Citation Nr: 1306829	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  09-30 465	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for migranous headaches. 

2.  Entitlement to an initial compensable evaluation for scar, residual of head injury and surgery prior to March 11, 2011, and in excess of 10 percent thereafter.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel


INTRODUCTION

The Veteran served on active duty from June 1979 to June 1983.

This matter comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.  In a May 2011 Supplemental Statement of the Case (SSOC), the RO increased the evaluation of the Veteran's scar, residual of head injury and surgery to 10 percent, effective March 11, 2011.  

The Veteran was afforded a Travel Board hearing in August 2012.  A transcript of the testimony offered at the hearing has been associated with the record.  

At this hearing, the Veteran and his representative requested that the record be held open for 60 days to allow for the submission of additional evidence.  See 38 C.F.R. § 20.709 (2012).  Evidence in the form of Erie VA Medical Center (VAMC) records was received and the Veteran has waived initial RO consideration thereof.  See 38 C.F.R. § 20.1304(c) (2012).  

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.

In a July 2012 statement, the Veteran raised the issues of entitlement to service connection for a traumatic brain injury, neuropathy of the head, and tinnitus.  As these matters have not yet been adjudicated, they are referred to the RO for the appropriate consideration.

The issue of entitlement to service connection for migranous headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

In an August 2012 statement, as well as prior to the promulgation of a decision in the present appeal, the Veteran withdrew his Substantive Appeal with respect to the issue of entitlement to an initial compensable evaluation for scar, residual of head injury prior to March 11, 2011, and in excess of 10 percent thereafter.


CONCLUSION OF LAW

With respect to the issue of entitlement to an initial compensable evaluation for scar, residual of head injury the criteria for withdrawal of the Veteran's Substantive Appeal have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.

Under 38 U.S.C.A. § 7105 , the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed.

A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In an August 2012 written statement the Veteran expressed his clear intent to withdraw the issue of entitlement to an initial compensable evaluation for scar, residual of head injury prior to March 11, 2011, and in excess of 10 percent thereafter.  Consequently, there are no allegations of error of fact or law remaining for appellate review in connection with this claim.  Accordingly, as this matter is found to be withdrawn, the appeal to this extent is dismissed.


ORDER

The appeal is dismissed with respect to the claim of entitlement to an initial compensable evaluation for scar, residual of head injury and surgery, prior to March 11, 2011, and in excess of 10 percent thereafter.


REMAND

A review of the record indicates that there are possibly outstanding and relevant VA records.  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); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  

Of record is a November 16, 1999, VA history and physical examination report related to a domiciliary admission.  The report documents that the Veteran was admitted to the domiciliary for treatment of substance abuse.  The report is signed and also dated November 22, 1999.  However, the report indicates that there are further records related to this admission wherein it states "[p]lease see DHCP for further information."  Accordingly, upon remand, VA should attempt to secure any possibly outstanding records related to this admission.  

A June 2006 record from the Lebanon, PA VAMC documents that the Veteran had also previously been seen by VA for treatment of substance abuse in 2003 and that he participated in Compensated Work Therapy (CWT).  Of record, in this regard, is an October 22, 2003, intake record from the Lebanon VAMC noting that the Veteran had been admitted for 21 days.  However, there are no records related to this admission.  Upon remand, VA should attempt to obtain any records associated with this admission and any CWT records.  

In June 2006, the Veteran was also admitted to the Lebanon VAMC and participated in CWT.  A review of these records shows that on August 21, 2006, he was apparently transferred to the Augusta, GA domiciliary.  However, there are no records from the Augusta, GA VA domiciliary records contained within the claims file.  Accordingly, VA should attempt to obtain these records. 

Following his Board hearing, the Veteran submitted records from the Erie VAMC dated September 11, 2012.  At his Board hearing in August 2012, the Veteran indicated that he had treatment at this VAMC since March 2012.  See transcript at pg. 3.  Upon remand, appropriate efforts should be undertaken to obtain any possibly outstanding records.  

In October 2007 the Veteran was afforded a VA examination to address his claim.  The report associated with this examination notes that the examiner documented that the Veteran related that  his headaches "started 2 1/2 to 3 years" prior to the examination.  At his Board hearing, the Veteran testified that he was misunderstood by the VA examiner and that he had intended to inform (or possibly did) the examiner that only 2 1/2 to 3 years prior had the headaches become unbearable and that he had always had headaches.  

In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the United States Court of Appeals for Veterans Claims (Court) found that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the Court found that, "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing."  Pursuant to 38 C.F.R. § 4.2 (2012), it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail.  As the October 2007 VA examination appears to be based upon an inadequate history, and because further development could result in the association of relevant records, the Veteran should be afforded a new VA examination to address his claim.  

Accordingly, the case is REMANDED for the following action:

1.  Attempt to obtain any outstanding VA records, including the following:

a.  any records related to the Veteran's November 1999 VA admission, including any CWT records;

b.  any records related to an October 2003 VA admission, including any CWT records, 

c.  any outstanding VA records from August 2006 and on; and 

d.  records from the Erie, PA VAMC from March 2012 to present.

2.  After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining the presence, nature and likely etiology of his migranous headaches.  The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence.  The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed.

Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's assessed migranous headaches are attributable to service, including to his history of head injury therein.  In this regard, the examiner's attention is directed to service treatment records reflecting treatment for headaches in service.  

Any and all opinions must be accompanied by a complete rationale.  

The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.

3.  After the development directed above has been completed to the extent possible, readjudicate the issue on appeal.  If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review.


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).



______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs