Citation Nr: 1332846 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 11-05 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a chronic headache disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tahirih S. Samadani INTRODUCTION The Veteran served on active duty from November 1974 to February 1976. This case come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues that were previously on appeal before the Board are explained in detail in the July 2013 Board remand and will not be reiterated in this decision. When this case was most recently before the Board in July 2013, it was remanded for further development. It is now before the Board for further appellate action. As stated in the July 2013 Board remand, the Veteran raised the issues of entitlement to service connection for gall bladder removal, "urinary tract-stomach and intestines removed," including scars and loss of feeling due to the operation, diabetes mellitus, Type II, and subacute peripheral neuropathy, to include as appropriate, whether new and material evidence has been submitted to reopen previously denied claims. See Veteran's statement dated in March 2013. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ) since he filed his statement. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Also, the issue of service connection for a cervical spine disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The United States Court of Appeals for Veteran Claims has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. See Stegall v. West, 11 Vet. App. 268 (1998). As such, a remand is required in this case. In the July 2013 remand, the Board requested that the examiner provide an opinion as to whether the Veteran's headache disability clearly and unmistakably pre-existed service. If it did not pre-exist service, the examiner was asked to provide an opinion as to whether it was at least as likely as not that the Veteran's current headache disorder began in or is related to active service. In the August 2013 opinion, the examiner checked the box indicating that the Veteran's headache disorder was at least as likely as not (a 50 percent or greater possibility) caused by the claimed in-service injury, event or illness. Despite this, his rationale in question 3 (c) documented a negative history. For instance, the examiner noted that the induction examination of September 1974 was negative, the February 1976 exam for administrative discharge was negative, and the Veteran's current headaches were different and likely than not secondary to cervical strain. The examiner also noted that his headaches did not pre-exist active service. The claims file should be returned to the August 2013 examiner for clarification. The Board acknowledges that the examiner opined that the Veteran's headaches did not pre-exist service, but clarification is needed. The examiner should specifically indicate whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's headache disability pre-existed active service. In addition, the examiner has indicated that the Veteran's current headaches are likely than not secondary to his cervical spine strain. The Veteran has alleged that his neck pain is due to the motor vehicle accident that he had during his military service. In a March 1984 statement, the Veteran explained that he hit his head on the passenger window during a motor vehicle accident during service and had pain up to his neck after getting out of the car. During the April 2013 examination, he reported that he had cervical sprain following the car accident along with headaches. He also indicated that he had neck pain the day before followed by a headache. The Board finds that the evidence raises the issue of a claim for service connection for his neck. The Veteran has claimed in the past that his headaches are due to head injury during service. A Veteran may articulate one theory of service connection, but he is not limited to that theory. See Delisio v. Shinseki, 25 Vet. App. 45, 54 (2011). As indicated above, the issue of service connection for cervical spine disability is referred to the RO for appropriate action. The Veteran is claiming his chronic headache disability is secondary to his cervical spine strain. The August 2013 examiner has also noted this to be true. Therefore, the Board must remand the issue of entitlement to service connection for chronic headaches as it is inextricably intertwined with the issue of service connection for a cervical spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other in the prescribed degree should not be subject to piecemeal decision-making or appellate litigation). Additionally, the Board should take this opportunity to obtain any recent VA treatment records that have not yet been associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all recent pertinent VA records and associate them with the claims file. 2. Obtain an addendum opinion from the examiner who provided the August 2013 addendum. The examiner should review the August 2013 addendum opinion and clarify his opinion as to question 3 concerning whether the Veteran's headaches were at least as likely as not (50 percent or greater probability) related to the Veteran's military service. Please provide a complete explanation for the opinion. The Board acknowledges that the examiner said that the Veteran's headaches did not pre-exist service, but the examiner is asked to address (using this language) whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran's headache disability pre-existed active service. Please provide a complete explanation for the opinion. If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing disease WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. The claims file and a copy of this entire remand should be provided to the examiner. 3. Following the completion of the above-requested development, readjudicate the claim. If the claim remains denied, he and his representative must be provided a supplemental statement of the case and an opportunity to respond. Thereafter, the case should be returned to the Board, if otherwise in order. (NOTE THAT THE ISSUE OF SERVICE CONNECTION FOR CHRONIC HEADACHES IS INTERTWINED WITH THE ISSUE OF SERVICE CONNECTION FOR THE CERVICAL SPINE DISABILITY AND CAN NOT BE ADJUDICATED BY THE BOARD UNTIL THE AOJ ADJUDICATES THE ISSUE OF SERVICE CONNECTION FOR THE CERVICAL SPINE DISABILITY WHICH WAS REFERRED TO THE AOJ IN THE INTRODUCTION). The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ S. S. TOTH 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).