Board Erred in Denial of Increased Rating for Headaches
CCK Law: Our Vital Role in Veterans Law
Summary
The Veteran served in the U.S. Army from 1987 to 1989 and from 1990 to 1994. He filed a claim seeking service connection for his headaches in 2008. The Veteran was granted service connection in April of 2010, at a rate of 30 percent.
He filed an appeal in October of 2010 seeking an increased rating in excess of 30 percent. He was denied an increased rating for his headaches after repeated attempts. In July of 2011, he submitted another appeal to the Board of Veterans’ Appeals.
Board Denied Increased Rating for Headaches
In November of 2014, the Board issued a decision determining that the existing VA examinations were insufficient. Consequently, the Board remanded the issue of an increased rating for headaches so an examination could be completed.
The Board also ordered the regional office to document in the Veteran’s claim file the notice scheduling the examination. In April of 2015, an exam was scheduled, but the Veteran failed to attend. However, VA failed to properly document that the Veteran was notified.
CCK Appeals to the Court of Appeals for Veterans Claims
CCK successfully appealed to the Court the Board decision that denied the Veteran an increased rating for service-connected headaches. In its decision, the Board found that the Veteran failed to report for a VA medical examination without good cause, and therefore maintained his 30 percent disability rating based on the medical evidence of record.
Furthermore, the Board determined that despite the lack of documentation of the notice scheduling the Veteran for his VA exam in the claim file, its prior remand orders had been substantially complied with.
CAVC Sets Aside Board’s Denial
CCK argued, and the Court agreed, that the Board erred in failing to require compliance with its instructions as to the documentation of notice of the scheduled VA examination. The Court held that the Board’s finding that the Veteran failed to report to the exam without good cause was based on an incomplete record.
Accordingly, the Court vacated the Board’s decision and issued a remand. On remand, the Board must comply with its prior instructions or order a new VA medical examination for the Veteran’s headaches.
