Citation Nr: 22018441 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-54 713 DATE: March 29, 2022 REMANDED Entitlement to a rating in excess of 50 percent for headaches (non-migraine type) is remanded. REASONS FOR REMAND The Veteran served on active duty with the U.S. Air Force from March 1992 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) from a February 2018 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA), which denied a compensable evaluation for service-connected headaches (non-migraine type). In May 2019, April 2020, and November 2020, the Board remanded this matter for further evidentiary development. The directives have been substantially complied with and the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, judicial review is frustrated at this time by a series of apparent errors by the AOJ is awarding a 50 percent evaluation effective from April 18, 2013. The Veteran first claimed service connection for headaches in an April 18, 2014, filing. This claim was denied in an October 31, 2014, rating decision, notice of which was provided in November 2014. A request to reopen was received in July 2015, and service connection was again denied in a November 2015 rating decision. Another reopened claim was filed in April 2016, resulting in a grant of service-connection for headaches (non-migraine type), rated 0 percent disabling effective April 27, 2016. This grant noted that the Veteran was diagnosed with two types of headaches, migraines and non-migraines secondary to service-connected allergic rhinitis. The decision stressed that the 0 percent evaluation was based solely on the non-migraine type headaches, and migraines were not service-connected. No notice of disagreement was received to this decision, nor was new and material evidence related to the headaches received within a year of the notice. Accordingly, the decision appears to have become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A new claim for increased rating of the service-connected headaches (non-migraine type) was received in October 2017. The noncompensable evaluation was confirmed in the February 2018 decision on appeal here. Following the Board's November 2020 remand, the Veteran underwent a contract examination in June 2021, and in July 2021, the AOJ issued a rating decision granting a 50 percent evaluation for "headaches (non-migraine type)." The AOJ also assigned an earlier effective date on April 18, 2013, for the award of service connection and the 50 percent evaluation; the cited authority, Public Law 112-54, "Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012," however, applies only to original claims, not reopened claims as is at issue here. Further, the assigned rating appears to consider non-service connected migraine headaches. There is no finding of a clear and unmistakable error in any decision to explain the actions of the AOJ in July 2021, nor are there factual findings altering the nature of the service-connected condition to include migraines. The examiner does not appear to have even been aware of competing headache types or the distinction in service-connected status, let alone address such. The July 2021 rating decision, on its face, appears to therefore contain clear and unmistakable errors of law and fact, and so the Board cannot at this time parse the issue before it. Therefore, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA headaches examination. The claims folder must be reviewed in conjunction with the examination. The examiner must first address the current diagnoses to identify any different types or categories of headaches present. Migraine and allergy/sinus/non-migraine headaches must be discussed. The examiner should then identify the symptoms, manifestations, and functional impairments associated with each type, and to the extent possible clearly distinguish between the impact of the differing headache types. If the symptoms, manifestations, and functional impairments cannot be allocated by type, such must be clearly stated. Mittleider v. West, 11 Vet. App. 181 (1998). 3. The AOJ must then undertake review of the July 2021 rating decision and readjudicate such in light of the above narrative. The finality of the April 2016 rating decision granting service connection and apparently ending prosection of the April 2014 must be addressed. Similarly, the assigned evaluation for service-connected headaches should be assessed to ensure that only service-connected symptoms are considered. 4. Issue a supplemental statement of the case and, after appropriate time for response, return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.