Citation Nr: 1808286 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-10 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for migraine headaches, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or bilateral hearing loss disability and tinnitus. ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Army from June 1969 to June 1975, with service in the Republic of Vietnam. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a January 2010 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was previously before the Board, most recently in September 2016, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. REMAND The Board finds that additional development is required before the claim on appeal is decided. In the September 2016 remand, the Board directed that the claims file be returned to the VA Medical Center for an addendum medical opinion regarding the nature and etiology of the Veteran's headaches. The examiner was specifically directed to address whether the Veteran's headaches were directly related to his active service, to include a reported fall and head injury; and whether the Veteran's headaches were caused or chronically worsened by service-connected PTSD. A review of the record shows that the directed opinion was obtained in May 2017. However, the opinion provided is not adequate. In this regard, the examiner failed to adequately consider the Veteran's lay statements regarding his fall and subsequent head injury during service. Rather, the examiner just noted that there was no treatment for headaches while the Veteran was in active service. Additionally, the examiner noted there was no correlation between the Veteran's headaches and his PTSD. The examiner failed to provide an adequate opinion as to whether the Veteran's PTSD caused or chronically worsened his headaches. Therefore, the development conducted does not adequately comply with the directives of the September 2016 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Veteran should be afforded a new VA examination to determine the nature and etiology of his headaches. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the issue on appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain and pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of the Veteran's headaches. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current present headaches are etiologically related to the Veteran's active service, to specifically include his report of slipping and hitting his head during active service. The examiner should presume that the Veteran is a reliable historian with regard to his report of onset and continuity of his headache symptoms. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current present headaches were caused or chronically worsened by a service-connected disability; to specifically include PTSD, bilateral hearing loss disability, and tinnitus; and/or treatment for such disability. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ Kristin Haddock 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).