Citation Nr: 1805621 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-49 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for severe cluster headaches (also claimed as head injury). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran had active service from September 1974 to February 1975, and from October 1976 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case was remanded in March 2015 and June 2016 for further development. The Veteran testified at a travel board hearing in January 2015 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends his cluster headaches are the result of inservice injuries including an alleged 30 foot fall from a pole, being struck in the head with a 2x4, or due to a fall outside an Officer's Club. A review of preservice medical records reveals that in February 1971 the Veteran was hit by a car. Following examination he was diagnosed with a skull fracture and a cerebral concussion. At the Veteran's September 1974 enlistment examination he reported a history of frequent or severe headaches. Notably, a physical examination did not yield any pertinent diagnosis with the claimant being found to have a clinically normal head and neurologic system. In January 1975, a history of an old head injury was noted, and the appellant reported of a history of headaches since a car accident. At the appellant's August 1976 reenlistment examination he was found to have a clinically normal head and neurologic system. No pertinent diagnosis was offered. In July 1977, during the Veteran's second term of active duty he fell and struck his back on a rock. An August 1978 service treatment record confirms that the claimant reported being struck in the head by a piece of lumber. In its June 2016 remand, the Board instructed the AOJ to obtain a VA examination by a neurologist on whether it is at least as likely as not that any diagnosed headache disorder is related to service. The undersigned notes that the July 2016 remand was necessitated because the March 2015 remand instruction that the appellant be examined by a neurologist had not been complied with. A VA examination was obtained in July 2017; however, once again that examination was not conducted by a neurologist as directed by the remand instructions. Rather, the examiner was a physiatrist. Physiatrists specialize in physical medicine and rehabilitation whereas neurologists specialize in disorders of the nervous system. As such, the Board must conclude that the July 2017 VA examination does not substantially comply with the terms of the June 2016 remand. As such, this case must again be remanded to obtain a VA examination conducted by neurologist, as instructed in the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) ("where ... the remand orders of the Board ... are not complied with, the Board itself errs in failing to insure compliance.) Accordingly, the case is REMANDED for the following action: 1. Forward the entire claims file in electronic records to a VA neurologist. The neurologist must review all pertinent records associated with the claims, VBMS, and Virtual VA files to include the Veteran's service treatment records, post-service medical records and lay statements. In particular, the neurologist must document consideration of the Veteran's in-service complaints of headaches, to include an August 1978 report documenting the appellant being struck in the head by a 2 x 4, as well his report of falling from a pole while inservice. Given the fact that the appellant's physical examinations at enlistment in September 1974 and August 1976 did not yield a diagnosis of a chronic headache disorder the neurologist must presume that the claimant was neurologically sound at each examination. Following a full review of all records the neurologist must opine whether it is at least as likely as not that any diagnosed headache disorder is related to service. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the neurologist 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. If additional examination is indicated, it should be scheduled in accordance with applicable procedures. The neurologist must address all relevant evidence of in-service complaints or treatment for headaches and provide a rationale explaining why any such evidence supports or does not support the claim. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 3. After completing any additional development deemed necessary, readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN 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). Department of Veterans Affairs