Citation Nr: 1314907 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 08-07 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for migraine headaches to include as secondary to service-connected major depressive disorder. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. The Veteran served on active duty from March 4, 1997, to December 13, 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in March 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran appeared at a hearing before an Acting Veterans Law Judge. A transcript of the hearing is the record. In June 2011, the case was remanded for additional development. While on appeal in a rating decision in August 2012, the RO granted service connection for major depressive disorder and for a right knee disability r. In February 2013, the Board afforded the Veteran the opportunity for another hearing as the Acting Veterans Law Judge who conducted hearing in February 2011 was no longer at the Board. The Veteran did not respond and pursuant to the notice, the Board assumes that the Veteran does not want another hearing. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND With the grant of service connection for major depressive disorder and a right knee disability, the evidence is insufficient to decide the claims of service connection for migraine headaches and for a left knee disability. Also, there is evidence that the current low back disability may be related to the left knee disability, and a decision of the claim of service connection for a low back disability is deferred until the claim of service connection for the left knee disability is finally adjudicated. In a rating decision in August 2012, the RO granted service connection for major depressive disorder and assigned an initial rating of 50 percent. The Veteran filed a notice of disagreement with the assigned rating. When there has been adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). As the RO has not yet issued a statement of the case, further procedural development is needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent) that: a). The current left knee disability is a progression of the in-service finding of patellofemoral syndrome of the left knee or the development of a new and separate condition; or, in the alternative, b). The current left knee disability is caused by or aggravated by the service- connected right knee disability. The term "aggravation" means a permanent increase in severity of the left knee disability, that is, worsening of the underlying condition not due to the natural progress, as contrasted to a temporary worsening of symptoms. The Veteran's file must be made available to the VA examiner for review. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent) that: Current headaches are caused by or aggravated by the service-connected major depressive disorder. The term "aggravation" means a permanent increase in severity of the headache disability, that is, worsening of the underlying condition not due to the natural progress, as contrasted to a temporary worsening of symptoms. The Veteran's file must be made available to the VA examiner for review. 3. Furnish the Veteran and his representative a statement of the case on the claim for an initial higher rating for major depressive disorder. 4. Following completion of the above development, adjudicate the claim, including secondary service connection. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). _________________________________________________ George E. Guido Jr. 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) (2010).