Citation Nr: 1319575 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 10-43 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable evaluation prior to December 15, 2010 for tension headaches and an evaluation higher than 30 percent from December 15, 2010. 2. Entitlement to an initial evaluation higher than 10 percent for diarrhea, claimed as irritable bowel syndrome (IBS). 3. Entitlement to an initial compensable evaluation prior to January 13, 2009 for fibromyalgia with generalized arthralgia; an evaluation higher than 10 percent from January 13, 2009 until December 15, 2010; and an increased evaluation higher than 20 percent from December 15, 2010. REPRESENTATION Veteran represented by: Gentry C.M. Hogan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from October 1987 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 and April 2010 rating decisions of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned via a videoconference hearing in November 2012. A transcript of the hearing has been associated with the claims file. During the course of the appeal, in a February 2011 supplemental statement of the case (SSOC), the Regional Office (RO) increased the evaluation of the Veteran's service-connected tension headaches from noncompensable to 30 percent effective December 15, 2010. The RO also increased the evaluation of the service-connected fibromyalgia from 10 percent to 20 percent effective December 15, 2010. Because higher ratings are available for these disabilities, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claims for higher ratings, as reflected on the title page, remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran when further action is required. REMAND After careful consideration, the Board finds that this matter must be remanded to the RO for further evidentiary development. The Veteran's November 2012 Board hearing testimony demonstrates two specific reasons for a remand: (1) to obtain outstanding treatment records and (2) to afford the Veteran new VA examinations. 1. Outstanding Treatment Records With regard to the outstanding treatment records, the Veteran testified at his Board hearing that he has had treatment with a private (non-VA) chiropractor for his fibromyalgia symptoms. Hr'g Tr. 19. At present, the claims file includes records from this chiropractor dated in June 2009 which were received in September 2010. However, the Veteran testified at the hearing that he has ongoing treatment with the chiropractor. His attorney indicated that they had possession of records from March 2011 to March 2012. Hr'g Tr. 22. However, those records have not been associated with the claims file. As such, the Veteran should be afforded the opportunity to either submit the chiropractor's records or provide a release to allow the RO to assist him in obtaining the records. The Veteran also testified at his November 2012 Board hearing that he has treatment with the Durham VA medical center. At present, the claims file includes records (during the period of appellate review) from January 2005 through January 2009, and from June 2010 through May 2012. Upon remand, the RO should obtain VA treatment records for the period between January 2009 and June 2010, if any. VA treatment records since May 2012 should also be associated with the claims file. 2. VA Examinations The claims file shows that the Veteran last underwent a VA examination in December 2010 to evaluate the three service-connected disabilities in the instant matter. However, the Veteran testified at his November 2012 Board hearing that his disabilities have gotten worse since the December 2010 evaluations. With consideration of his testimony, the Board finds that remand is necessary to afford the Veteran an opportunity to undergo contemporaneous VA examinations to assess the current nature, extent and severity of his service-connected tension headaches, IBS, and fibromyalgia. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers, who may have additional records pertinent to the remanded claims. Specifically, the Veteran should be informed that VA has records for Dr. Sullivan dated in June 2009 and if there are additional records that he wants VA to review, he should submit them himself or provide a release. 2. Obtain all of the Veteran's outstanding VA treatment records, including those between January 2009 and June 2010, if any, and since May 2012. This should be accomplished on an ongoing basis until the case is recertified to the Board. 3. All attempts to fulfill the development specified in paragraphs 1-2 above must be documented in the claims file. 4. After completing the requested development in paragraphs 1-3 above, undertake any further development warranted by the record, to include scheduling the Veteran for appropriate VA examinations to evaluate the nature and severity of his service-connected disabilities. A copy of this remand and all relevant medical records should be made available to the examiner - such records must be made available to the examiner either in the eFolder, or, if the eFolder is not available (such as if the examiner has no access to Virtual VA), then via paper copies that are printed out for the examiner. The examiner is asked to confirm whether the paper and/or electronic records were made available to review. Accordingly, the examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. Then, based on the examination results and record review, the examiner is asked to provide an assessment of the current nature and severity of the Veteran's service-connected: a) tension headaches. The examiner should particularly describe whether the Veteran has prostrating attacks and, if so, how often they occur. The examiner should also describe the impact of his headaches on his employment. If indicated and to the extent possible, the examiner is asked to identify when any worsening symptoms began. b) diarrhea and irritable bowel syndrome. The examiner should particularly describe whether the Veteran has severe diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. The examiner should also describe the impact of his symptomatology on his employment. If indicated and to the extent possible, the examiner is asked to identify when any worsening symptoms began. and c) fibromyalgia with generalized arthralgia. The examiner should address whether the Veteran's disability is productive of widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, IBS symptoms, depression, anxiety, or Raynaud's-like symptoms. The examiner should particularly describe whether the Veteran's symptoms are constant, or nearly so, and refractory to therapy. The examiner should also describe the impact of his symptomatology on his employment. If indicated and to the extent possible, the examiner is asked to identify when any worsening symptoms began. It is essential that the examiners offer a detailed explanation discussing why and how all conclusions and opinions were reached. The examiners are thus requested to prepare a printed (typewritten) report setting forth all examination findings, along with a complete rationale for all conclusions and opinions reached. 5. After completing the requested actions, and any follow-up notification and/or development warranted after completing the development specified in paragraphs 1-4 above, the RO should readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all potentially applicable diagnostic codes. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond. 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). _________________________________________________ S. HENEKS Acting 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).