Citation Nr: 1327629 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 07-27 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a headache disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1968 to May 1971 and from October 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, inter alia, confirmed and continued the previous denial of service connection for headaches. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on his part is required. REMAND Unfortunately, an additional remand of the Veteran's claim is warranted. Although the Board regrets the additional delay associated with this remand, further development of the record is required before the Board may render a decision in the instant case. When the Board's remand requests are not satisfied, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board's June 2013 Remand instructed the AMC to schedule the Veteran for a medical examination. The Board's Remand requested the following opinions: Is it at least as likely as not (that is, a 50 percent probability or greater) the Veteran's headache disability had its onset in service or is otherwise related to service? Is it at least as likely as not that the Veteran's headache disability was caused by any of the Veteran's service-connected disabilities, to include any medications taken to treat those disabilities? Is it at least as likely as not that the Veteran's headache disability was aggravated (that is, permanently worsened) by the Veteran's service-connected disabilities, to include any medications taken to treat those disabilities? The Veteran received an examination addressing his headache disability in May 2013. In the May 2013 examination report, the examiner addressed the symptomatology associated with the Veteran's headaches, but the examiner did not address any of the requested opinions. In June 2013, the examiner stated that the Veteran's headaches were less likely than not incurred in or caused by the Veteran's active duty service. The rationale for this opinion, however, discussed only the relationship between the Veteran's headaches and his service-connected conditions, and not the relationship between the Veteran's headaches and his active duty service. The examiner did not provide the requested aggravation opinion, and the examiner instead opined as to whether the Veteran's active duty service aggravated his headache condition. This opinion was not requested, and the requested opinion was not provided. Thus, on remand, in accord with the Board's remand instructions, a supplemental opinion should be solicited that addresses the Board's requested opinions. Accordingly, the case is REMANDED for the following actions: 1. Copies of pertinent updated treatment records should be obtained and added to the claims folder. 2. Following completion of the above, forward the Veteran's claims file to the examiner who provided the May 2013 and June 2013 examination reports. The claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the service and post service medical records, as well as the Veteran's statements, the examiner must describe the nature of the Veteran's headache condition in detail, and offer the following opinions: a) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's headache disorder had its onset in service or is otherwise related to service? Please provide a rationale for this opinion, that is, the reasons that you have arrived at this conclusion. b) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's headache disorder was caused by any of the Veteran's service-connected disabilities (an acquired psychiatric disorder, residuals of a fractured right great toe, type II diabetes, cold sweats, irritable bowel syndrome with mild diarrhea, post-traumatic carpal tunnel syndrome, and a scar of the right great toe), to include any medications taken to treat those disabilities? Please provide a rationale for this opinion, that is, the reasons that you have arrived at this conclusion. c) Is it at least as likely as not (that is, a 50 percent probability or greater) that the Veteran's headache disorder was aggravated (that is, permanently worsened) by the Veteran's service-connected disabilities (an acquired psychiatric disorder, residuals of a fractured right great toe, diabetes, cold sweats, irritable bowel syndrome, post-traumatic carpal tunnel syndrome, and a scar of the right great toe), to include any medications taken to treat those disabilities? Please provide a rationale for this opinion, that is, the reasons that you have arrived at this conclusion. 3. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran 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 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 2002 & Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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 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).