Citation Nr: 21031973 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-01 069 DATE: May 25, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from September 1993 to August 1995 and from November 2001 to September 2003, including in the southwest Asia theater of operations. This appeal has a long and complicated procedural history. Most recently, in January 2021, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. Although the Board sincerely regrets the delay inherent with a remand, it finds that another remand to ensure compliance with the Board's prior remand instructions is required before the underlying claims can be adjudicated on the merits. 1. Entitlement to service connection for migraine headaches is remanded. In the January 2021 remand, the Board directed the AOJ to schedule the Veteran for examination to determine whether his service-connected obstructive sleep apnea caused or aggravated (permanently worsened) his migraine headaches. The Board specifically asked the examiner to consider 2 medical articles submitted by the Veteran's attorney in support of this claim on August 5, 2019, which addressed the contended etiological relationship between obstructive sleep apnea and migraine headaches. These articles are "Associations Between Sleep Quality and Migraine Frequency" and "Sleep apnea headaches." Following the remand, the AOJ requested a telehealth examination because of current COVID-19 restrictions. The January 2021 VA Form 21-2507a requesting this examination included the Board's remand directive to consider 2 medical articles submitted by the Veteran's in support of this claim in August 2019 which addressed the contended etiological relationship between obstructive sleep apnea and migraine headaches. The requested examination occurred later in January 2021. Unfortunately, a review of the VA medical nexus opinion completed in January 2021 does not indicate that the VA clinician who provided this opinion reviewed the 2 medical articles provided in August 2019. The Board next notes that this appeal has been remanded repeatedly because of the AOJ's apparent failure to comply with prior remand instructions and because of arguments made by the Veteran's attorney that VA failed in its duty to assist the Veteran in this appeal. The Board finds that judicial review is frustrated in this appeal by the AOJ's apparent failure yet again to comply with prior remand directives. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board in March 2021 without complying with the January 2021 remand instructions. Given this error, another remand is required. 2. Entitlement to a TDIU is remanded. The Veteran finally contends that his service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation and entitle him to a TDIU. Because adjudication of the service connection claim for migraine headaches being remanded in this appeal likely will impact adjudication of the TDIU claim, the Board again finds that both of these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the TDIU claim must be deferred again. The matters are REMANDED for the following action: 1. Forward the claims file and a copy of this REMAND to an appropriate clinician for an addendum opinion concerning the contended etiological relationship between the Veteran's service-connected obstructive sleep apnea and migraine headaches. The Veteran should not be asked to report for examination. The clinician is asked to review and discuss the clinical significance of 2 medical articles submitted to VA by the Veteran's attorney on August 5, 2019, in support of this appeal. These articles are "Associations Between Sleep Quality and Migraine Frequency" and "Sleep apnea headaches." The clinician is asked to state whether the conclusions reached in these medical articles would change the medical nexus opinion dated on January 19, 2021, concerning the contended etiological relationship between the Veteran's service-connected obstructive sleep apnea and his migraine headaches. If so, then the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected obstructive sleep apnea caused or aggravated (permanently worsened) his migraine headaches. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. 2. Review the addendum opinion, once obtained, and determine whether it complies substantially with the terms of this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Readjudicate the appeal. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.