Citation Nr: 21008027 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-31 957A DATE: February 11, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for headaches prior to March 11, 2016, is remanded. Entitlement to an increased disability rating in excess of 30 percent for headaches, from March 11, 2016, is remanded. Entitlement to a rating in excess of 10 percent for service-connected left wrist disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Unites States Air Force from February 1986 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Board remanded these matters for further development. Subsequently in April 2015, the Board, in pertinent part, denied a higher rating for the Veteran’s headaches and remanded the claim for a higher rating for a left wrist disability. The Veteran appealed the denial of a higher rating for headaches to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the April 2015 Board decision that denied a higher rating for headaches. In accordance with the JPMR, the Board remanded the claim for a higher rating for headaches in February 2016. In April 2017, the Board denied the claim for a higher rating for a left wrist disability; that decision was vacated by the Board in October 2017. In the Board’s October 2017 decision, the claims for a higher rating for headaches and left wrist disability were remanded for further development. The case has been returned to the Board at this time for further appellate review of the Veteran’s claim for left wrist disability, including whether a separate rating for residuals of wrist repair surgery is appropriate, and to clarify the current severity of the Veteran’s headaches. 1. Entitlement to an increased rating in excess of 10 percent for headaches, prior to March 11, 2016, is remanded. 2. Entitlement to an increased rating in excess of 30 percent for headaches, from March 11, 2016, is remanded. With regards to the Veteran’s claims for increased rating for his service-connected headaches, the Board finds that the VA examination and opinion obtained by the VA in January 2020 to be inadequate, and remand is required to obtain additional opinions for the VA to fulfill the duty to assist the Veteran. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Here, while it is unfortunate that this claim must be remanded again, the Board finds that the last VA examination and opinion acquired by the VA in response to the development directed by the Board’s last remand to be inadequate. Specifically, in the Board’s November 2019 remand, the RO was explicitly asked to obtain an opinion regarding the nature and severity of the Veteran’s headaches, noting explicitly the severity of the Veteran’s condition without medication. To this end, the Board sought to better understand the severity of the Veteran’s headache ‘attacks’ and condition, generally, without the ameliorating effects of any medication, to include effects on employment and daily activity. [emphasis added]. In this regard, the Veteran had been noted on many occasions to use over-the-counter medication such as Tylenol and asprin to relieve his headaches. However, despite the specific directive to speak to the use of ‘any’ pain medication, the January 2020 VA examiner’s opinion regarding pain medication only spoke to the potential ameliorating effects of medication as it related to the Veteran’s prescription drugs, such as Naproxen. A close review of the January 2020 opinion reveals that the examiner only considered the use of prescription medication as a measure to infer the severity of the Veteran’s condition throughout the claims period. The opinion is silent on consideration of the various other over-the-counter drugs the Veteran has continuously and consistently claimed he takes on a daily basis to relieve pain. As such, the Board must find that such opinion to be incomplete, and remand is required. Additionally, the Board points out the at the end of the January 2020 VA opinion, the examiner explicitly expressed that there should be additional medical records from the Veteran’s employer’s medical insurer, as he remains employed and insured by Coca-Cola. The examiner expressed that such records may reveal a better disability picture regarding the Veteran’s continuous condition regarding his headaches. Therefore, on remand, additional efforts should be made to obtain these additional records from the Veteran’s employer and private insurer 3. Entitlement to a rating in excess of 10 percent for service-connected left wrist disability The Board notes that likewise, with regards to the Veteran’s claim for an increased rating for his left wrist disability, the Board notes that the January 2020 VA examiner explicitly noted that additional medical records from the Veteran’s employer should be obtained. To this end, the examiner noted that while flare-ups have not been demonstrated by the record, the Veteran’s reporting of increased pain and increased functional loss has occurred after prolonged use at work, to especially include any physical labor such as lifting and driving a forklift. As such, the examiner explicit noted that additional medical records from the Veteran’s employer, the Coca-Cola Company, should reveal additional information regarding any medical reports and/or treatments involving flare-ups and functional loss due to use for his left wrist. The matters are REMANDED for the following actions: 1. Obtain and associate with claims file any outstanding records pertinent to the claim. 2. Request the appropriate authorization and permission to obtain any outstanding private medical records from any of the Veteran’s private treating physicians, rather through his private insurer or employer, the Coca-Cola Company. If the record is unavailable, or cannot be obtained after at least two attempts, such response should be documented in the record. 3. Then, schedule the Veteran for a VA examination to assess the current nature and severity of service-connected headaches. The examiner must review the claims file and should note that review in the report. The examiner should provide a complete rationale for all conclusions reached. The examiner must explicitly address the functional impairments caused by the Veteran’s headache disability, both occupationally and socially. The examiner should opine regarding the frequency and severity of headaches and whether there are prostrating attacks and the frequency and severity of any prostrating attacks of headaches. If the examination can be conducted during a period in which pain medication has not been used, such would be optimal. If it is not possible to evaluate the Veteran while not on medication, the examiner is asked to explicitly speak to the nature and severity of the Veteran’s headache disability, without any type of pain medication, to include over-the-counter medication. If the examiner cannot speak to the severity of the Veteran’s condition without medication, without resorting to mere speculation, the examiner must explicitly state such in the findings. The examiner is also asked to make a retrospective review of the Veteran’s medical records and review, to speak to the nature and severity of the Veteran’s headache disability during the entire claims period. To this end, again, the examiner is asked to make such an analysis speaking to the nature and severity of the Veteran’s disability, without the use of any medication. Again, if this retrospective analysis is not possible, without resorting to speculation, the examiner must explicitly state as such. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, Associate 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.