Citation Nr: 1313886 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 10-26 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for headaches, currently evaluated as 30 percent disabling. ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to October 1983 and from April 1985 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In July 2011, the Board remanded the above issue for additional development. When the appeal was last before the Board, it had characterized the Veteran's rating claim as a claim for an increased rating for posttraumatic seizures with headaches. However, in a February 2013 rating decision the RO granted the Veteran a separate 10 percent rating for his seizure disorder and the claimant did not appeal that rating. Therefore, the Board has recharacterized the rating claim which is in appellate status as a claim for an increased rating for headaches. Similarly, in July 2011 the Board remanded a claim of service connection for a psychiatric disorder other than depression to include posttraumatic stress disorder (PTSD) for further development. In the February 2013 rating decision, the RO granted the Veteran service connection for PTSD. Therefore, the Board finds that it no longer has jurisdiction over the claim of service connection for another psychiatric disorder. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). 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 In July 2011, the Board remanded the appeal to obtain the Veteran's treatment records from St. Peters University Hospital because she had provided the RO with a March 2008 authorization to request these record but no attempt had been made to obtain these records. However, the post-remand record does not show that any attempt was made to request her treatment records from St. Peters University Hospital. Therefore, the Board finds that another remand is required to attempt to obtain these identified records. See 38 U.S.C.A. § 5103A(b) (West 2002); see also Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). (Parenthetically, the Board notes that while the post-remand record also shows that the AMC did not follow-up in its attempt to obtain the Veteran's records from Madigan Army Medical Center, a remand to request these records is not needed because they relate to an unrelated psychiatric disorder claim.) Likewise, the Board remanded the appeal in July 2011 to obtain a medical opinion as to the current severity of the Veteran's headaches. Moreover, the post-remand record shows that the AMC obtained such an opinion in February 2013. However, the Board does not find the opinion adequate. The Board has reached this conclusion because, while the opinion discusses the problems the Veteran's service connected disabilities were causing with her employment at the present time as well as in the future, the examiner does not provide an opinion as to whether her headaches, acting alone, caused severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). Therefore, the Board finds that a remand is required to obtain this missing medical opinion evidence. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall, supra. Because of the nature of the Veteran's disability, it is likely that she receives ongoing treatment. However, her post-January 2013 treatment records from the East Orange VA Medical Center are not found in the claims file or available electronically via Virtual VA. As there are potentially relevant outstanding VA medical records, there is a duty to obtain such records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. After obtaining a new authorization from the Veteran, associate with the claims file, either physically or electronically, all of her treatment records from St. Peters University Hospital. The RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. All development efforts should be associated with the claims file. 2. After undertaking the above development to the extent possible, obtain an addendum to the February 2013 VA opinion. The claims file must be provided in connection with the addendum. After a review of the record on appeal, and any needed an examination, the examiner should indicate whether it is at least as likely as not that the Veteran's headaches cause severe economic inadaptability. In providing an answer to the above question, the examiner must comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptom of her headaches even when not documented in his medical records. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 3. Then readjudicate the appeal. If the benefit sought on appeal remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits and all evidence received and not received as well as all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal 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 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).