Citation Nr: 1318983	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  09-27 271	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to a disability rating higher than 30 percent for migraine headaches.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Taylor, Counsel









INTRODUCTION

The Veteran, who is the Appellant, served on active duty from May 1987 to May 1997. 


This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in June 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). 

In January 2011, the Veteran did not report for a hearing before the Board. 

In a decision in May 2011, the Board denied the claim for increase for migraine headaches.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In an Order in October 2011, the Court granted a Joint Motion for Remand and vacated the Board's decision and remanded the case to the Board for readjudication consistent with the Joint Motion. 

In April 2012, the Board remanded the matter for additional development.  The case has been returned to the Board for further appellate review.  

While on appeal in rating decision in March 2013, the Ro increased the rating to 30 percent.  As the Veteran has continued to contest the assigned rating, and as the rating is less than the maximum under the applicable criteria, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993). 

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  








REMAND

On the claim for increase, the criteria for the next higher rating are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  The term "productive of severe economic inadaptability" does not require that a Veteran be completely unable to work to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). 

In May 2012 on VA examination, the VA examiner noted that the Veteran had to leave work early four to six times a month due to headaches, which lasted one to two days.  As there remains a question of severe economic inadaptability, a reexamination is warranted under 38 C.F.R. § 3.327.  

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination to determine whether the migraine headaches produce severe economic inadaptability. 

2.  After the development is completed, adjudicate the claim for increase.  If the benefit sought is denied, then provide 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 matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).






The 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).



_________________________________________________
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) (2012).