Citation Nr: 1327488 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 07-19 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a brainstem disorder. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to service connection for a headache disorder. REPRESENTATION Veteran represented by: Dana Duncan, Attorney ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from May 1989 to March 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. By a November 2008 decision, the Board denied the issues on appeal. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Remand (Joint Motion), the Court remanded the appeal in March 2010 for additional consideration. In August 2010, the Board vacated its November 2008 decision, and denied the issues on appeal. Thereafter, the Veteran appealed the Board's decision to the Court. Based on the Joint Motion, the Court remanded the appeal. In April 2012, the Board vacated its August 2010 decision and remanded the appeal for additional development. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO. REMAND In December 2012, the RO issued the most recent supplemental statement of the case with regard to this appeal. Subsequent to the issuance of this supplemental statement of the case, additional evidence was received by the RO; however, the RO did not issue a supplemental statement of the case prior to certifying the appeal to the Board. See 38 C.F.R. § 19.37(a) (2012). Here, the evidence includes VA treatment records dated in 2012 and 2013, some of which are relevant to the appeal. While there is a notation in the file by the RO that the evidence was not relevant, the Board disagrees. For example, the VA treatment records address head pain, a left greater occipital nerve block, headache complaints, a notation of abnormal chiari I malformation, finding of left occipital neuralgia, follow-up for headaches, and a report of an impending computerized tomography scan. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain and associate with the claims file all VA treatment records for the Veteran beginning in March 2013. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The VA examiners that previously provided an examination and opinion in this case in November 2012 and December 2012, must review the expanded record and prepare a supplemental report indicating the extent to which, if any, the additional evidence impacts on the prior opinions as to whether the Veteran's brain stem disorder, cervical spine disorder, or headache disorder are related to his period of active military service. The claims file and all electronic records, to include those on Virtual VA, must be made available to the examiner, and the examiner must specify in the examination report that these records were reviewed. The examiners must specify the dates encompassed by the Virtual VA records that were reviewed. If the prior VA examiners are no longer unavailable, the evidence of record must be reviewed by an appropriate examiner to provide an opinion as to whether the Veteran's brain stem disorder, cervical spine disorder, or headache disorder are related to his period of active military service. If another examination is deemed warranted, one must be scheduled. A complete rationale for all opinions must be provided. If the examiners cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiners must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiners 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. 3. If another examination is deemed necessary, the RO must notify the Veteran that it is his responsibility to report for any examination scheduled, 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 claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must to ensure that there has been complete compliance with the directives of this Remand. If not, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issues on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).