Citation Nr: 1806786 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-26 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of a head injury with headaches. 2. Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran had active service from October 1968 to March 1970. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. The case was remanded by the Board for further development in May 2017. In the August 2012 rating decision, VA continued a 10 percent rating for head injury residuals. VA also granted a separate rating for hypertension and service connection for a cognitive disorder due to a traumatic brain injury. The Veteran's cognitive disorder is rated with his service-connected posttraumatic stress disorder as 70 percent disabling. Significantly, the appellant's September 2012 notice of disagreement disagreed only with the 10 percent rating for "headaches which are migraines," and the noncompensable rating for hypertension. He has not at any time indicated any disagreement with the evaluation assigned for posttraumatic stress disorder with a cognitive disorder. Hence, only the ratings assigned for a head injury with residual headaches and hypertension are under appeal at this time. Other head injury residuals, including any psychiatric and cognitive symptoms associated with his traumatic brain injury, will not be addressed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded these issues in May 2017 in order to obtain VA treatment records and new and more thorough VA examinations to assess the Veteran's residuals of a head injury with headaches and hypertension. It was requested that a VA examination be held to assess the current severity of the Veteran's hypertension. The examiner was asked to "specifically address the Veteran's reports of having symptoms of dizziness and light-headedness caused by his hypertension, and whether those complaints are at least as likely as not associated with his service connected hypertension." A VA examination was held in August 2017 and the examiner provided an opinion stating "There are no findings in medical records reviewed to ascribe such service correlation. No records noted while in service or period after separation from service (for 4 decades)." This opinion appears to be addressing whether the Veteran's hypertension is related to his military service. That is not the question at issue. The Veteran is already service-connected for hypertension. Hence, the examiner failed to address the Board's question regarding whether the Veteran has any additional symptoms of dizziness associated with his service-connected hypertension. This issue therefore must be remanded in order to obtain an adequate addendum medical opinion that appropriately responds to the question asked. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also requested that the examiner assess the current severity of the Veteran's headaches, including a discussion of the frequency and economic impact of any prostrating attacks due to headaches. The examiner was also asked to state whether the Veteran's disorder was "capable of producing" severe economic inadaptability, even if the Veteran did not have prostrating attacks which were productive of severe economic inadaptability. The examiner acknowledged that the Veteran reported having daily headaches that had worsened in the past 2 to 3 years, but he then wrote that "There are no findings in medical records reviewed to indicate severe prostrating headaches causing economic impact on the claimant (particularly in light of claims of worsened condition over past 2-3 years)." The examiner provided no explanation for this conclusion, did not address whether the Veteran's condition was capable of producing severe economic impact, and did not discuss the Veteran's medical records which record frequent complaints of severe headaches which often required lying down for several hours. In April 2017, for example, the Veteran reported having daily migraines which lasted several hours and which were worsened by light, sounds, lack of sleep, and anxiety. Given these facts, the Board finds that there was not substantial compliance with the questions presented in the May 2017 remand, and this issue must also be remanded to obtain a new VA examination that adequately answers these questions. The Board also notes that in September 2013, the Veteran's physician discussed the Veteran's reports of having dizziness and headaches for years, and stated that the dizziness seemed to be related to the headaches. The Board also requests that the examiner discuss whether the Veteran has any secondary symptoms related to his headache disorder, such as dizziness. In addition to receiving VA medical care, the Veteran's VA treatment records indicate that the Veteran may also receive medical care from a private provider. The Veteran should be requested to provide these records or authorization to obtain these records, as they may be relevant to the claims on appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send to the Veteran a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records of treatment related to head injury, headaches, or hypertension. 2. Obtain all outstanding, pertinent VA treatment records since May 2017. All records received should be associated with the claims file. If the AOJ cannot locate any VA or identified private records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a VA neurological examination to determine the severity of any residuals of a head injury with headaches. The examiner must be provided access to all files in Virtual VA and VBMS. The examiner must specify in the examination report that all files have been reviewed. Following the examination, the examiner must address the following: a) Perform all necessary tests to determine the current severity of the Veteran's headaches, to include discussion of the frequency of any characteristic prostrating attacks. Please discuss all symptoms associated with the Veteran's headaches, including a discussion of whether the Veteran has episodes of dizziness related to his headaches. b) Does the Veteran suffer from very frequent completely prostrating attacks which are productive of severe economic inadaptability due to residuals of a head injury with headaches? If yes, when did such attacks begin? Please provide specific references to the evidence of record which show the economic impact of the Veteran's headache disorder to support any response. c) If it is found that the Veteran does not suffer from prostrating attacks, the examiner must explain why the claimant's reports of having daily headaches that sometimes require several hours of rest do not constitute prostrating attacks. d) If it is found that the Veteran does not currently suffer from completely prostrating attacks that are currently productive of severe economic inadaptability, please address whether this service-connected disorder is "capable of producing" severe economic inadaptability. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner 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. 4. Obtain an addendum medical opinion from a qualified physician to address the symptomatology associated with the Veteran's service-connected hypertension. The examiner must be provided access to all files in Virtual VA and VBMS. The examiner must specify in the examination report that all files have been reviewed. The examiner must then address the following: a) What are the symptoms associated with the Veteran's hypertension since December 2010? Does the Veteran have any pathology which is secondary to his hypertension? b) Is it at least as likely as not that the Veteran's complaints of dizziness and light-headedness are caused by his service-connected hypertension? If not, are they aggravated? Why? Why not? A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner 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. 5. The AOJ must notify the Veteran that it is his responsibility to report for all scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review all additional evidence and readjudicate the Veteran's claims. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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).