Citation Nr: 1333570 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-42 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for chronic headaches. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to August 2004. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2008 rating decision of the VA Regional Office in Huntington, West Virginia that, among other things, denied service connection for headaches. In July and December 2011, the Board remanded the issue of entitlement to service connection for headaches. Following review of the record, 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 Unfortunately, the Board finds that further development of the issue of entitlement to service connection for headaches is warranted prior to disposition on appeal. The Veteran underwent a VA examination in July 2011 for headaches following which the examiner opined that headaches were most likely secondary to chronic sinusitis, and not associated with service-connected PTSD, and that they were less likely than not related to service. In December 2011 the Board pointed out that although the examiner provided extensive rationale for his opinion, it appeared that the opinion was partly based on an inaccurate factual premise. The Board stated that contrary to what the examiner noted in his opinion, service treatment records did indeed reflect that the Veteran was seen in February 2002 with complaints of constant temporal headaches a month's duration with occasional pulsating pain and pain radiating down the back of his neck. The case was remanded for the examiner to review all of the evidence and to reconsider his opinion in light of evidence of treatment for headaches during service. In a December 2011 supplementary opinion, the same VA examiner indicated that evidence of treatment for headaches in service had apparently been overlooked. He reviewed the claims folder and opined that "It is at least as likely as not the Veteran's current headache disorder is related to complaints of headaches during active military service." The Board observes that in the ensuing rationale for the opinion, the examiner reiterated and expounded upon the evidence and findings cited in the prior examination report and concluded that "it is at least as likely as not that his headaches, which began during deployment, are the result of chronic sinusitis rather than being secondary to his service connected PTSD." Despite the examiner's attempt to clarify the initial opinion, the conclusions and rationale offered are contradictory and substantially flawed. There is an incongruity between the examiner's findings that headaches are as likely as not related to service, and that headaches are related to sinusitis during active duty. In this respect, service treatment records do not record a diagnosis of sinusitis, nor is the appellant service connected for sinusitis. The Board is thus of the opinion that the claims folder should be returned to the examiner for clarification and to address the inconsistencies. Accordingly, the case is REMANDED for the following actions: 1. Provide the December 2011 VA examiner access to the claims folder, to include Virtual VA. If that examiner is unavailable, forward the record to a similarly qualified examiner for review. If it is determined that additional examination is warranted to respond to the following questions, an examination should be scheduled. After a thorough review of the record and attendant documentation, the examiner must opine with supporting rationale as to whether it is at least as likely as not (50 percent probability or better): a) The service treatment records support a finding that the Veteran had sinusitis during active duty. Why or why not? b) If sinusitis is not shown in service, whether the evidence still supports the opinion that headaches in service may reasonably be related to current headache symptomatology. Why or why not? 2. The RO must ensure that the medical report complies with this remand and its instructions. If the report is insufficient, or if a requested action is not taken or is deficient, it should be returned for correction. See Stegall v. West, 11 Vet.App. 268, 271 (1998). 3. After taking any further development deemed appropriate, readjudicate the issue. If the benefit is not granted, provide a supplemental statement of the case to the Veteran and his representative before the case is returned to the Board. 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. 2013). ____________________________________________ DEREK R. BROWN 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) (2013).