Citation Nr: 1803465 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-20 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial, compensable disability rating for headaches. 2. Entitlement to a total disability rating due to service-connected disabilities based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Bryan J. Held, Agent ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to April 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2010 by the Department of Veterans Affairs (VA) Regional Office (RO). The Board last considered this matter in December 2014 and March 2017, when it remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With regard to the Veteran's service-connected headaches, in March 2017, the Board determined that a July 2016 VA examiner did not provide an explanation for his conclusion that the Veteran did not suffer from characteristic prostrating attacks. Consequently, the Board remanded for an addendum opinion. In a July 2017 addendum opinion, the July 2016 VA examiner acknowledged that the Veteran described symptoms consistent with migraine headaches, which he characterized as moderate, based on the Veteran's description of symptoms. The examiner also noted that the Veteran took oral medication for his headaches. The addendum opinion, however, is silent with regard to the element of characteristic prostrating attacks. In particular, the examiner did not explain his prior conclusion that the Veteran did not suffer from such attacks. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the July 2017 addendum opinion did not substantially comply with the Board's instructions, and the Board has no choice but to again remand the matter. With regard to the issue of entitlement to a TDIU, this issue is inextricably intertwined with the issue of a higher rating for the service-connected headaches. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, a decision on the issue of a TDIU must be deferred until after the outcome of the claim for a higher initial rating for the Veteran's service-connected headaches. Finally, while on remand, the RO should obtain any outstanding VA treatment records and associate them with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Thereafter, forward the claims file, including a copy of this remand, to the individual who conducted the July 2016 examination (and authored the July 2017 addendum opinion), or another appropriately qualified clinician if that individual is unavailable, to provide an addendum opinion. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The VA clinician must address whether the Veteran's service-connected headaches manifest as, or result in, characteristic prostrating attacks. If so, the examiner must indicate the frequency of the attacks. If the examiner concludes that the Veteran does not suffer from characteristic prostrating attacks, the examiner must provide an explanation for this conclusion. The clinician is to consider lay reports from the Veteran along with pertinent medical evidence. If the clinician cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 3. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2016). _________________________________________________ Paul Sorisio 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).