Citation Nr: 1603157 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 06-38 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for post-traumatic headaches prior to March 30, 2012. 2. Entitlement to an initial rating in excess of 30 percent for post-traumatic headaches beginning March 30, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from September 1954 to October 1957. This appeal to the Board of Veterans' Appeals (Board) originates from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, the Veteran and his wife testified during a Travel Board hearing before the undersigned, a transcript of this hearing is of record. In April 2012, the Board issued a decision that denied the claim. The Veteran appealed the decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). Following the filing of a Joint Motion for Remand (JMR), the Court issued an Order in April 2013 that granted the JMR and remanded the file back to the Board for proceedings consistent with the JMR. While still in appellate status, the RO issued a July 2013 rating decision that granted a 30 percent rating, effective March 30, 2012. This action resulted in an initial staged ratings, as is reflected on the title page of this decision. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's April 2012 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ (Veterans Law Judge) that conducted the May 2010 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board (although a new decision would be necessitated as a result of the JMR). The Veteran declined the opportunity to appear at a new hearing and requested that the Board proceed with the appeal. Thereafter, a June 2014 Board decision denied the claim, which the Veteran also appealed to the Court. The Court issued an August 2015 Memorandum Decision that vacated the June 2014 Board decision and remanded the case for further proceedings consistent with the opinion. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system and records stored in Virtual VA were also considered. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In its August 2015 Memorandum Decision, the Court essentially found that neither the 2006 nor the 2010 VA neurological examiners had provided a reasoned medical explanation for their conclusion that the Veteran's headaches were not prostrating. The Court thereby determined that the Board's reliance on those opinions required remand. See Hicks v. Brown, 8 Vet.App. 417, 421(1995) (Board reliance on inadequate examination frustrates judicial review). To comply with the Court's decision, the Board will remand the matter in order to obtain an adequate opinion regarding the prostrating nature of the Veteran's headaches. To achieve this, a retrospective opinion is needed. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). VA treatment records since June 2013 should also be added to the 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). Expedited handling is requested.) 1. Obtain and associate with the claims file, copies of VA treatment records since June 2013. 2. Then arrange for an appropriate VA physician to review the Veteran's VBMS and Virtual VA files; this review should be noted in the report. a) Based on a thorough review of the record, the physician should opine whether the Veteran at least as likely as not (50 percent or greater probability) had prostrating headaches attacks from August 22, 2005 to March 30, 2012. b) If the Veteran had prostrating headaches from August 22, 2005 to March 30, 2012, provide an estimate as to the frequency and length of duration of any such attacks, such as averaging once a month over several months or once every two months over several months. c) Was there any time since August 22, 2005 through the present that the Veteran's headache disorder was manifested (best approximated) by very frequent and completely prostrating and prolonged attacks? If so, please identify the time period and comment on how these attacks would impact or interfere with the Veteran's ability to function at work. d) The examiner should provide a complete rationale for all opinions provided with references to the lay or medical evidence as needed. If he or she is unable to provide an opinion without resorting to speculation or conjecture, he or she should so state and explain the reason therefor. Example of reasons include because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies. 3. Afterwards, review the claims file to ensure that the aforementioned development and remand instructions have been completed. Any noncompliance found should be corrected with the appropriate development. 4. Then readjudicate the claims based on all of the evidence of record. If the benefit sough remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford a reasonable opportunity to respond before returning the case to the Board for further appellate review, if appropriate. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. HERMAN 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) (2015).