Citation Nr: 1316690 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-32 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for migraine headaches with anxiety disorder, not otherwise specified. 2. Entitlement to special monthly compensation based upon the need for the regular aid and attendance of another person. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1946 to February 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In the June 2004 rating decision, the RO denied entitlement to a single evaluation in excess of 50 percent for the Veteran's migraine headaches with anxiety disorder, not otherwise specified. In a February 2006 rating decision, the RO granted "service connection" for anxiety disorder not otherwise specified and assigned a separate 10 percent rating, effective December 31, 2003, and a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), also effective that date. In the April 2008 rating decision, the RO denied entitlement to special monthly compensation based on aid and attendance of another person. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 a June 2004 rating decision, the RO denied entitlement to a single evaluation in excess of 50 percent for the Veteran's service-connected migraine headaches with anxiety disorder, not otherwise specified. The RO notified the Veteran of the determination and of his appellate rights in a July 14, 2004, letter. In a June 2005 letter that was received at the RO that same month, the Veteran stated, "The following is to request appeal the Jul 14, 2004 decision on my migraine headaches. The condition is causing chronic depression due to continuous pain and headaches and in interfering with my daily living." In an October 2005 letter to the Veteran, the RO acknowledged his disagreement, and in a February 2006 rating decision, the RO established entitlement to "service connection" for anxiety disorder not otherwise specified and assigned a separate 10 percent rating, effective December 31, 2003, and a TDIU, also effective that date. The RO's determination does not represent the grant of the maximum benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Further, to date, the RO has not issued the Veteran a Statement of the Case (SOC). Under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). With respect to his claim seeking special monthly compensation based on aid and attendance claim, the Veteran asserts that due to his service-connected disabilities, he is unable to perform the activities of daily living as a consequence of the severity of his headaches, which are also manifested by dizziness, as well as due to his psychiatric disability. He was last examined by VA in May 2011. The examiner, while acknowledging that the Veteran was unable to perform many activities of daily living without assistance, opined that he was not precluded from doing so due solely to his service-connected headache disorder and psychiatric disability. The examiner, however, did not offer a rationale in support of the assessment. In this regard, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the rationale in support of a medical assessment is critical to the probative value of that impression. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning. A medical opinion is not entitled to any weight in a service-connection or rating context if it contains only data and conclusions); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). In addition, since that time, service connection was granted for the Veteran's tinnitus and bilateral hearing loss. Under the circumstances, the Board finds that this case must be remanded for a VA examination, and that in the corresponding examination report, the examiner must address whether, due to his service-connected disability, the Veteran requires the aid and attendance of another person. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue the Veteran an SOC with respect to his claim seeking a higher rating for his headache disorder with psychiatric disability, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. 2. Associate all pertinent, outstanding records with the claims folder. 3. Notify the Veteran that he may submit lay and medical evidence addressing the impact of his service-connected disabilities on his ability to dress or undress himself; to keep himself ordinarily clean and presentable; to feed himself; to attend to the wants of nature; as well as to the incapacity, either physical or mental that requires care or assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. 4. Then schedule the Veteran for a VA aid and attendance examination to determine eligibility for special monthly compensation based on the need for aid and attendance or by reason of being housebound. The claims folder must be made available and reviewed by the examiner and all necessary tests should be conducted. The examiner must determine the current severity of the Veteran's service-connected disabilities and their effect on his ability to care for his basic needs without the aid of others, to include his ability to dress himself, feed himself, bathe himself, to attend to the wants of nature and to protect himself from the hazards or dangers incident to his daily environment. A complete rationale for any opinion expressed must be provided in a legible report. 5. Then readjudicate the appeal. If the determination of any of these claims remains unfavorable to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case 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 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). _________________________________________________ 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 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).