finds that the RO did not substantially comply with the May 2010 remand directives. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is required in order for the RO to undertake corrective actions. B. TDIU The Board found above that a remand is required in order to afford the Veteran another VA examination pursuant to her claim of entitlement to a rating in excess of 30 percent for headaches. Further, in a November 2012 statement, the Veteran submitted a claim of entitlement to compensation benefits for clostridium difficile infection as a result of VA treatment, pursuant to 38 U.S.C.A. § 1151, which has not been adjudicated by the RO. The disposition of these claims may have an impact on the adjudication of the Veteran's claim of entitlement to TDIU and, thus, these claims are considered "inextricably intertwined" with the Veteran's TDIU claim. All issues inextricably intertwined with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the Veteran's claim of entitlement to TDIU must be remanded to the RO for adjudication contemporaneous to the adjudication of her claim of entitlement to a rating in excess of 30 percent for headaches and her claim of entitlement to compensation benefits for clostridium difficile infection as a result of VA treatment, pursuant to 38 U.S.C.A. § 1151. C. Miscellaneous In May 2012, the Veteran's attorney (who is not the Veteran's representative of record) submitted a letter wherein he indicated that the Veteran wished to withdraw her "claim for disabled Veterans' benefits." Since then, the Veteran has continued to participate in the adjudication of her above-captioned claims. The Board finds that the RO should obtain clarification from the Veteran as to whether she wishes to withdraw her claim or claims. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain clarification from the Veteran as to whether she wishes to withdraw any currently pending claim. 2. The RO should undertake all appropriate actions, to include consistent with VA's duties to notify and assist under VCAA, with respect to the Veteran's claim of entitlement to compensation benefits for clostridium difficile infection as a result of VA treatment, pursuant to 38 U.S.C.A. § 1151. Thereafter, adjudicate the issue of entitlement to compensation benefits for clostridium difficile infection as a result of VA treatment, pursuant to 38 U.S.C.A. § 1151. Notice of the determination and the Veteran's appellate rights should be issued to the Veteran and her representative. Only if an appeal is completed as to this matter, following receipt of a timely notice of disagreement and issuance of a statement of the case, should the matter be returned to the Board for appellate consideration. 3. The Veteran should then be afforded a VA neurological examination to determine the nature and severity of her service-connected headaches. The claims file must be made available to the examiner for review in connection with the examination. All indicated studies should be performed, and all findings reported in detail. The examiner must provide an opinion (as opposed to reiterating the Veteran's statements) on the nature, frequency, and severity of the Veteran's headaches, and specifically address the frequency, severity, and duration of any prostrating attacks, to include whether her headaches are productive of severe economic inadaptability. Additionally, the examiner must provide an opinion as to whether it is at least as likely as not that the Veteran is unable to obtain and retain employment consistent with her education and occupational experience due solely to her service-connected disabilities, considered in combination, irrespective of age and any nonservice-connected disorders. If the examiner cannot provide any of the requested opinions, it must be so stated. Further, the examiner must provide the reason(s) why an opinion could not be provided. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is her responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. The RO should review the examination report in order to ensure compliance with the Board's remand directives. If the RO finds that the examination report is deficient in any material manner, the RO should undertake ameliorative actions prior to remitting the Veteran's to the Board. 6. Once the above actions have been completed, the RO must adjudicate the Veteran's claims for an increased rating and TDIU, taking into consideration any newly acquired evidence. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 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).