Citation Nr: 1330615 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 07-13 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for headache disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from November 1996 to December 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that in relevant part denied entitlement to service connection for headache disorder. This case was before the Board in July 2011 when it was remanded for additional development. It has since been returned to the Board for further appellate action. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on her part. REMAND The Veteran contends that her current headache disorder began during active service. Service treatment records show that she sought treatment for headache problems at least six times during her period of service, and she was variously diagnosed with headaches, tension headaches and migraines. Post-service treatment records in 2003, within a year of separation from service, indicated complaints of headaches, as well as diagnoses of daily tension headaches and monthly migraine headaches. These records do not contain an etiology of the Veteran's headache disorder, but a January 2005 private record shows the Veteran's nonservice-connected oromandibular dystonia resulted in significant headaches. The Board previously reviewed the file and determined that the January 2004 QTC fee-based general examination was inadequate for purpose of adjudicating the claim. In this regard, although the examiner found that there was no evidence of headaches present on examination, the requirement for a current disability is satisfied if there is evidence of the disability at any time since the Veteran's claim in August 2003. McClain v. Nicholson, 21 Vet. App. 319 (2008). The Board therefore remanded the case in July 2011 for another VA examination in order to clarify the current nature and likely etiology of any headache disorder present during the period of the claim. Subsequent to the Board's remand, a November 2011 Report of Contact states the Veteran had been scheduled for a Compensation and Pension (C&P) examination at the Washington VA Medical Center (VAMC) but she failed to report; the Report of Contact also states the Veteran was sent correspondence informing her of the consequences of a missed examination but the Veteran did not respond. The AMC thereupon readjudicated the case by a Supplemental Statement of the Case (SSOC) in May 2012, citing the Veteran's failure to report for examination. The Veteran's representative submitted a statement in November 2012 asserting the Veteran did not receive any notice of a scheduled examination. The representative also pointed out that the aforementioned letter, notation, and most recent May 2012 SSOC do not specify a date or time for such examination. Because the regular practices of VA do not include making a hard copy of the veteran's notice of his/her scheduled VA examination, the absence of such copy from the claims file cannot be used as evidence to demonstrate that notice was not mailed. Kyhn v. Shinseki, 23 Vet. App. 335, 339 (2010). However, because in this case the Veteran's representative affirmatively asserts that the Veteran did not receive notice of examination, and because the file does not indicate where or when such examination was to have been performed, the Board finds the RO or AMC must make another effort to afford the Veteran an examination as required by the earlier remand. See Stegall v. West, 11 Vet. App. 268 (1998 Accordingly, the case is REMANDED for the following actions: 1. The RO or AMC should arrange for the Veteran to be afforded a VA examination by an examiner with appropriate expertise to determine the current nature and etiology of any headache disorder present during the period of the appeal, to include the December 2003 diagnoses of daily tension headaches and monthly migraine headaches. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. All studies or tests deemed necessary should be accomplished. The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed headache disorder was first manifest during service or is otherwise related to service. The examiner should comment on the following: * Service treatment records that show complaints of headaches in service, and diagnoses of headaches, tension headaches, and migraine headaches; * the Veteran's assertions that she has experienced headaches since service; * the December 2003 private treatment record that notes diagnoses of daily tension headaches and monthly migraine headaches; and * the January 2005 private treatment record that indicates that the Veteran's nonservice-connected oromandibular dystonia resulted in significant headaches. A full rationale is requested for all opinions expressed by the examiner. If the examiner is unable to provide a requested opinion, he or she should explain why. 3. The RO or AMC should review the claims folder to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. 4. Then, the claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or AMC should issue a supplemental statement of the case and afford the Veteran and her representative the appropriate opportunity for response before the claims files are returned to the Board for further appellate action. By this remand the Board intimates no opinion in regard to any final outcome warranted. The Veteran 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). _________________________________________________ JOHN H. NILON Acting 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).