Citation Nr: 1318108 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 08-20 876 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to an increased rating for the service-connected migraine headaches, currently evaluated as 50 percent disabling, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1993 and from February 2003 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the RO. In a November 2011 decision, the Board granted an increase to a 50 percent rating for the service-connected migraine headaches and denied a rating in excess of 50 percent. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, in July 2012, the Veteran's attorney and VA's Office General Counsel filed a Joint Motion for Remand. In an August 2012 Order, the Court granted the Joint Motion, vacating the Board's November 2011 decision to the extent that it denied a rating in excess of 50 percent for migraine headaches and remanded that matter to the Board. 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 is required. REMAND In the Joint Motion issued in July 2012, the parties agreed that the Board failed to properly consider positive evidence, particularly that applying to whether referral was warranted for consideration of the assignment of an extraschedular evaluation. On remand, the Board finds that referral to the Director of Compensation and Pension for consideration of an extraschedular rating is warranted, particularly in light of the Veteran being assigned the maximum schedular rating for this disability. In addition, the Veteran was last afforded a VA examination on this matter in September 2007. In order to obtain a full description of the Veteran's current symptoms, the Board finds that he should be scheduled for a VA examination referencing this matter. Furthermore, any additional relevant medical evidence, to include additional relevant VA records of treatment, must be sought for association with the claims file. See 38 U.S.C.A. § 5103A(a)-(c); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (relevant VA treatment records are considered to be constructively contained in the claims folder and must be obtained before a final decision is rendered). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to notify the Veteran and his representative of the elements of a claim for increase on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) that complies with the notification requirements of VCAA and permits the Veteran full opportunity to supplement the record as desired. The RO should conduct any additional development of this claim in accordance with 38 C.F.R. § 3.159. 2. The RO also should take appropriate steps to contact the Veteran in order to have him identify all VA and non-VA medical treatment rendered for the service-connected migraine headaches. The letter should request sufficient information to identify the health care providers. The RO should provide the necessary forms and ask the Veteran to complete and submit authorizations for any identified health care provider to provide copies of any pertinent records. 3. If the Veteran adequately identifies the health care providers (with complete addresses) and complete any required authorization, the RO should request legible copies of all clinical records that have not been previously obtained and incorporate them into the claims file. Nevertheless, the RO should obtain VA treatment records dated since December 2011 and associate them with the claims file. 4. The RO then should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected migraine headaches. The Veteran's VA claims folder should be made available to the examiner for review in connection with the examination. Any indicated testing should be performed. The examiner should specifically identify all symptomatology and manifestations of the service-connected migraine headaches, to include severity and duration of symptoms as well as their level of impact on his employment. 5. After completing all indicated development, the RO should address the claim for an increased rating for the service-connected migraine headaches on an extraschedular basis. The RO in this regard should refer this matter, regardless of whether the Veteran attended the scheduled VA examination, to the Under Secretary for Benefits or the Director of Compensation and Pension Service for appropriate consideration of whether "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disabilit[y]" is assignable and to provide detailed reasons and bases in support of that decision. 38 C.F.R. § 3.321 (b)(1). 6. After completing any additional notification and/or development deemed warranted, the RO should then readjudicate the claim for increase, to include on whether an increased rating is assignable on an extraschedular basis, in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative with a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).