Citation Nr: 1327880 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-08 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for chronic pain syndrome of the face and neck (residuals of atypical trigeminal neuralgia and sinus infections). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). The Veteran presented testimony before a Decision Review Officer at the RO in October 2009 and before the undersigned Veterans Law Judge (VLJ) in August 2012. Transcripts of those hearings have been associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially, the Board observes that the Veteran submitted additional evidence pertinent to his claim in June 2013 without a waiver of RO consideration. The evidence consists of a lay statement and a medical opinion which is pertinent to the Veteran's claim. Although the Board would normally refer the Veteran's claim to his representative to determine whether the Veteran wished to waive RO consideration or have his claim remanded to the RO for initial consideration, as the Board finds that remand is warranted on a separate basis, the Board will return the case to the RO for consideration in the first instance to avoid additional delay. See 38 C.F.R. § 19.31 (2012). In November 2012, the Board remanded the Veteran's claim for additional development. Specifically, the Board requested that the RO obtain private medical treatment records identified by the Veteran and obtain a VA medical opinion. In compliance with the Board's remand directives, the RO obtained the private treatment records as well as a VA medical opinion. Unfortunately, review of the medical opinion provided reveals that it does not comply with the Board's November 2012 remand directives. In that regard, the Board requested that the VA examiner provide opinions as to whether VA failed to appropriately treat the Veteran's atypical trigeminal neuralgia in a timely manner, including whether VA medical personnel should have offered other treatment opinions including the use of nerve blocks to treat the Veteran's condition at the time of initial presentation and diagnosis, and, if so, whether the Veteran's chronic pain syndrome would have been avoided or significantly alleviated. In the March 2013 VA medical opinion, the VA examiner recited the Veteran's pertinent medical history with regard to his prior complaints of chronic pain, and stated that the delay in diagnosis of trigeminal neuralgia was accounted for because the Veteran's presentation was atypical. The examiner further explained that, once the condition was diagnosed, the treatment provided was appropriate. Although the examiner described the likely explanation for why there was a delay by VA medical personnel in making the proper diagnosis of atypical trigeminal neuralgia, the examiner did not provide the requested opinion as to whether VA medical personnel exercising the degree of skill and care ordinarily required would reasonably have been expected to diagnose and treat the Veteran's trigeminal neuralgia in a more timely fashion, even with consideration of the factors which made the Veteran's trigeminal neuralgia atypical. Additionally, the VA examiner did not address the lay statements and medical treatise evidence submitted by the Veteran in the opinion provided, as requested by the Board, particularly in light of the examiner's conclusion that nerve blocks are not considered for treatment of atypical trigeminal neuralgia unless medical treatment fails due to the significant risk for complications. Accordingly, the Board must remand the Veteran's claim for additional explanation and rationale from the examiner who provided the March 2013 opinion. Additionally, in support of his claim, the Veteran submitted a private opinion in May 2013 from K. Reddy, M.D., which states that peripheral nerve blocks are "easy to perform and . . . are safe." In providing the additional explanation and rationale explained above, the VA examiner should also address this medical opinion, particularly in light of the examiner's May 2013 opinion that nerve blocks "carry significant risks for complications." Accordingly, the case is REMANDED for the following action: 1. Contact the VA examiner who provided the March 2013 VA opinion, or suitable substitute, to request additional explanation and/or rationale for the opinions provided. The Veteran's claims file and all electronic records must be made available to the examiner, and the examiner must state that this evidence has been reviewed. The examiner must provide opinions as to, and specifically state: * Whether VA exercised the degree of skill and care ordinarily required of the medical profession to diagnose and/or treat the Veteran's atypical trigeminal neuralgia in a timely manner; * Whether VA failed to exercise the degree of skill and care ordinarily required of the medical profession in not offering other treatment options, including the use of nerve blocks, to treat the Veteran's atypical trigeminal neuralgia at the time of initial presentation; and if so, * Whether the Veteran suffered additional disability, including chronic pain syndrome, which would probably have been avoided if his atypical trigeminal neuralgia had been properly diagnosed and treated? The examiner must consider and discuss all pertinent evidence of record, to specifically include the submitted treatise evidence, medical evidence, lay evidence, and the May 2013 opinion from K. Reddy, M.D. All opinions provided must include an explanation of the bases for the opinion. If the examiner cannot provide the requested opinion(s) without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. Thereafter, the RO should readjudicate the issue on appeal, with consideration of the evidence received since the last supplemental statement of the case. If the benefit sought remains denied, the RO should issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals 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).