Citation Nr: 18150820 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-40 828A DATE: November 16, 2018 ORDER Based on the discussion below, VA is instructed to update the Veteran’s disability records, including his rating decision codesheet, to reflect that the effective date of the grant of service connection for his headache disorder, a residual of his cervical disorder, is October 12, 1984. This correction is solely for administrative clarity, and it confers no new benefit upon the Veteran. The appeal for entitlement to service connection for a headache disorder is dismissed. REMANDED Entitlement to service connection for a sacral disorder is remanded. Whether new and material evidence has been received to reopen a claim of service connection for a thoracolumbar disorder is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and insomnia, is remanded. Entitlement a rating greater than 20 percent for a cervical disorder is remanded. Entitlement to a compensable rating for a headache disorder is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT VA service connected the Veteran's headache disorder, effective October 12, 1984. Therefore, no questions of fact or law remain before the Board for the appeal of service connection for a headache disorder. CONCLUSION OF LAW The Board does not have jurisdiction. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. §§ 20.101, 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1980 to May 1981. The claim comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of September 2013 and December 2014 of the Department of Veterans Affairs (VA). The Veteran, through his attorney, has alleged clear and unmistakable error in the June 1985 rating decision, as seen in the attorney's April 2018 letter. The Board does not have jurisdiction over this matter, so the undersigned is referring this issue to VA. Issue: Entitlement to service connection for a headache disorder In June 1985, VA granted service connection for "residuals, injury, cervical spine with associated headaches," effective October 12, 1984. The rating decision stated: "A 20% evaluation is being assigned for the cervical spine injury with reexam in one year. Headaches are considered part and parcel of the spinal injury and will be included in the veteran's diagnosis." Thus, VA expressly service connected the headaches, albeit without an explicit separate noncompensable rating, effective October 12, 1984. VA did not grant a separate rating because the headaches did not merit a compensable rating under the regulations applicable in 1985. The Veteran did not appeal VA's rating of the cervical disorder, nor did he appeal for a compensable rating for the headache disorder. In December 1987, the Veteran claimed an increased rating for the cervical disorder. In June 1988, VA denied an increased rating, with VA stating the Veteran "denies any other physical problems except his SC cervical prime headaches." This again demonstrates that VA had already service connected the headaches. On April 11, 2014, the Veteran claimed "compensation benefits for headaches." VA, given that it had previously service connected the headaches, incorrectly construed this statement as a service connection claim instead of as an increased rating claim. Unfortunately, this error carried forward when VA, in December 2014, denied service connection for headaches. Notwithstanding this, under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. This is such a case, so the Board, for the reasons above, considers this matter moot. REASONS FOR REMAND Remand is warranted for several reasons. First, the Veteran, in an October 2011 Statement in Support of Claim and a January 2012 Report of General Information, said VA treated him at the Tampa VAMC. VA obtained treatment records from this facility that date to the mid-1990s, but VA obtained no subsequent records. It is unclear, based on the timing of the Veteran's claim, whether he was referring to historical treatment records or current treatment records, especially given that in 2011 he was claiming both an increased rating and service connection. To error on the side of caution, the Board will remand to attempt to determine if records more current than the mid-1990s are available. Second, VA, in response to receiving a private nexus opinion for the Veteran's acquired psychiatric disorder claim, obtained a VA opinion dated June 28, 2017 from Dr. J.S. who stated that VA should provide the Veteran with "a comprehensive mental disorder C&P examination." VA, in turn, attempted to schedule the Veteran for this examination, but in a letter dated August 31, 2017, a representative from the James A. Haley VA Medical Center informed the Veteran that it could not reach him. Critically, the Veteran's address listed on Dr. J.S.'s opinion differs from the Veteran's address on the letter from the Haley VAMC. It appears that the Haley VAMC contacted the Veteran at a prior address, so remand is warranted to attempt to schedule a new compensation examination. Third, the undersigned dismissed the Veteran's service connection claim for headaches above. However, because VA erred in processing the claim, the undersigned has added the issue as VA should have processed it so that the Veteran is not disadvantaged by VA's error. Because the Veteran sought an increased rating, a VA compensation examination is warranted. The matters are REMANDED for the following action: 1. Attempt to obtain all VA treatment records from the Tampa VAMC from October 2010 (one year prior to the October 2011 Statement in Support of Claim). 2. The undersigned notes that the Veteran is on Social Security Administration (SSA) disability. VA attempted to obtain these records, but SSA notified VA on June 6, 2012 that it had destroyed the Veteran’s records. Notify the Veteran that VA could not obtain his SSA records and request that he submit these records if he desires that VA consider them for his claims. 3. Schedule the Veteran for a compensation examination to determine the nature and etiology of his acquired psychiatric disorder. The examiner must answer the following questions: a) Is it as least as likely as not (50 percent or greater probability) that the Veteran’s cervical disorder CAUSED his acquired psychiatric disorder, to include anxiety and insomnia. Why or why not? b) Is it as least as likely as not (50 percent or greater probability) that the Veteran’s cervical disorder AGGRAVATED his acquired psychiatric disorder, to include anxiety and insomnia. Why or why not? In answering these questions, please address the August 2015 opinion from Dr. H.H-G. and the June 2017 opinion from Dr. J.S. 4. Schedule the Veteran for a compensation examination to determine the severity of the Veteran's headache disorder. In the assessment, order the examiner, to the extent possible, to comment on the severity of the headaches from October 2011 (date of claim) to present. 5. Undertake any additional development, if warranted, based on the completion of the above actions. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel