Citation Nr: 1325140 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-06 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for migraines, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from March 1979 to January 1985. This appeal arises to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied a claim for an increased rating for migraines, then rated as 10 percent disabling. In February 2009, the RO granted an increased, 30 percent, schedular rating for migraines for the entire appeal period; however, the Veteran has continued her appeal for a higher schedular rating. In a December 2007 rating decision, the RO denied service connection for depression. In January 2009, the Veteran submitted a notice of disagreement (NOD) that was untimely. In September 2009, the RO issued an administrative decision that found the NOD to be untimely. The Veteran did not appeal that decision. Because the NOD was untimely, the Board lacks jurisdiction to address the denial of service connection for depression. However, in a February 2009 substantive appeal for a higher migraine rating, the Veteran reported that her migraines had caused depression. Although the January 2009 NOD was untimely, it, together with the February 2009 substantive appeal, may be accepted as an application to reopen a claim for service connection for depression. This is referred to the RO or to VA's Appeals Management Center (AMC) for appropriate action. In February 2009, the Veteran requested a hearing before a Veterans Law Judge. She was notified that a hearing was scheduled for October 24, 2012. She failed to report for the hearing, although the notification letter has not been returned by the United States Postal Service as undeliverable. She has not explained her failure to report nor has she requested rescheduling of the hearing. Therefore, the Board deems the hearing request to be withdrawn. See 38 C.F.R. § 20.702(d) (2012). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action is required. REMAND According to 38 C.F.R. § 3.327(a) (2012), VA re-examinations are required where the evidence indicates that there has been a material change in the disability. In Caffrey v Brown, 6 Vet App 377, 381 (1994), the United States Court of Appeals for Veterans Claims (hereinafter: the Court) held that where evidence indicated a material change in the disability or indicated that the current rating may be incorrect, a fresh medical examination was required. In Procelle v. Derwinski, 2 Vet. App.629, 632 (1992), the Court stated that where the record is inadequate for evaluating the current state of the Veteran's service-connected disability, the duty to assist requires conducting a thorough and contemporaneous medical examination, taking into account the records of prior medical treatment, so that the evaluation of the claimed disability is a fully informed one. See also VAOPGCPREC 11-95 (60 Fed. Reg. 43186 (1995))(an examination which was adequate for purposes of determination of the claim by the agency of original jurisdiction will ordinarily be adequate for purposes of the Board's determination, except to the extent that the claimant asserts that the disability in question has undergone an increase in severity since the time of the examination). The Veteran submitted a claim for an increased rating in April 2006. Since then, she has undergone one VA compensation examination to determine the nature and severity of her migraines. That examination was performed in June 2006. The record strongly suggests that the severity of her migraine disability has increased since that time. A July 2007 VA out-patient treatment report mentions, "headaches occurring more frequently..." In February 2009, the RO considered the VA examination report of April 2006 and the VA out-patient treatment report of July 2007 and granted an increased 30 percent rating for migraines. However, since the February 2009 rating action, the Veteran has reported additional increases in the severity of her migraines. In her substantive appeal, she reported that her migraines were constantly disabling, although it does not appear that she has alleged unemployability. In May 2009, the Veteran reported that her headaches had worsened over the recent two months. She reported that they occur, "...much more often recently, the intensity had not changed, but it lasts longer..." She also mentioned that her headaches were associated with nausea and episodes of right-sided facial paralysis. A July 2009 VA brain MRI showed ischemic changes that could be secondary to migraines. Given the Veteran's competent lay statements and the medical evidence indicating a possible worsening in the severity of the Veteran's headaches, she must be afforded a current VA examination to assess the severity of her headache disability. Accordingly, the case is REMANDED for the following action: 1. The AMC must review the claims files and ensure that any recent pertinent medical evidence has been associated with the claims files, to include any relevant outstanding VA treatment records. The AMC must offer the Veteran an opportunity to identify or submit any additional pertinent evidence in support of her claim. Based on her response, the AMC must attempt to procure a copy of any record which has not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims files. If, after making reasonable effort, the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify her that she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. The AMC must also notify the Veteran that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination, without good cause, may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice of the scheduled examination was sent to her last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 2. After the development requested above has been completed to the extent possible, the AMC should make arrangements for an appropriate examination to determine the nature and severity of the Veteran's migraine disability. The claims files and any additional evidence available in Virtual VA should be made available to the examiner for review. The examiner is asked to review the pertinent medical history, note that review in the report, elicit a history of relevant symptoms from the Veteran, examine her, and offer a diagnosis, if appropriate. Any indicated test and study must be accomplished. The examiner is asked to measure and record all subjective and objective symptomatology of the Veteran's service-connected migraine headaches. The examiner should describe the frequency, severity, and duration of any characteristically prostrating attacks, to include whether the attacks are completely prostrating or prolonged. The examiner is also asked to address whether very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are shown. Additionally, the examiner shall provide an opinion as to whether it is at least as likely as not (50 percent or greater possibility) that the Veteran's right-sided facial paralysis episodes are related to her service-connected migraines. A rationale for any opinion should be given. If an opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 3. After the development requested above has been completed to the extent possible, the AMC should review the schedular rating for a migraine disability and then re-adjudicate the increased rating claim. If the benefits sought remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. No action by the Veteran is required until she receives further notice. 38 C.F.R. § 3.655 (2012). 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 or by the Court 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). _________________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).