Citation Nr: 22051110 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 20-02 470 DATE: September 8, 2022 REMANDED Entitlement to an initial compensable rating prior to December 20, 2019, and to a rating in excess of 30 percent thereafter, for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1987 to October 1995. This case comes before the Board on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that implemented the Board's grant of entitlement to service connection for headaches and assigned a noncompensable (0 percent) evaluation, effective from March 25, 2010. In December 2019, the agency of original jurisdiction (AOJ) granted an increased 30 percent rating for the service-connected headaches, effective from December 20, 2019, the date of a VA examination showing more severe symptoms. See December 2018 Rating Decision; December 2019 VA Headaches Disability Benefits Questionnaire (DBQ). The Veteran appealed, seeking a higher initial evaluation. See February 2019 Notice of Disagreement (NOD) (VA Form 21-0958). In November 2021, the Veteran testified at a Board hearing. A copy of the transcript has been associated with the claims file. Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Appellant's claim so that he is afforded every possible consideration. 1. Entitlement to an initial compensable rating prior to December 20, 2019, and to a rating in excess of 30 percent thereafter, for headaches is remanded. As noted, the Veteran asserts entitlement to a higher rating for his service-connected headache disability. In particular, the Veteran asserts that his headaches are productive of very frequent prostrating and prolonged attacks of headache symptoms, and that the level of severity of his headaches has been constant throughout the pendency of the appeal, so since March 2010. See, e.g., November 2021 Board Hearing Transcript (testifying that he experiences headaches "all the time," "at least four or five days a week," lasting for "hours at a time" and manifested by symptoms including pain, nausea, and sensitivity to light and sound, which require that he remain in bed to avoid aggravating the symptoms; and further reporting that his symptoms have "been the same severity since 2010"). See also 38 C.F.R. § 4.124a, Diagnostic Code 8100 (providing for a 50 percent evaluation for headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent evaluation for headaches manifested by headaches with characteristics of prostrating attacks occurring on average once a month; a 10 percent evaluation for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months; and a noncompensable evaluation for less frequent attacks of headache symptoms); The Veteran underwent a VA headache examination for the purpose of determining entitlement to service connection in February 2011. Thereafter, in December 2019, the AOJ obtained a second VA headaches examination to evaluate the severity of the Veteran's service-connected condition. However, the December 2019 VA headaches examination did not involve a clinical evaluation of the Veteran and did not include any attempt to elicit information from him regarding the nature, frequency, duration, level of severity, and functional impact of his headache symptoms. Instead, the examining clinician determined that "the existing medical evidence provided sufficient information on which to prepare the DBQ" and that an in-person examination would "likely provide no additional relevant evidence." See December 2019 VA Headaches DBQ. Accordingly, the examiner completed the report using the Acceptable Clinical Evidence (ACE) process, which involves medical findings based solely on the existing evidence of record. See id. Nevertheless, although the December 2019 VA examiner indicated that the findings regarding the nature and severity of the headaches were based on the evidence in the Veteran's claims folder, including his VA treatment records, the examination report does not reference a single medical record or lay statement to support its conclusions. See 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior treatment, so that the evaluation of the claimed disability will be a fully informed one); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) ("Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]."). Additionally, as noted, the Veteran has reported experiencing more severe symptoms than those reflected in the December 2019 VA examination report. Accordingly, because the December 2019 VA examination report does not adequately reveal the present state of the Veteran's service-connected headaches, reexamination is required. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating). See, too, Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim). Finally, the Board notes that the record reflects that the Veteran has been hospitalized in a VA medical center for more than a year. Additionally, recent correspondence sent to his prior address has been returned as undeliverable. Accordingly, the AOJ should take this information regarding the Veteran's current living situation into account when providing him any requisite notifications and for examination scheduling purposes. The matter is REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for an appropriate VA examination to determine the nature and current level of severity of his service-connected headaches. The examination should be scheduled with a different examiner than the examiner who completed the December 2019 headaches examination report, if possible, and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to the service-connected disability. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). Additionally, the examiner must also specifically state whether the Veteran has any symptoms due solely to any other service-connected or nonservice-connected conditions. Following a review of the entire record, to include the Veteran's lay statements and testimony regarding his current symptoms, the examiner should identify and describe in detail all manifestations of the Veteran's service-connected headache disability, reporting all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria and any functional impairment caused. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.