Citation Nr: 1745523 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 13-00 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable initial evaluation for right tibial strain. 2. Entitlement to a compensable initial evaluation for left tibial strain. 3. Entitlement to a compensable evaluation for dysmenorrhea and irregular menstrual cycle. 4. Entitlement to an evaluation in excess of 30 percent for acute maxillary sinusitis, recurrent, with headaches, to include whether a separate compensable evaluation is warranted for headaches. 5. Entitlement to an effective date prior to March 22, 2010, for the grant of service connection for acute maxillary sinusitis, to include as based upon clear and unmistakable error in the assignment of the effective date in an August 2010 rating decision. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from September 1992 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012, October 2012, February 2013 and March 2017 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). In a rating decision dated in October 2012 the RO granted separate evaluations for the Veteran's right and left tibial strains. In a rating decision dated in March 2017 the RO granted entitlement to service connection for dysmenorrhea and irregular menstrual cycle and headaches as a symptom of acute maxillary sinusitis. Thereafter, the Veteran perfected an appeal of initial evaluation assigned for dysmenorrhea and irregular menstrual cycle. Jurisdiction over the Veteran's case is currently with the Atlanta, Georgia RO. In August 2014, the Veteran presented testimony at a hearing before the undersigned. The transcript of this hearing is associated with the claims file. The case was previously before the Board in February 2015 when it was remanded for additional development. Initially the Veteran requested a hearing before a Veterans Law Judge with regard to the issue of entitlement to a higher initial evaluation for dysmenorrhea and irregular menstrual cycle. However, in a statement received in May 2017 the Veteran withdrew her request for a hearing. The issue of entitlement to an evaluation in excess of 30 percent for acute maxillary sinusitis, recurrent, with headaches is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the period on appeal the Veteran's right tibial strain manifested symptoms of pain involving the shin regions of the lower leg, pain on walking, standing, and at rest, and tenderness on palpation. The right tibial strain has not manifested any impairment of the range of motion of the knees or ankles. 2. During the period on appeal the Veteran's left tibial strain manifested symptoms of pain involving the shin regions of the lower leg, pain on walking, standing, and at rest, and tenderness on palpation. The left tibial strain has not manifested any impairment of the range of motion of the knees or ankles. 3. During the period on appeal the Veteran's dysmenorrhea and irregular menstrual cycle manifested pelvic pain and discomfort and use of over the counter medication for symptom treatment. The disability did not manifest continuous treatment or symptoms not controlled by continuous treatment. 4. The August 2010 rating decision that granted service connection for acute maxillary sinusitis and assigned an effective date of March 22, 2010, was reasonably supported by evidence then of record, and the record does not demonstrate that the RO incorrectly applied the statutory or regulatory provisions extant at that time, or that the correct facts, as known at that time, were not considered. 5. The August 2010 rating decision is final as to the assignment of an effective date of March 22, 2010, for the award of service connection for acute maxillary sinusitis, and review of the claims file does not reveal any claim for service connection for a sinus disorder prior to March 22, 2010. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, and no higher, for right tibial strain have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2016). 2. The criteria for an initial disability rating of 10 percent, and no higher, for left tibial strain have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2016). 3. The criteria for an initial 10 percent rating, and no higher, for dysmenorrhea and irregular menstrual cycle, have met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.116, Diagnostic Code 7629 (2016). 4. The August 2010 rating decision that was not clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.105 (2016). 5. The Veteran's claim seeking an effective date prior to March 22, 2010, for the award of service connection for acute maxillary sinusitis is denied. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 20.101 (2016); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Higher Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Tibial Strain The Veteran is assigned a noncompensable rating for right and left tibial strain pursuant to Diagnostic Code 5262. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating, with moderate knee or ankle disability warrants a 20 percent rating, and with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion, requiring a brace warrants a 40 percent rating. 38 C.F.R. § 4.71a. The words "slight," "moderate, "and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in December 2011. The Veteran was diagnosed with bilateral tibial strain. She reported noting pain involving both shins and lower legs few times a week. She noted pain with walking, standing or at rest. The Veteran had stress fractures of the lower extremity. There was tenderness to palpation noted involving medial aspects of the bilateral lower legs. X-ray showed unremarkable radiographs of the tibiae/fibulae. In February 2015 the Veteran was noted to be diagnosed with bilateral shin medial tibial stress syndrome (MTSS) as well as knee patellofemoral pain syndrome. In a statement dated in February 2015 the Veteran reported that bilateral tibia strains and severe pain was causing moderate to severe pain in her left and right knees and ankles. In October 2016 x-rays were noted to reveal no evidence for fracture or other significant bone or soft tissue abnormality of the right and left tibia/fibula. The impression was soft tissues and bony structures were radiographically within normal limits. The Veteran was afforded a VA examination in October 2016. The Veteran was diagnosed with bilateral tibial strains. It was noted that the condition had gotten worse and had caused knee pain. The Veteran was limited in exercising ability and prolonged standing and walking due to the disorder. The Veteran was noted to have had "shin splints." The condition did not affect the range of motion of the knees or ankles and the symptoms were described as tenderness bilateral medial and anterior tibial region. Entitlement to a 10 percent evaluation for both the right and left tibial strains is warranted. During the entire period on appear the Veteran has been noted to complain of pain involving the shin regions of the lower leg. The Veteran has reported pain on walking, standing, and at rest. Physical examination has revealed tenderness to palpation. As such, the Board finds that the symptoms associated with tibial strains manifest slight impairment. However, the Veteran's right and left tibial strains have not manifested any impairment of the range of motion of the knees or ankles. As such, the Board finds that the manifestations associated with tibial strains are analogous with no more than malunion of the tibia and fibula with slight knee or ankle disability. Therefore, an evaluation of 10 percent, and no higher, for right tibial strain and an evaluation of 10 percent, and no higher, for left tibial strain, is granted. B. Dysmenorrhea and Irregular Menstrual Cycle The Veteran is assigned a noncompensable evaluation for dysmenorrhea and irregular menstrual cycle pursuant to Diagnostic Code 7699-7613. See 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. See 38 C.F.R. § 4.27. Diagnostic Code 7613 pertains to disease, injury, or adhesions of the uterus. Pursuant to the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs (diagnostic codes 7610 through 7615) symptoms not controlled by continuous treatment warrant a 30 percent rating. Symptoms that require continuous treatment warrant a 10 percent rating. Symptoms that do not require continuous treatment are assigned a noncompensable rating. 38 C.F.R. § 4.116, Diagnostic Code 7613. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532 (1993). Given the symptoms identified, the Board finds that consideration of Diagnostic Code 7629 is appropriate. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Under Diagnostic Code 7629, regarding endometriosis, an evaluation of 50 percent is warranted with lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms; 30 percent is warranted with pelvic pain or heavy or irregular bleeding not controlled by treatment; and a 10 percent is warranted for pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. 38 C.F.R. § 4.116. In June 2011 the Veteran was diagnosed with dysmenorrhea. The severity was described as severe. Menses were regular and the flow was normal. In November 2011 the Veteran reported that an outside provider prescribed birth control pills but they were too strong and so she stopped taking. She had some heavier periods than usual and the last one lasted 2 weeks. The Veteran reported irregular menstrual cycle. The Veteran was afforded a VA examination in December 2011. The Veteran was diagnosed with dysmenorrhea and irregular menstrual cycle. The Veteran reported noting lower abdominal and pelvic discomfort a couple of times a month that she described as sharp and stated that the pain lasted more than a couple of days. The pain occurred around her menstrual cycle. She reported irregular menstrual cycles that occurred every 6 to 8 weeks with occasionally skipping cycles. She reported heavy and painful bleeding. The cycles lasted 5 to 10 days. She stated her last gynecological examination was done in April 2011 with a private medical provider. The Veteran stated that the pelvic exam and the pap smears were normal. She reported being prescribed a birth control pill which did not help. She was noted to take Pamprin and Motrin for the pain. Symptoms of the gynecological issues were noted to be intermittent pain, severe pain, irregular menstruation, and heavy and painful menstrual cycles. There was no treatment for symptoms/findings for any diseases, injuries and/or adhesions of the reproductive organs. The Veteran required Motrin and Pamprin for pelvic pain every 4 to 6 hours daily with menstrual cycles. The symptoms did not require continuous treatment. In January 2012 the Veteran reported pelvic pain daily and not just around menstrual cycle. The Veteran was afforded a VA examination in October 2016. The Veteran was diagnosed with dysmenorrhea. The Veteran reported having had heavy bleeding and clots with irregular bleeding and painful cramps with menses. She stated the condition had gotten worse. The Veteran reported symptoms of moderate pain and pelvic pressure. The Veteran had not had treatment for symptoms/findings for any disease, injuries and/or adhesions of the reproductive organs. The Veteran did not require treatment or medications for symptoms related to reproductive tract conditions. In a statement dated in March 2017, a private provider noted that the Veteran's dysmenorrhea affected her military service because her symptoms were not controlled by her medications and occasionally she had to endure the pain with personal leave and bed rest. The Veteran submitted a gynecological conditions disability benefits questionnaire completed by her private provider in April 2017. The Veteran reported that treatment does not control the symptoms. The Veteran was noted to have symptoms of intermittent pain, constant pain, severe pain, pelvic pressure, irregular menstruation, frequent or continuous menstrual disturbances, and dysmenorrhea. The examiner noted that the Veteran had not had treatment for symptoms/findings for any disease, injuries and/or adhesions of the reproductive organs. The Veteran did not currently require treatment or medications for symptoms related to reproductive tract conditions. It was noted that symptoms were not controlled by continuous treatment for dysmenorrhea. The examiner noted that the Veteran has been diagnosed with dysmenorrhea which consisted of severe pelvic and abdominal pain, heavy menstrual irregular bleeding, and the symptoms are not controlled by treatment/medicine. It was noted that the condition impacted the Veteran's ability to work. The Veteran was noted to not be able to work and perform job duties regularly because of the frequent pain and heavy bleeding. The Veteran missed work more than several times a month due to severe pain symptoms not being controlled by treatment and medication. Initially, the Board finds that the Veteran's disability is better evaluated, by analogy, under Diagnostic Code 7629 as the criteria account for pelvic pain and irregular bleeding. During the entire period on appeal the Veteran's dysmenorrhea and irregular menstrual cycle manifested symptoms of pelvic pain or discomfort and irregular menstrual cycle. The Veteran was noted to miss work due to her symptoms. Although the evidence does not reveal continuous treatment for the condition, the Veteran was prescribed a birth control pill but discontinued because she reported that the medication was too strong. In addition, the Veteran noted use of over the counter medication to treat the symptoms. As such, the Board finds that the symptoms more nearly approximate an evaluation of 10 percent under Diagnostic Code 7629. The record does not reveal that the Veteran's disability is not controlled by continuous treatment or that she experiences any bowel or bladder symptoms. As such, the criteria for an evaluation in excess of 10 percent have not been met. Therefore, entitlement to an evaluation of 10 percent, and no higher, for dysmenorrhea and irregular menstrual cycle is granted. C. Other Considerations The Board has also considered the Veteran's lay statements that her disabilities are worse than currently evaluated. Layno v. Brown, 6 Vet. App. 465 (1994). However, she is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. III. Effective Date The Veteran seeks an effective date prior to March 22, 2010, for the grant of service connection for acute maxillary sinusitis. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency, and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(2). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. An appellant can only attempt to overcome finality of the decision by a request for revision based CUE, or by a claim to reopen based upon new and material evidence. After a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Under the provisions of 38 C.F.R. § 3.105 (a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). However, if the evidence establishes CUE, the prior decision will be reversed and amended. A determination that a prior determination involved CUE involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). A valid claim of CUE requires more than a disagreement as to how the facts were weighed or evaluated. Crippen v. Brown, 9 Vet. App. 412 (1996). Mere disagreement with how the RO evaluated the facts is inadequate to raise the claim of CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). A decision regarding CUE must be made on the basis of the law and evidence at the time of the decision at issue. Porter v. Brown, 5 Vet. App. 233 (1993). Review of the claims file reveals that a claim for service connection for service connection for sinus problems was received on March 22, 2010. In the statement, the Veteran reported that she wished to reopen her clam. Also received on March 22, 2010, was a statement, dated May 5, 2005, indicating that the Veteran "would like to submit another request for a claim for my sinusitis pain, headaches, and yellow discharge, and [nauseous] feeling." The statement also noted that she had submitted a request in January 1999. The Veteran was granted entitlement to service connection for acute maxillary sinusitis in an August 2010 RO rating decision and assigned an effective date of March 22, 2010. The Veteran filed a notice of disagreement with the August 2010 rating decision in March 2011. However, the statement does not discuss the effective date awarded. Thereafter, in a statement dated in August 2011 and received in September 2011 the Veteran withdrew the appeal. In a statement received in December 2012 the Veteran disagreed with the effective date assigned for acute maxillary sinusitis. The Veteran reported that she was initially diagnosed with the condition in March 2000. The Veteran further reported that she filed claims for allergic rhinitis and sinusitis in December 1997, January 1998, March 2000, and February 2003. At the hearing before the undersigned the Veteran argued that the August 2010 rating decision granting service connection and assigning the effective date was the product of clear and unmistakable error. The Veteran presented two theories: that she filed a claim in approximately 2005 that was not acted upon and that when she disagreed with the August 2010 assignment of the effective date, she was told by a VA employee to withdraw the claim. The Board finds that the August 2010 RO rating decision is not the product of CUE and, therefore, revision is not warranted. Although the Veteran has reported that claims were filed prior to the effective date assigned and submitted on March 22, 2010, a statement dated in May 2005, review of the claims file does not reveal any unacted upon claim for service connection for a sinus disability prior to that received on March 22, 2010. As such, the determination the effective date of March 22, 2010, in the August 2010 rating decision were based upon the correct facts, as they were known at the time. In addition, as March 22, 2010, is the date of claim, that date represents the earliest possible effective date for the grant of service connection. See 38 C.F.R. § 3.400. Therefore, the regulatory provisions were correctly applied. As such, the Board finds that the August 2010 rating decision assigning an effective date of March 22, 2010, for the grant of service connection for acute maxillary sinusitis was not the product of CUE. Entitlement to an effective date prior to March 22, 2010, for service connection for acute maxillary sinusitis is not warranted. As noted above, the Veteran was granted entitlement to service connection for acute maxillary sinusitis and assigned an effective date of March 22, 2010, in an August 2010 rating decision. Although the Veteran filed a NOD with regard to this decision, the NOD does not discuss a disagreement with the effective date assigned. A response letter from the RO dated in March 2011 indicates that the written disagreement for increased evaluation for acute maxillary sinusitis, recurrent with allergic rhinitis, was received. As such, a NOD with regard to the effective date was not filed. Even assuming that this NOD encompasses an appeal of the effective date assigned, the Veteran withdrew her NOD in a statement received in September 2011. The Board acknowledges the Veteran's statement that she was told to withdraw here appeal; however, review of the claims file does not reveal any indication that the Veteran was advised to withdraw the appeal. However, even assuming that the Veteran understood information she was provided as advising this course of action, VA is not bound by erroneous advice dispensed by government personnel. Shields v. Brown, 8 Vet. App. 346 (1995); McTighe v. Brown, 7 Vet. App. 29 (1994). As the subsequent request for an earlier effective date, received in December 2012, represents an impermissible freestanding claim for an earlier effective date. Even assuming arguendo that the NOD was not withdrawn or that the withdrawal was improper, there is no document received by VA prior to March 22, 2010, representing a claim for service connection for a sinus disorder. As such, entitlement to an earlier effective date is denied. ORDER An initial evaluation of 10 percent, and no higher, for right tibial strain, is granted subject to controlling regulations applicable to the payment of monetary benefits. An initial evaluation of 10 percent, and no higher, for left tibial strain, is granted subject to controlling regulations applicable to the payment of monetary benefits. An initial evaluation of 10 percent, and no higher, for dysmenorrhea and irregular menstrual cycle, is granted subject to controlling regulations applicable to the payment of monetary benefits. An effective date prior to March 22, 2010, for the grant of service connection for acute maxillary sinusitis, to include as based upon clear and unmistakable error in the assignment of the effective date in an August 2010 rating decision, is denied. REMAND In the March 2017 rating decision, the RO reopened a claim of service connection for headaches, granted service connection and included the headache disability with the already service-connected acute maxillary sinusitis. In that decision, the RO considered an October 2016 VA examination in which the examiner commented that there was nothing in the medical records to support the diagnosis of migraine, tension or cluster headaches, nor was there any documentation of the use of medications used to treat headaches. The examiner noted that upon separation from service the Veteran was documented having frequent and severe headaches and also noted sinusitis and hay fever symptoms as no other etiology for headaches was noted and migraine history was noted to be negative. The examiner did not provide an opinion as to whether the headaches could be directly related to that service history. The Veteran's initial claim of service connection for headaches included her claim that they started after a motor vehicle accident in service; she did not indicate at that time that the headaches were related to sinusitis. The October 2016 examination relied upon by the RO is inadequate because it does not contemplate subsequent treatment records that diagnose and discuss migraine and cluster headaches. See, e.g., April 2017. Thus, it is possible that the Veteran's headaches are a disability distinct from the service-connected sinusitis and should be evaluated separately. A new examination is needed. On remand, attempt to obtain and associate with the claims file VA treatment records regarding the Veteran dated since November 2016. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain complete VA treatment records pertaining to the Veteran, including those dated since November 2016. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the etiology of any current headache disability that is separate from acute sinusitis. The claims file and copies of all pertinent records must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Based on the examination and review of the record, the examiner should specifically indicate whether the Veteran has a headache disability that is distinct from the sinusitis. If the Veteran is diagnosed with a separate headache disability, it is at least as likely as not that the headaches are related to service, to include the motor vehicle accident? The examiner should comment on the findings of the prior examinations and comment upon the diagnosis of migraine headaches. 3. Then readjudicate the Veteran's claim currently on appeal. If any benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant 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 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs