Citation Nr: 1336797	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  10-40 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1. Entitlement to service connection for prostatitis.

2. Entitlement to an initial rating in excess of 10 percent for migraines.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel
INTRODUCTION

The Veteran served on active duty from March 1989 to March 2009.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, acting on behalf of the RO of jurisdiction, San Diego, California.  The Veteran testified before the undersigned Veterans Law Judge at a video hearing in July 2013.  A hearing transcript was associated with the claims file.

This appeal was processed using a paperless claims file accessed through Virtual VA and VBMS, which are highly secured electronic repositories that are used to store and review documents involved in the claims process.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

In a statement dated in August 2013, the Veteran's representative raised the issues of entitlement to increased ratings for left knee and back disabilities.  These issues are referred to the RO for adjudication.

The issue of an initial rating in excess of 30 percent for migraines is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  On the record at a July 17, 2013 Board hearing and before promulgation of a decision on the appeal, the Veteran requested a withdrawal of his appeal for the denial of service connection for prostatitis.

2.  The Veteran has had completely prostrating migraine attacks at least once per month since the effective date of service connection.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).

2.  The criteria for an initial rating of 30 percent for migraines have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Withdrawn Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202.  At any time before the Board promulgates a decision, an appellant or his or her authorized representative may withdraw a substantive appeal as to any or all issues either on the record at a hearing or in writing.  38 C.F.R. § 20.204. 

In this case, the Veteran testified on the record during a July 17, 2013 Board hearing that he wished to withdraw his appeal of the denial of service connection for prostatitis, in accordance with 38 C.F.R. § 20.204.  This request was received by the Board prior to the promulgation of a decision on the appeal.  As such, there remain no allegations of error of fact or law for appellate consideration as to this issue.  Therefore, the Board has no jurisdiction to review this appeal, and the appeal is dismissed.  See 38 C.F.R. § 20.202.

Migraines

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  No further notice or assistance is required to aid the Veteran in substantiating entitlement to a 30 the percent rating granted in this decision.

A 10 percent rating is provided for migraines manifested by characteristic prostrating averaging one in 2 months over the last several months.  A 30 percent rating is provided for migraines manifested by characteristic prostrating attacks occurring on average of once a month over the last several months.

At the most recent VA examination in November 2010, it was indicated that the Veteran was having occasional prostrating migraines, but their frequency was not specifically reported.  He reported that he had to leave his job approximately four to five times per year.  At his hearing the Veteran clarified that he experienced prostrating attacks one to two times per month.  He explained that he only worked approximately 15 days per month and that the frequency with which he left employment was not indicative of the frequency of prostrating attacks.  There is very little evidence as to the severity of the migraines since the effective date of service connection.

This evidence is to the effect that migraines cause at least one characteristic prostrating attack per month.  Accordingly, a 30 percent initial rating has been warranted since the effective date of service connection.



ORDER

The appeal of the denial of service connection for prostatitis is dismissed.

An initial rating of 30 percent for migraines is granted.





REMAND

In September 2013, VA received a letter dated August 2013 from the Veteran's treating physician at the Naval Branch Health Clinic.  The physician indicated that the Veteran's chronic migraines had worsened in the two years prior.  The Veteran also testified that he had been receiving treatment for migraines at that facility.

VA has a duty under these circumstances to afford the Veteran a current examination and obtain the relevant treatment records.  

Accordingly, the case is REMANDED for the following action:

1.  Take the necessary steps to obtain all records of the Veteran's treatment for migraines at the Naval Branch Health Clinic.

2.  After completing the above, schedule the Veteran for a VA examination to determine the current status of his migraines, including any effect on his occupation.

3.  If any benefit sought on appeal remains denied issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter 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. 2013).



______________________________________________
Mark D. Hindin
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) (2013).
Department of Veterans Affairs