Citation Nr: 1301280 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-31 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for posttraumatic headaches, migraine variant, evaluated as 30 percent disabling from December 3, 2010. 2. Entitlement to an evaluation in excess of 10 percent for posttraumatic headaches from September 21, 2006 to December 2, 2010. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to January 1972. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a September 2006 rating decision of the VA Regional Office in Waco, Texas that, among other things, denied an evaluation in excess of 10 percent for posttraumatic headaches. The Veteran was afforded a Travel Board hearing in May 2010 before the undersigned Veterans Law Judge sitting at Waco, Texas. The transcript is of record. The issue was remanded for further development by Board decisions in August 2010 and March 2012. By rating action dated in October 2011, the 10 percent disability rating for posttraumatic headaches was increased to 30 percent, effective from December 3, 2010. Following review of the record, 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 Unfortunately, a remand is required again for disposition of the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record on which to decide the Veteran's claim to afford him every consideration of due process. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(d) (2012). In this regard, the Veteran presented testimony on personal hearing in May 2010 that he had been given many different kinds of medications over the years for headache pain, including a steroid, but that severe symptoms persisted. He stated that he missed at least one day of work due to headache symptoms. The Veteran testified that he received treatment for the condition at the Dallas [Texas] VA and that he had been prescribed two types of medications to lessen the severity of his symptoms. Review of the record reflects that Veteran has received continuing VA outpatient follow-up at VA Dallas over the years, including treatment for headaches. The record, including review of the records in Virtual VA, reflects that the most recent outpatient clinic notes only date through October 10, 2008. During his 2010 hearing, the Veteran stated that he was currently receiving treatment for headaches. While several C & P examinations were performed, the current treatment records have not been requested and do not appear to have been reviewed during the examinations. A remand is required to ensure that there is a complete record on which to decide the Veteran's claim for an increased rating for headaches. These are especially pertinent since the rating criteria for such are substantially based on the frequency and severity of his attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). VA has notice of the potential existence of additional records. They must therefore be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet.App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet.App. 462, 466-67 (1998). Therefore, VA clinical records dating from October 11, 2008 through the present should be requested and associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran's clinical records from VA Dallas dating from October 11, 2008 through the present and associate with the claims folder virtually. 2. After associating all the current treatment records with the claims file, the case should be returned to the VA examiner who performed the most recent C & P in July 2012 for review of those records and issuance of addendum opinion if necessary. If the C & P examiner is not available, the Veteran should be scheduled for another C & P examination for headaches and the current treatment records and VA claims file should be made available for the examiner's review. 3. After taking any further development deemed appropriate, re-adjudicate the issue on appeal. If the benefit is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. 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. 2012). _________________________________________________ CHERYL L. MASON 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) (2012).