Citation Nr: 1124062	
Decision Date: 06/24/11    Archive Date: 06/29/11

DOCKET NO.  07-34 731	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an increased initial rating for migraine headaches, currently rated 10 percent disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Lipstein, Associate Counsel



INTRODUCTION

The Veteran had service from September 2004 to December 2005.  

This matter comes to the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, which granted a noncompensable disability rating for the Veteran's migraine headaches.  Thereafter, an April 2009 rating decision increased the evaluation for the Veteran's migraine headaches to 10 percent throughout the rating period on appeal, thereby partially granting the Veteran's claim.  The increase to 10 percent did not constitute a full grant of the benefits sought; therefore, the increased initial rating issue remains on appeal.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  

The December 2006 rating decision also granted service connection for lumbosacral, right elbow, and left shoulder disabilities.  In January 2007, the Veteran filed a Notice of Disagreement with regard to the disability ratings assigned.  A Statement of the Case was issued in October 2007.  However, in his Substantive Appeal, the Veteran expressly indicated that he was only appealing the migraine issue.  Thus, the lumbosacral, right elbow, and left shoulder issues are not in appellate status.  See generally 38 U.S.C.A. § 7105 (West 2002). 

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

In an April 2011 brief, the Veteran's representative stated that the Veteran's migraine headaches have worsened since his last VA examination in September 2006.  The VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995).  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination).  In this case, specifically, VA records dated in 2008 indicating the Veteran's migraines are not controlled with medication suggest that the condition has worsened since the last VA examination.  Thus, the Board is of the opinion that the Veteran should be afforded additional VA examination.  

Accordingly, the case is REMANDED for the following actions:

1. Obtain the Veteran's outpatient records from the VAMC in Long Beach, CA, for treatment from December 2008 to the present.

2. After obtaining the VA medical records, to the extent they are available, then schedule the Veteran for an examination to ascertain the severity and manifestations of his service-connected migraine headaches.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  All examination findings should be reported to allow for application of VA rating criteria. 

3. After the development has been completed, readjudicate the claim for an increased initial evaluation for migraine headaches.  If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  

The Veteran and his representative have 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 Supp. 2010).


________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).