Citation Nr: 1310997 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-41 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for headaches,. residuals of a traumatic brain injury (TBI). ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1965 to December 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND The Veteran was involved in a motor vehicle accident in service. He has established service connection for various injuries sustained. The instant appeal seeks a rating in excess of 10 percent for headache residuals of TBI sustained in that incident. He asserts that such rating does not reflect the full extent of the disabling effects of the disability at issue. The Veteran was last afforded a VA examination to evaluate the disability at issue in October 2009. He asserts, including in reports to his treating physician at the San Juan VA medical center (VAMC) that the disability has increased in severity in the interim. He reports he receives ongoing treatment for the disability from VA. He states that the over-the-counter medications he takes for the headaches do not alleviate the pain. While a new examination is not required simply because of the amount of time that has passed since the last examination, it is well-established that a new examination is appropriate when there is an indication of an increase in severity of a disability since the last examination. See VAOPGCPREC 11-95 (1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Here, more than three years have passed since the last VA examination. The Veteran is competent to observe that his symptoms, and their disabling effects, have increased in severity in the interim. Under these circumstances, a contemporaneous VA examination is indicated. The Veteran is advised that failure to report for an examination scheduled in connection with a claim for increase may result in the denial of the claim. See 38 C.F.R. § 3.655. As the Veteran has indicated that he receives treatment at the San Juan VAMC, and records of the treatment he receives for headaches are pertinent evidence constructively of record, any outstanding records of such treatment must be secured. Additionally, the Veteran submitted a single private treatment record showing he received treatment for headaches from Dr. C. R.. Complete records of his treatment for headaches/TBI residuals by Dr. C. R. are likely to contain information pertinent to the matter on appeal, and must be secured. The Veteran is advised that a governing regulation provides that where pertinent evidence requested in connection with a claim for VA benefits (to include releases for records of private treatment) is not received within one year following the request; the claim is to be considered abandoned. See 38 C.F.R. § 3.158(a). He is further advised that if VA is unable to secure records of his private treatment, it is ultimately his responsibility to ensure that such records are received. Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify the providers of all evaluations and/or treatment he has received for headaches/TBI residuals since October 2009, and to provide the authorizations necessary for VA to obtain all outstanding records of any such private evaluations or treatment he has received (to specifically include complete clinical records of his evaluations and/or treatment by Dr. C. R. The RO should secure for the record copies of the complete clinical records of all evaluations and treatment identified. The RO must specifically obtain for the record complete copies of all relevant VA treatment records that are outstanding. .If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to a VA request for records, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. After the development ordered above is completed, the RO should arrange for a protocol TBI residual examination of the Veteran to determine the current severity of his TBI residual headaches. The Veteran's claims file (and any electronic records) must reviewed by the examiner in conjunction with the examination. Any necessary tests or studies should be completed, and all pertinent findings must be described in detail. The examiner must have available a copy of the criteria in for rating residuals of TBI (38 C.F.R. § 4.124a, Code 8045), and the findings described must be sufficient to rate the disability under all pertinent criteria therein. The examiner must explain the rationale for all opinions in detail. 3. The RO should then review the record and re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has 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 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). _________________________________________________ George R. Senyk 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).