Citation Nr: 1318228 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-42 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a disability rating in excess of 10 percent for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to August 1964. This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah that granted entitlement to service connection for migraine headaches with an evaluation of 10 percent, effective from the date of service connection on May 18, 2009. 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 VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran was last afforded an examination for his migraine headaches in November 2009; the claims file was not available during the examination and therefore was not reviewed. It appears that the Veteran's disability has increased in severity since that time. In an undated letter from Dr. T.B., M.D., received in July 2010, he stated that the Veteran was recently granted 10 percent for his disability based on information that was not current. Dr. T.B. stated that the Veteran's headaches had been worsening in severity and frequency; he felt the Veteran should qualify for the maximum allowable disability based on his daily, largely untreatable headaches. On remand, the Board finds that the Veteran should be afforded an examination to determine the current severity of his migraine headache disability. Additionally, the record reflects that the Veteran has continued to receive treatment at the VA Medical Center (VAMC) from Dr. T.B. On remand, any on-going VA records must be obtained and associated with the paper or electronic claims folder. See 38 C.F.R. § 3.159 (c) (2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. The RO or AMC must obtain all outstanding VA treatment records, to include those from the VAMC. All efforts to obtain the additional evidence must be documented in the paper claims folder/electronic file. If the search for such records has negative results, documentation to that effect should be included in the claims files/electronic file. 2. Then, the RO or the AMC should arrange for the Veteran to undergo VA examination by an appropriate examiner. The claims file should be reviewed, and all appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner is asked to note that the claims file has been reviewed, and then describe in detail the frequency, duration, and severity of the Veteran's headaches. In discussing the severity of the headaches, the examiner should opine as to whether the Veteran's migraine headaches are characterized by: a) Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability b) Characteristic prostrating attacks occurring on an average once a month over the last several months, or c) Characteristic prostrating attacks averaging one in two months over the last several months. The examiner is asked to comment on whether the Veteran is unemployable because of service-connected disabilities. In particular, the examiner should render an opinion as to whether the Veteran's service-connected migraine headaches either alone or in combination with his service-connected calcified mass lesion, right sixth nerve palsy, posttraumatic stress disorder prohibit him from obtaining or maintaining gainful employment. A complete rationale for any opinion reached should be contained in the examination report. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). _________________________________________________ MICHAEL PAPPAS 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).