Citation Nr: 21030136 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-49 605 DATE: May 17, 2021 REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected tension and post-traumatic headaches is remanded. REASONS FOR REMAND The Veteran had active service from October 1990 to July 1991 and from February 2003 to December 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in August 2016 by a Department of Veterans Affairs (VA) Regional Office. These matters were previously denied by the Board in December 2019. The denials were appealed to the United States Court of Appeals for Veterans Claims (Veterans Court). By a November 2020 Order, the Court, pursuant to a joint motion for partial remand (Joint Motion) and remanded these matters for action consistent with the Joint Motion. 1. Entitlement to service connection for a cervical spine condition is remanded. 2. Entitlement to service connection for a TBI is remanded. 3. Entitlement to a disability rating in excess of 10 percent for service-connected tension and post-traumatic headaches is remanded. The matters of service connection for a neck or cervical spine disability and entitlement to an increased rating for the service-connected headache condition must be remanded for additional VA examinations. In the case of the claim for service connection for a neck or cervical spine disability, an additional VA examination and opinion is required because the previous VA opinion appears to have mischaracterized the evidence, indicating that the Veteran was not treated for neck pain until 2013, apparently not recognizing the Veteran was diagnosed with cervical myofascial pain in 1991 and 2005, and had ongoing neck complaints from January 2006 and 2007. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In the case of the Veteran's claim for an increased rating for his service-connected headache condition, it has been nearly five years since the Veteran's most recent examination, and other evidence of record intimates it may have increased in severity during that period. Accordingly, an additional examination to determine the current level of severity of his condition is required. See Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board also notes that, in his September 2017 appeal to the Board, the Veteran requested a complete copy of his claims file. The Veterans Court characterized the failure to provide a copy of the claims file to the Veteran as a failure to comply with VA's duty to assist. Consequently, in order to maximize the assistance to the Veteran, the RO should complete the examinations required in part one, and then provide the Veteran with a complete copy of his claims file including the examination reports from the examinations required in part one prior to readjudicating all three claims on appeal. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue(s) on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. Schedule the Veteran for a VA examination for his claimed neck and cervical spine conditions. The examiner must review the claims file, and the clinician is specifically directed to the Veteran's diagnosis of cervical myofascial pain in 1991 and 2005, and reports of neck pain in January 2006 and 2007. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is any presently diagnosed neck or cervical spine disability at least as likely as not related to service, including his in-service injury during a rough terrain vehicle ride? Alternatively, is it at least as likely as not that the Veteran's cervical spine degenerative disc disease (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected headache condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria to include the Veteran's own description of the frequency and severity of his headaches. 5. Once the examinations and opinions described above have been completed and the reports are a part of the claims file, and any additional development that may be indicated as a result is completed as well, provide the Veteran with a complete copy of the claims file in order to comply with VA's duty to assist as described in the Joint Motion. (Continued on the next page) 6. Once all that development has been completed, readjudicate the claims on appeal. If the claims are not granted to the Veteran's satisfaction, send the Veteran and his representative an appropriate Supplemental Statement of the Case (SSOC) and provide an appropriate time to respond. Then, if the matters are otherwise in order, return the matter to the Board for further appellate review. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.