Citation Nr: 1128025 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 06-07 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for migraine headaches, on an extra-schedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from June 1986 to April 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Jurisdiction of the appeal was subsequently transferred to the RO located in Atlanta, Georgia. This appeal was previously before the Board in June 2009, at which time the Veteran was granted an increased rating of 50 percent (i.e., the maximum schedular rating assignable for migraines under Diagnostic Code 8100). Because the Veteran also raised the issue of entitlement to a higher rating for migraines on an extra-schedular basis, the Board additionally remanded this issue for further development as part of its June 2009 decision. A hearing was held before the undersigned Veterans Law Judge in February 2009. A transcript of that proceeding has been associated with the claims file. 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 light of the fact that the Veteran has been awarded the maximum (50 percent) schedular rating for migraine headaches, and since she alleges that she has marked interference with employment due to her headaches, the Board finds that the RO should further develop the issue of the Veteran's entitlement to an increased disability evaluation for her migraine headaches on the basis of extraschedular criteria as set forth in 38 C.F.R. § 3.321(b)(1), to specifically include referral to the Director of the VA Compensation and Pension Service. Indeed, the Veteran recently testified that her migraine headache disability causes her to miss work at least two to three days per week due to pain and blindness; in addition, she experiences extreme grogginess and tiredness as a result of the medications that she must take for her migraine disability. The Veteran also testified that she is only able to work on a part-time basis due to her migraines. See Hearing Transcript, pp. 13-15. In this regard, a December 2008 Leave of Absence Request from the Veteran's employer does indicate that intermittent FMLA leave or a reduced work schedule was requested as a result of "severe migraines." Recent VA treatment records dated in February 2009 confirm reports of near-constant headaches and accompanying right eye blindness over the course of the last 2 weeks. It was also noted that the headaches were so severe that she often had to leave her shift at work and that her supervisor/employer subsequently recommended that she "take 2 months off (via FMLA)." The Veteran noted that this was not a solution to her migraine problems and that her disability was progressively worsening. Accordingly, in light of the Veteran's statements and the medical evidence of record, the Board has concluded that the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. Accordingly, the case is REMANDED for the following action: 1. The RO should review the claims file, and ensure that all VCAA obligations have been satisfied with regard to the issue of entitlement to an extraschedular rating for migraine headaches. 2. Request the Veteran's VA treatment records from March 2009 to the present. 3. Then, the RO or the AMC should forwarded the claims folders to the Director of the VA Compensation and Pension Service for a determination of whether a higher rating is warranted for the Veteran's headache disability on an extra-schedular basis. 4. Then, the RO should readjudicate the Veteran's claim. If any of the benefits sought on appeal are not granted to the Veteran's satisfaction, she and her representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MARJORIE A. AUER 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).