Citation Nr: 1754031 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-14 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 30 percent for tension headaches. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, continued the noncompensable disability rating of tension headaches. During the pendency of the appeal this rating was increased to 30 percent effective June 23, 2010. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In February 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board sincerely regrets the delay, the Veteran's claim must again be remanded for further development because there has not been substantial compliance with the directives of the February 2017 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The February 2017 remand directed the RO to provide the Veteran with a new VA examination to address the severity of his tension headaches. Specifically, the examiner was directed to discuss, in narrative form, how the Veteran's headaches affect his ability to function. Following the February 2017 remand, the Veteran underwent a March 2017 VA examination. After an in-person examination, the examiner noted that the Veteran's neurological examination had not changed since he was last seen at the January 2015 VA examination. Despite this notation, the examiner found the Veteran did not have characteristic prostrating attacks. The Board finds the March 2017 VA examination did not comply with the February 2017 remand directives. In this regard, the examiner did not discuss how the Veteran's headaches affect his ability to function, The Board also finds the March 2017 VA examination to be inadequate, as the examiner merely noted that the Veteran is retired when addressing the functional impact the Veteran's headaches had on his ability to work. Although the Veteran may in fact be retired, consideration must be given to whether the disability is capable of producing severe economic inadaptability, regardless of whether the condition is actually causing such inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004) (noting that VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing"). Additionally, the March 2017 examiner's finding that the Veteran did not have characteristic prostrating attacks is contradicted by the January 2015 VA examination, as well as the Veteran's September 2016 testimony. See January 2015 VA Examination Report; September 2016 Hearing Transcript. A remand is required to comply with the February 2017 remand directives and to provide the Veteran with an adequate examination. Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA treatment records, dated from May 2017, forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the severity of his headache disorder. The claims file, to include a copy of this remand, must be made available to the VA examiner, who must note its review. The examiner should use the appropriate Disability Benefits Questionnaire (DBQ) to assess the severity of the Veteran's service-connected headache disorder. The examiner should discuss whether the Veteran's headaches result in any characteristic prostrating attacks with an estimation as to the average number of any such attacks over the past several months, or whether the headaches have resulted in very frequent completely prostrating and prolonged attacks producing severe economic inadaptability. In this regard, the examiner must specifically describe, in narrative form, the impact of the Veteran's service-connected headaches on his ability to function, to include with respect to his daily activities and employability regardless of his retirement status. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 3. Finally, after completing any other development that may be indicated, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).