Citation Nr: 1312053 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 08-03 469A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable evaluation for migraines. 2. Entitlement to an initial compensable evaluation for acne vulgaris. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2000 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Among other things, service connection was granted and initial noncompensable evaluation as assigned therein for migraine headache and acne vulgaris. The Veteran appealed each of these assigned evaluations. Ultimately, jurisdiction was transferred to the RO in Philadelphia, Pennsylvania. The Board denied an initial compensable evaluation for migraines in November 2011. The issue of entitlement to such an evaluation for acne vulgaris was remanded for additional development. This development fully or at least substantially has been completed. Adjudication accordingly may proceed regarding acne vulgaris if otherwise in order. See Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with); aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on review of the Veteran's claims file in addition to her Virtual VA "eFolder," no reason is found to defer adjudication. The following determination thus is made on the acne vulgaris issue. Contemporaneous with undertaking the aforementioned additional development, the Veteran appealed the denial regarding migraines to the United States Court of Appeals for Veterans Claims (Court). Counsel for her as well as for VA requested that the pertinent portion of the Board's November 2011 decision be vacated and remanded in an July 2012 Joint Motion for Partial Remand (JMPR). The Court issued an Order granting the JMPR later that same month. In accordance with the JMPR, the migraines issue is addressed in the REMAND portion of the decision below. It thus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. (CONTINUED ON NEXT PAGE) FINDING OF FACT The Veteran has superficial acne papules on less than five percent of her exposed face and neck for which topical creams were and antibiotic medication is used. CONCLUSION OF LAW The criteria for an initial compensable evaluation for acne vulgaris have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.21, 4.27, 4.118, Diagnostic Codes 7806, 7828 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant and his representative, if any, prior to the decision by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning the holding in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), that all VCAA errors are presumed prejudicial unless VA shows that the essential fairness of the adjudication was not affected); see also Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been satisfied. The migraine issue of this matter initially was one of entitlement to service connection, as noted above. A March 2006 letter informed the Veteran of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. It accordingly preceded the initial adjudication by the AOJ, which in this case also is the RO, in May 2006. The Veteran was informed of the how VA determines evaluations, which was noted to include consideration of the impact on employment, and effective dates via letters dated in May 2006 and January 2007. In other words, this notice was contemporaneous with and after the initial adjudication by the AOJ/RO. However, this is of no consequence. The purpose that notice is intended to serve indeed was fulfilled in that service connection was substantiated. Dingess, 19 Vet. App. at 473. Pursuant to the duty to assist, VA is required to aid the claimant in the procurement of pertinent records, whether or not they are in Federal custody. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4). Service treatment records and VA treatment records concerning the Veteran have been obtained. This was through VA's efforts, her submitting them on her own behalf, or both. No private treatment records have been obtained. However, the Veteran has not identified any such records so that VA could attempt to obtain them even though she has reported being treated privately. This is true despite specifically being requested to do so. The Veteran also has not submitted any such records on her own behalf. A VA medical examination was performed in February 2006, prior to the Veteran's separation from active duty service, because she participated in the Benefits Delivery at Discharge Program. Another VA medical examination was performed in October 2012, pursuant to the Board's November 2011 remand. The October 2012 examiner reviewed the Veteran's claims file, as well as prescription information she brought with her. Although the RO directed that the claims file be sent for review by the February 2006 examiner, it was not indicated whether or not such review occurred. Yet any lack of such review is of no consequence. The Veteran indeed gave an accurate account of her relevant medical history to the February 2006 examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the mere fact that an examiner did not review the claims file does not render a medical examination inadequate, particularly where the examination content shows the examiner was familiar with the Veteran's history); see also D'Aries v. Peake, 22 Vet. App. 97 (2008). She also did so to the October 2012 examiner. In addition, each examiner interviewed her about her pertinent symptomatology and undertook a pertinent assessment. All questions necessary to render the determination made herein thus were answered by the aforementioned examinations. They accordingly are adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining medical examinations and opinions as adequate if they provide sufficient detail so that the Board can perform a fully informed evaluation). Significantly, neither the Veteran nor her representative has identified any further development necessary for a fair adjudication of the claim that has not been completed. The record also does not indicate any such development. The Board thus finds that VA's duty to assist has been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. The duty to notify and the duty to assist both having been met, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Higher Evaluation The Veteran seeks a higher initial evaluation for her acne vulgaris. She contends that this disability is worse than contemplated by a noncompensable evaluation. A. Schedular Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage for that disability. The percentage evaluations represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. One is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage evaluations. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is not expected, especially with a more fully described disability, that all cases will show all the specified criteria for a percentage evaluation. 38 C.F.R. § 4.21. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. When an appeal arises from an initially assigned evaluation, as is the case here, consideration must be given to whether staged evaluations are warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which a disability exhibited symptoms meeting the criteria for different evaluations during the course of the appeal, the assignment of a distinctive evaluation for each of the time periods is for application. The Veteran's acne vulgaris is evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806. Hyphenated Diagnostic Codes are used when an evaluation for a particular disability under one Diagnostic Code is based upon evaluation under another Diagnostic Code. 38 C.F.R. § 4.27. The four digits before the hyphen is the Diagnostic Code for the disability. Id. 99 indicates that the disability is not listed in the Schedule for Rating Disabilities, while 78 indicates that it is related most closely to the listed skin disabilities. 38 C.F.R. §§ 4.20, 4.27. The four digits after the hyphen is the Diagnostic Code for the disability specifically found to be most analogous. 38 C.F.R. § 4.27. Diagnostic Code 7806 addresses dermatitis or eczema. Diagnostic Code 7806 provides for a noncompensable evaluation if less than five percent of the entire body is affected, less than five percent of exposed areas are affected, or no more than topical therapy is required during the past 12-month period. At least five percent but less than 20 percent of the entire body being affected, at least five percent but less than 20 percent of exposed areas being affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs being required for a total duration of less than six weeks during the past 12-month period merits a 10 percent evaluation. A 30 percent evaluation is warranted for if 20 to 40 percent of the entire body is affected, 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The maximum evaluation of 60 percent is reserved for when more than 40 percent of the entire body or more is affected, 40 percent or more of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. One other Diagnostic Code is potentially applicable. Diagnostic Code 7828 pertains to acne. Superficial acne (comedones, papules, pustules, superficial cysts) of any extent warrants a noncompensable evaluation. A 10 percent evaluation requires deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck or other than on the face and neck. The maximum evaluation of 30 percent is reserved for deep acne affecting 40 percent or more of the face and neck. In the alternative to the above, Diagnostic Code 7806 and Diagnostic Code 7828 both provide for evaluations based on disfigurement of the head, face, or neck (Diagnostic Code 7800) or on scars (Diagnostic Codes 7801-7805) depending on the predominant disability. When the Veteran filed her claim, evaluations under Diagnostic Code 7800 ranged from 10 to 80 percent based on the number of characteristics of disfigurement present, the presence of palpable tissue loss, and the number of features or paired sets of features with either gross distortion or asymmetry. Diagnostic Codes 7801 concerned scars other than of the head, face, or neck that are deep or cause limited motion, while Diagnostic Code 7802 concerned that same scars that are superficial and do not cause limited motion. Evaluations ranged from 10 to 40 percent under the former and a 10 percent evaluation was set forth under the latter based on the area affected. Diagnostic Code 7803 concerned superficial, unstable scars, while Diagnostic Code 7804 concerned superficial scars that are painful on examination. Each provided for a 10 percent evaluation. Diagnostic Code 7805 specifically concerned other scars. Evaluation was based on limitation of function of the affected part. Revisions to the Diagnostic Codes relating to scars became effective during the pendency of the Veteran's appeal on October 23, 2008. See 73 Fed. Reg. 54,708 (2008); see also 77 Fed. Reg. 2,909-2,910 (2012) (correcting amendments intended to clarify applicability of the revisions). However, these revisions are applicable only to claims received by VA on or after this date or if the Veteran requests review pursuant to the revisions. Neither circumstance exists here. It follows that only the version of the Diagnostic Codes in effect when the Veteran filed her claim is applicable. The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An assessment of all elements affecting the probative value of the evidence indeed must be undertaken. 38 C.F.R. § 4.6. This includes both medical evidence as well as lay (non medical) evidence. When there is an approximate balance of positive and negative evidence, the benefit of the doubt is given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The Veteran thus prevails when the evidence supports her entitlement to a benefit or is in relative equipoise but does not prevail when the preponderance of the evidence is against her entitlement to a benefit. Id. Any reasonable doubt regarding the degree of disability therefore is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The evidence leads the Board to conclude that an initial compensable evaluation is not warranted for the Veteran's acne vulgaris. None of the criteria for the lowest compensable evaluation of 10 percent under Diagnostic Code 786 or 7828, to include via alternative Diagnostic Codes 7800 through 7805, have been met. There is no indication that at least five percent but less than 20 percent of the Veteran's entire body or at least five percent but less than 20 percent of the exposed areas of her body are affected by acne vulgaris. As noted in the Board's November 2011 remand, the February 2006 VA medical examination did not address the percent of area, whether entire body or exposed parts thereof, affected. It was determined at the October 2012 VA medical examination that only three percent of the Veteran's total body surface area and only three percent of her exposed body surface area were affected. Acknowledgement is given to the Veteran's assertion in her November 2006 notice of disagreement (NOD) that she was not having a break out at the time of the February 2006 VA medical examination. In its November 2011 remand, the Board recognized that examinations should be conducted during the active stage rather than the inactive stage of cyclical conditions. Ardison v. Brown, 6 Vet. App. 405 (1994). Therefore, it was directed that the examination on remand occur, if possible, during the active stage of the Veteran's acne vulgaris. The Veteran has not contended that the October 2012 VA medical examination was during an inactive stage. She rather reported at this examination having flare ups only if she stops taking her oral antibiotic, which was prescribed post-service. Her use of this antibiotic was described as constant or near-constant. Thus, flare ups or active stages of acne vulgaris post-service are unlikely and, if they occur, are infrequent. This is confirmed at least somewhat by an October 2006 VA treatment record describing the Veteran's skin as normal. With respect to any flare ups that have occurred, they have not resulted in at least five percent but less than 20 percent of the Veteran's entire body or of the exposed areas of her body being affected. She asserted in her NOD that a large part of her face was affected when she first was diagnosed during service and that her condition is recurrent. Inferred therefrom is that she asserts a large part of her face, or at least five percent of this exposed area, is affected when she breaks out. The Veteran is competent to so assert because the extent of her break outs is within her personal experience. Layno v. Brown, 6. Vet. App. 465 (1994). However, she is not credible. Factors for consideration in this regard include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). Here, the Veteran is self-interested by a desire for monetary gain in the form of increased VA compensation benefits. That her break outs affect a large part of her face is inconsistent with the other on point evidence of record. In addition to the October 2012 VA medical examination and the October 2006 VA treatment record is the July 2001 service treatment record containing the initial diagnosis of acne vulgaris. It documents that only her chin and around her mouth were affected. There additionally is no indication that the Veteran has required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during any 12-month period on appeal. There indeed is no indication of such for a period of any duration. Retin-A was prescribed to the Veteran during service in July 2001. Use of over the counter medication was noted in a July 2005 service treatment record. At the February 2006 examination, she reported using a cream. She indicated in her NOD having used various creams during service. At the October 2012 examination, the Veteran reported discontinuing topical medication in favor of the oral antibiotic erythromycin. Neither Retin-A nor erythromycin was identified as a systemic corticosteroid or immunosuppressive. Acknowledgement is given to the fact that use of the phrase "such as" suggests that systemic therapy is not limited solely to the enumerated corticosteroids and immunosuppressive drugs. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (discussing use of "such as" in the criteria for evaluating mental disorders). Erythromycin, as it is ingested in this case, qualifies as systemic therapy. Dorland's Illustrated Medical Dictionary, 1888 (31st ed. 2007) (defining systemic as "pertaining to or affecting the body as a whole"). However, it is not the kind of systemic therapy contemplated by Diagnostic Code 7806. Corticosteroids as well as immunosuppressive drugs suppress immune responses. Id. at 429, 935. Antibiotics, in contrast, fight infection. Id. at 101. Corticosteroids and immunosuppressive drugs affect a natural function of the body whereas antibiotics defend the body against invading microorganisms, in other words. It follows that antibiotics generally are less powerful and therefore have less impact than corticosteroids and immunosuppressive drugs. Finally, there is no indication of deep acne affecting less than 40 percent of the Veteran's face and neck or other than on her face and neck. The July 2001 service treatment record shows that 30 to 40 papules, which are by definition superficial, were found when acne vulgaris first was diagnosed. The July 2005 service treatment record reveals that this condition was under good control. Improvement with medication was noted at the February 2006 VA medical examination. Both of these are indications that there had been no deterioration from superficial acne to deep acne. The Veteran similarly reported clearing of her acne with medication at the October 2012 VA medical examination. Multiple papules, which it is reiterated are superficial by definition, were found with underlying erythema on her right cheek. There were no primary papules and/or pustules on her left cheek, chin, jawline forehead, chest, or back, although there was erythema and there were telangectasia's. It was determined that the Veteran had superficial acne affecting less than 40 percent of her face and neck. In sum, not even a 10 percent initial evaluation can be assigned under Diagnostic Code 7806 or Diagnostic Code 7828 because the Veteran's disability picture does not more nearly approximate any of the criterion for such an evaluation. It rather more nearly approximates the criteria for a lower noncompensable evaluation. Less than five percent of her entire body and the exposed areas of her body are affected. She utilizes systemic therapy for treatment, but not the kind contemplated. Finally, her acne is superficial rather than deep. Regarding an alternative evaluation for disfigurement of the head, face, or neck or for scars, the Veteran never has asserted that her acne vulgaris is disfiguring or has produced scarring. None of the other evidence has mentioned disfigurement whether scars or otherwise, palpable tissue loss, or gross distortion or asymmetry of any features or any paired set of features as it relates to her head, face, and neck. Scars as it relates to other than her head, face, and neck also has not been mentioned. This is true despite the fact that the other evidence includes VA medical examinations. As such, the only reasonable conclusion is that the aforementioned do not exist. Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (a lack of notation of a symptom where such notation would normally be expected may be considered as evidence that the symptom did not exist). Consideration has been given to the benefit of the doubt rule in making each of the above findings. However, this rule does not apply because the findings were made based on the preponderance of the evidence. Consideration finally has been given to whether a staged evaluation is warranted. It follows that such an evaluation is not warranted since the above findings apply to the entire period on appeal. B. Extraschedular The above determination continuing the Veteran's initial noncompensable evaluation for acne vulgaris, as it involves application of pertinent provisions of the VA's Schedule for Rating Disabilities, is made on a schedular basis. One other avenue exists through which a higher evaluation can be obtained. Specifically, it is possible to assign an evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b). Analytical steps concerning extraschedular evaluations were set forth in Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the evidence presents such an exceptional disability picture that the available applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the evaluation criteria are inadequate, the RO or Board must proceed to determine whether the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. Neither the Veteran nor her representative specifically has raised the issue of entitlement to an extraschedular evaluation for her acne vulgaris. There is no indication that this disability could not or cannot be contemplated adequately by the applicable schedular evaluation criteria discussed above. It is manifested by superficial acne papules on a small, albeit significant, area of her exposed face and neck for which topical creams were and antibiotic medication is used. All of this specifically is accounted for by the aforementioned criteria. Evaluation was based on them and applicable statutes, regulations, and caselaw. Higher evaluations exist. As explained above, however, an initial noncompensable evaluation accurately describes the severity of the Veteran's disability. In other words, the impairment it causes to her earning capacity is encompassed by the respective assigned evaluation. Given that the applicable schedular evaluation criteria are adequate, the Board finds that the Veteran does not manifest an exceptional acne vulgaris disability picture. Discussion of whether she exhibits related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary. Further, referral for consideration of the assignment of an evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). C. Total Disability Evaluation Based on Individual Unemployability Of final note is that "a request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a [V]eteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities ... as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447 (2009); Comer v. Peake, 552 F.3d 1662 (Fed. Cir. 2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, there is no indication that the Veteran's acne vulgaris alone is of sufficient severity to produce unemployability. Neither she nor her representative has contended this to be the case. It was determined at the October 2012 VA medical examination that her acne vulgaris does not impact her ability to work. Consideration of TDIU as a component to this matter thus is not warranted. ORDER An initial compensable evaluation for acne vulgaris is denied. (CONTINUED ON NEXT PAGE) REMAND Although the Board sincerely regrets the additional delay, this matter must be remanded. Such remand is necessary to ensure that there is a complete record so that the Veteran is afforded every possible consideration. The JMPR determined that the Board did not provide adequate reasons and bases for its November 2011 denial of an initial compensable evaluation for the Veteran's migraines. Specifically, it was noted that the Board did not discuss 38 C.F.R. §§ 4.3, 4.7, and 4.21, all of which are applicable. The JMPR also noted that, upon remand, the Board should consider whether there is adequate medical evidence to determine the current severity of the Veteran's migraines as well as whether a VA medical examination should be provided. That VA must provide an adequate examination was noted. Barr, 21 Vet. App. at 303; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Hayes v. Brown, 9 Vet. App. 67 (1996). Of import in this regard is that a VA medical examination must be contemporaneous if the disability at issue is service-connected. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran was entitled to a new VA medical examination after the passage of two years since his last examination and his contention that his disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"); see also Allday v. Brown, 7 Vet. App. 517 (1995); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Olson v, Principi, 3 Vet. App. 480 (1992); Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). In other words, it must portray the current state of the service-connected disability. In February 2006, the Veteran underwent a VA medical examination concerning her migraine headaches. She reported migraine headaches characterized by constant throbbing pain and associated photophobia once or twice per week. They reportedly improved with medication but worsened premenstrually. In her November 2006 NOD, the Veteran complained of very painful migraines characterized by sensitivity to light and sound which leave her able to move very little. The aforementioned VA medical examination was conducted over seven years ago and thus is of considerable age. Neither the Veteran nor her representative specifically has contended that her migraines have gotten more severe since then. Yet it readily is inferred that the Veteran believes this to be the case. She noted only light sensitivity related to migraines at the examination, but some months thereafter she noted additional sensitivity to sound as well as limited movement. As such, she must be afforded the opportunity to appear for another VA medical examination. Making arrangements in this regard requires remand. With respect to the lack of discussion about 38 C.F.R. §§ 4.3, 4.7, and 4.21, the Board notes that development concerning another VA medical examination and any other development deemed necessary must be completed first. Such discussion more precisely will take place in a second Board decision. Accordingly, the case is REMANDED for the following action: 1. Review claims file and "eFolder" and undertake any non-medical examination development indicated. This shall include requesting updated VA treatment records, if any, regarding the Veteran. This also shall include requesting that she either authorize the release of any private treatment records regarding her migraines or provide any such treatment records to VA himself. This finally shall include, if authorization is provided, requesting the records initially with a follow-up request as necessary. Any records received shall be associated with the claims file or "eFolder." Notice shall be provided to the Veteran if any treatment records are not received following requests for them. Document the claims file or "eFolder" as appropriate regarding this paragraph. 2. After completion of the above, arrange for the Veteran to undergo another VA medical examination concerning her migraines. The claims file shall be made available to and reviewed by the examiner. The examiner then shall obtain from the Veteran a description of her migraine history and symptomatology, to include information about onset, frequency, duration, and severity. All necessary tests, studies, or evaluations next shall be performed. Particular emphasis shall be focused on whether there are characteristic prostrating attacks, their frequency and duration if they exist, and whether there is economic inadaptability. 3. Finally readjudicate the Veteran's entitlement to an initial compensable evaluation for migraines. If this benefit sought is not granted in full, the Veteran and her representative shall be provided with a supplemental statement of the case (SSOC) and afforded the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." The Veteran has the right to submit additional evidence and argument on the issue 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 or by the Court for additional development or other (CONTINUED ON NEXT PAGE) appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs