Citation Nr: 21003101 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-59 778 DATE: January 19, 2021 REMANDED Entitlement to service connection for tension headaches claimed as due to Gulf War Syndrome and to include as secondary to fibromyalgia and cervical spine disability is remanded. Entitlement to service connection for a bilateral foot disability to include plantar fasciitis is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard from November 1987 to April 1988. The Veteran also served in the Army Reserves from January 2003 to April 2004 with service in Iraq from March 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA). In September 2018, the Board denied the Veteran’s tension headaches, bilateral foot disability, and back disability appeals. The Board also notes that in September 2018, the Board remanded the Veteran’s claims of service connection for vertigo and dizziness, chronic fatigue syndrome (lethargy), constant chest pain, fibromyalgia, a cervical spine disability, and an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) to the agency of original jurisdiction (AOJ) for evidentiary development. The Veteran appealed the Board’s denial of these issues to the United States Court of Appeals for Veterans Claims (Court). In May 2019, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). The parties to the JMPR noted that the Board erred by failing to address whether the Veteran had requested a hearing before a Decision Review Officer (DRO). In addition, the parties agreed that the Board erred when it failed to address whether service connection is warranted for tension headaches as secondary to fibromyalgia or a cervical spine disability. Lastly, the parties agreed that the Board failed to properly address whether presumptive service connection for a chronic back disability was warranted. In August 2019, these claims returned to the Board. The Board remanded all of the Veteran’s claims in order for the RO to schedule the Veteran for a hearing before a Decision Review Officer (DRO) for his claims on appeal. The Board also requested the RO to schedule the Veteran for a VA examination to determine the etiology of the Veteran’s back disability if it is determined that his fibromyalgia and/or cervical spine disability claims were found to be service connected. Lastly, the Board requested that a medical opinion should also be obtained as to the etiology of the Veteran’s tension headaches if it is determined that his fibromyalgia and/or cervical spine disability claims were found to be service connected. In March 2020, the Veteran was scheduled for a hearing for a hearing with a DRO. The Board notes that the Veteran did not attend this hearing or provide good cause as to why he could not attend. Therefore, the Board finds that the RO substantially complied with the Board’s remand directive and it is not necessary to schedule him for an additional DRO hearing. 1. Entitlement to service connection for tension headaches claimed as due to Gulf War Syndrome and to include as secondary to fibromyalgia and cervical spine disability. In August 2019, the Board requested the RO to obtain a medical opinion if the Veteran was awarded service connection for a cervical spine disability. In September 2019, the Board notes that the Veteran was awarded service connection for a cervical spine disability; however, a medical opinion was not obtained that addressed whether the Veteran’s tension headaches were related to the service-connected cervical spine disability. Accordingly, the Board finds that there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied the Board itself errs in failing to ensure compliance). Moreover, the Board notes that the record reflects that additional service treatment records and VA treatment records have been added to the file following the August 2019 Board remand; however, a Supplemental Statement of the Case (SSOC) has not yet been issued. The Board notes that an SSOC must be furnished to the Veteran when additional pertinent evidence is received after a previous Statement of the Case (SOC) or SSOC has been issued. 38 C.F.R. § 19.31. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be referred back to the AOJ. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. 2. Entitlement to service connection for a bilateral foot disability to include plantar fasciitis is remanded. The Board notes that the record reflects that additional service treatment records and VA treatment records have been added to the file following the August 2019 Board remand; however, a Supplemental Statement of the Case (SSOC) has not yet been issued. The Board notes that an SSOC must be furnished to the Veteran when additional pertinent evidence is received after a previous Statement of the Case (SOC) or SSOC has been issued. 38 C.F.R. § 19.31. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be referred back to the AOJ. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. 3. Entitlement to service connection for a back disability is remanded. In August 2019, the Board requested the RO to obtain a medical opinion if the Veteran was awarded service connection for a cervical spine disability. In September 2019, the Board notes that the Veteran was awarded service connection for a cervical spine disability; however, a medical opinion was not obtained that addressed whether the Veteran’s lumbar spine disability was related to the service-connected cervical spine disability. Accordingly, the Board finds that there has not been substantial compliance with the remand orders; therefore, the matter must be remanded once again for compliance with the previous order/completion of the actions sought. Stegall, supra. Moreover, the Board again notes that the record reflects that additional service treatment records and VA treatment records have been added to the file following the August 2019 Board remand; however, a Supplemental Statement of the Case (SSOC) has not yet been issued. The Board notes that an SSOC must be furnished to the Veteran when additional pertinent evidence is received after a previous Statement of the Case (SOC) or SSOC has been issued. 38 C.F.R. § 19.31. Since the additional evidence in question is neither duplicative of other evidence nor irrelevant, and since an SSOC pertaining to that evidence was not issued, this evidence must be referred back to the AOJ. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304. The matters are REMANDED for the following action: 1. After reviewing the additional service treatment records and VA treatment records, the RO should take any steps that it deems necessary to properly develop the Veteran’s bilateral foot disability claim prior to readjudication of this issue. 2. Schedule the Veteran for appropriate VA examinations to determine the nature and etiology of the Veteran’s tension headaches and lumbar spine disability. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiners should provide answers to the following questions: (A). Is at least as likely as not (50 percent or greater probability) that the Veteran’s tension headaches had their onset in service or were caused by or related at least in part to his active service? (B). Is at least as likely as not (50 percent or greater probability) that the Veteran’s tension headaches were caused or aggravated by his service-connected disabilities? (C). Is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disability had its onset in service or is caused by or related at least in part to his active service? (D). Is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disorder is caused or aggravated by his service-connected disabilities? The examiner’s opinion must include a complete rationale for all opinions expressed. (Continued on the next page)   In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.