Citation Nr: 1749104	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-44 252	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
Entitlement to service connection for a disorder manifested by headaches, to include as secondary to various service-connected disabilities, including a chronic cervical strain.
Appellant represented by:  Veterans of Foreign Wars of the United States
E. Ko, Associate Counsel
The Veteran had active service from August 2003 to November 2008.  
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  The Board remanded this case in April 2012, August 2014, October 2015, and January 2017 for further development.
The Veteran testified at an April 2014 videoconference hearing before the undersigned.  He also testified at a November 2011 travel board hearing before a different Veterans Law Judge who has since retired.  Transcripts of the hearing are of record.  
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.
The RO's development of the claim does not substantially comply with the Board's January 2017 remand directives because while the Veteran did not appear for the February 2017 VA examination, as noted by the representative, the record does not show that notice scheduling this examination was sent to his last known address.  Hence, further development is required.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 
Accordingly, the case is REMANDED for the following action:
1.  Schedule the Veteran for a VA neurological examination with a neurologist in order to determine the exact nature and etiology of any diagnosed headache disorder.  This examination must be conducted by a neurologist who has not heretofore seen or examined the Veteran.  
The neurologist is to be provided access to the claims folder, the VBMS file, the Virtual VA file and a copy of this remand.  The neurologist must specify in the report that these records have been reviewed.  
Following the examination, the neurologist must specifically comment whether it is at least as likely as not that any diagnosed headache disorder was incurred in or caused by his active military service.  
If the neurologist determines that a headache disorder to include migraines or tension headaches was not incurred in or caused by his active military service, then he/she must then address whether any diagnosed headache disorder is at least as likely as not proximately due to, the result of, or aggravated by any service connected disability or any combination of service connected disabilities.  In this regard, the Veteran is service connected, in pertinent part, for a cervical strain, tinnitus, posttraumatic stress disorder, "dry eyes," and sleep apnea.  
A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's VBMS electronic file. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and he/she must provide the reasons why an opinion would require speculation. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular doctor.
2.  The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim.  He is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim.  38 C.F.R. §§ 3.158, 3.655 (2017).  
In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained and added to the appellant's VBMS file showing that notice scheduling the examination was sent to his last address of record.  It should also be indicated whether any notice sent was returned as undeliverable.
3.  After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND.  The RO must ensure that the neurologist documented his/her consideration of Virtual VA.  If any report is deficient in any manner, the RO must implement corrective procedures at once.  
4.  After completing any additional development deemed necessary, readjudicate the claim for a chronic headache disorder, on both a direct and secondary basis.  If the benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond.  The case should then be returned to the Board for further appellate consideration, if in order.  
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).

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