Citation Nr: 1541650 Decision Date: 09/25/15 Archive Date: 10/02/15 DOCKET NO. 11-10 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to September 1980. This appeal to the Board of Veterans' Appeals (Board) is from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. VA scheduled the Veteran for a video hearing before a Veterans Law Judge in November 2014. The Veteran, however, did not appear for the hearing and he has not provided good cause for his failure to report or request that the hearing be rescheduled. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704 (2015). This case was remanded by the Board for further development in January 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran appeals the denial of entitlement to service connection for residuals of a head injury. In relation to his claim, the Veteran was afforded a VA examination in January 2013. The VA examiner found that the Veteran's headaches were less likely as not incurred in or caused by service. The VA examiner reasoned that the records did not support an ongoing history of headaches and that medical records note the Veteran was involved in a gang beating around 2006. The Board, however, determined in January 2015 that the January 2013 VA examiner's reasoning was inadequate and that a remand was necessary to obtain an addendum opinion addressing the etiology of any head injury residuals to include posttraumatic headaches. Contrary to the Board's remand instructions, the RO scheduled the appellant for a new examination. The RO also documented that the Veteran failed to report for that new study. Again, however, the remand directed that an addendum opinion not reexamination be secured. Further, while the RO noted that the Veteran's representative was to be sent a copy of the examination notice, there is no showing in the record that the appellant and/or his representative was given notice of the examination. Hence, the Board finds that a remand is warranted so that an addendum opinion can be obtained as originally requested in January 2015. If an addendum opinion cannot be obtained, the RO must then schedule the Veteran for a VA examination and provide him with adequate notice of the time and location thereof. The United States Court of Appeals for Veterans Claims has held that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO has not completely complied with the prior remand directives. As such, another remand is warranted. Accordingly, the case is REMANDED for the following action: 1. After obtaining and associating with the claims file any outstanding evidence, forward the Veteran's claims file, VBMS file and Virtual VA file to the medical examiner who conducted the January 2013 VA headache examination. If that examiner is unavailable an opinion should be secured from another suitably qualified physician. The purpose of the addendum is to ascertain whether it is at least as likely as not that any head injury residuals, to include posttraumatic headaches, are related to the appellant's in-service head injury. The claims file, VBMS file, Virtual VA file, and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner is to clarify whether the Veteran's posttraumatic headaches had their onset during active service or are otherwise related to any incident of service. In doing so, the examiner must specifically address and reconcile any evidence prior to 2006, specifically to include the July 1979 in-service blow to the head with reports of subsequent headache. If the January 2013 VA examiner or another examiner deems another examination is necessary, schedule the Veteran for a VA examination. A complete rationale should be provided for any opinion expressed and conclusion reached. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must provide a complete rationale for any opinion expressed. The examiner is advised that simply finding that the appellant's separation examination was normal is not a sufficient rationale for a negative opinion. The examiner must discuss the Veteran's self-reported history. While the Veteran is not competent to state that he has suffered from a specific diagnosis since service, he is competent to state that he has had headaches since service. Further, while the absence of corroborating clinical records may NOT be the determinative factor, the terms competence and credibility are not synonymous. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. Thereafter, readjudicate the issue of entitlement to service connection for residuals of a head injury. If any benefit sought remains denied, provide the Veteran and his representative a Supplemental Statement of the Case and an appropriate period of time for response. 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 2014). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).