Citation Nr: 1306137 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 04-40 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial compensable rating for migraine headaches from October 31, 2002, to June 11, 2003; in excess of 30 percent from June 12, 2003, to May 27, 2004; and in excess of 50 percent on and after May 28, 2004. (The issues of entitlement to service connection for a low back disorder, hearing loss, and tinnitus, as well as issues of higher initial disability ratings for diabetes mellitus and residuals of prostate cancer, will be addressed in a decisional document to be issued at a later date.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, granting service connection for migraine headaches and assigning a rating of 0 percent therefor, effective from October 31, 2002. By subsequent rating action, the RO in August 2007 increased the rating from 0 percent to 30 percent, effective from June 12, 2003. By its decision of November 10, 2010, the Board denied entitlement to an initial rating in excess of 0 percent prior to June 12, 2003, for migraine headaches and to more than a 30 percent rating therefor on and after June 12, 2003. The Board also granted an initial rating of 50 percent for migraine headaches for the period on and after May 28, 2004. By that decision, the Board also remanded various other issues then before it to the VA's Appeals Management Center (AMC) so that additional actions relating to claims of entitlement to service connection for a low back disorder, hearing loss, and tinnitus, as well as issues of higher initial disability ratings for diabetes mellitus and residuals of prostate cancer, could be undertaken. The AMC has not completed its actions as to those matters and they are not herein otherwise addressed, but will be the subject of a subsequent Board decision. Following entry of the Board's decision in November 2010, the Veteran appealed the question of the initial ratings to be assigned for migraine headaches to the U.S. Court of Appeals for Veterans Claims (Court). The parties to that appeal jointly moved the Court in June 2011 to vacate the Board's decision of November 2010 solely as to higher initial ratings denied for migraine headaches and remand the matter to the Board for further actions. The Court granted the parties' motion by its June 2011 order and the case was returned to the Board for further review. In April 2012, the Board remanded the matter to the AMC to undertake certain development actions and following the AMC's attempts to complete those actions, the case was again returned to the Board for additional review. In his December 2012 submission to VA, the Veteran raised the issues of his entitlement to service connection for a traumatic brain injury and to an increased rating for his posttraumatic stress disorder, but which have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. This appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required on his part. REMAND The record reflects that the Board advised the Veteran by its letter of December 7, 2012, that it was in receipt of his VA claims folder from the AMC. Later in December 2012, the Veteran submitted to the Board a written statement indicating that he had recently obtained from VA records totaling 135 pages regarding medical treatment he had received during the prior two years and was submitting some of those records dating to late 2012 for review. That submission did not include all of the 135 pages referenced. A written waiver for initial AMC or RO review of the records submitted was received by the Board in January 2013. The most recent supplemental statement of the case (SSOC) was furnished to the Veteran on November 27, 2012, wherein it was indicated that VA outpatient treatment records compiled through November 9, 2012, were on file and had been reviewed. At that time, all recent VA treatment records were among entries in the Veteran's virtual VA claims folder, consisting of two entries, one entered on May 12, 2012, for VA treatment records compiled from January 24, 2011, to February 17, 2012 (103 pages), and the other entered on August 31, 2012, for VA treatment records compiled from May 8, 2012, to July 22, 2012 (29 pages). Inasmuch as the SSOC indicates that VA records were reviewed that were not then contained in the actual or virtual VA claims folder, corrective action is required. See 38 C.F.R. §§ 19.31, 19.37 (2012). Moreover, the Veteran indicated in his December 2012 statement that he had in his possession 135 pages of VA treatment records, but only a portion of those were actually submitted, some of which date to the period from October to December 2012. While the Veteran has waived AMC or RO consideration of the submitted records, it is unknown whether all pertinent treatment notes are now a part of the Veteran's VA claims folder and remand is required to ensure that the record is complete. Accordingly, this case is REMANDED for the following actions: 1. Obtain for inclusion in the Veteran's VA claims folder, actual or virtual, all pertinent VA treatment records, not already contained in the claims file, including those compiled subsequent to July 22, 2012. 2. Thereafter, readjudicate the issue herein on appeal on the basis of all of the evidence of record, and if any benefit sought is not granted to the Veteran's satisfaction, provide him with an SSOC which references consideration of all the evidence of record, including all VA treatment records compiled subsequent to July 22, 2012. Then, afford him a reasonable period in which to respond before returning the case to the Board for further review. No action by the Veteran is required until he receives further notice. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).