Citation Nr: 1339098	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  10-22 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for service-connected migraine headaches.

2.  Entitlement to an initial rating in excess of 20 percent for service-connected lumbar disc herniation, L4-5 and L5-6.

3.  Entitlement to an initial rating in excess of 10 percent for service-connected cervical strain.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. Curameng, Counsel


INTRODUCTION

The Veteran had active duty service from January 2008 to July 2008. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  

A Board video conference hearing was scheduled for October 2011, but the Veteran failed to appear.  

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

In September 2011, the Veteran's representative noted that no supplemental statement of the case was issued subsequent to the February 2011 VA examinations.  The agency of original jurisdiction will furnish the appellant and his representative a Supplemental Statement of the Case if the agency of original jurisdiction receives additional pertinent evidence after a Statement of the Case has been issued and before the appeal is certified to the Board and the appellate record is transferred to the Board.  38 C.F.R. § 19.31 (b)(1).  Since it does not appear that a supplemental statement of case was subsequently issued after the VA examinations, appropriate action in this regard is therefore necessary. 

The representative additionally noted that there are outstanding VA treatment records.  In a statement received in June 2010, the Veteran reported treatment for migraine headaches in February and June 2010 at the VA medical center (VAMC) in East Orange.  Of record are VA treatment records dated from May 2009 to November 2009.  There are no additional records following this period of treatment in the claims file, Virtual VA file or VBMS file.  Accordingly, the RO should obtain the missing records in order to fulfill the VA's duty to assist the Veteran.  This is particularly so in view of the fact that these are records in the custody of the federal government and thus are constructively part of the record on appeal.

Accordingly, the case is REMANDED for the following action:

1.  The RO should secure copies of updated VA treatment records from East Orange, New Jersey VAMC dated from December 2009 onward. 

2.  After completion of the above, the RO should review the expanded record, to include the evidence received since the most recent supplemental statement of the case.  The RO should then determine whether any additional development is necessary.  The RO should then determine if higher ratings are warranted.  The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review. 

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. 2013).



_________________________________________________
MICHAEL MARTIN
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).