Citation Nr: 1514348 Decision Date: 04/02/15 Archive Date: 04/09/15 DOCKET NO. 04-16 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 10 percent for migraine headaches prior to November 30, 2010, in excess of 30 percent from November 30, 2010 to May 8, 2014, and in excess of 50 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to September 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2005 Decision Review Officer decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted entitlement to service connection or migraine headaches and assigned an initial 10 percent rating. A rating of 30 percent was assigned, effective November 30, 2010 in an August 2011 rating decision, and a rating of 50 percent was assigned in a June 2014 rating decision, effective May 8, 2014. However, as these ratings are still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to an initial rating in excess of 10 percent for migraine headaches prior to November 30, 2010 and in excess of 30 percent thereafter was before the Board previously and denied in a June 2012 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the parties (Secretary of VA and the Veteran) agreed that a remand was necessary and filed a Joint Motion for Remand with the Court, which the Court granted in an order issued that same month. While the Court's remand was being addressed by the Board, an increased rating claim for migraine headaches was decided by the RO in a June 2014 rating decision, which granted a rating of 50 percent from May 8, 2014. As this rating is part of the issue before the Board, that is, entitlement to a rating in excess of 30 percent from November 30, 2011 forward, the Board has jurisdiction over the 50 percent rating from May 8, 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand is necessary to allow for issuance of a supplemental statement of the case (SSOC). As discussed above, the issue of entitlement to a rating in excess of 50 percent for migraine headaches from May 8, 2014 is before the Board as part of the original initial rating issue. Thus, all evidence associated with that rating period is relevant to the initial rating claim. However, as the 50 percent rating period was adjudicated while the initial rating claim was still before the Board, none of the evidence associated with that period was considered in relation to the initial rating claim. Therefore, due process requires that a remand be issued so that an SSOC can be issued that addresses the propriety of all ratings assigned for the migraine headaches in light of all relevant evidence associated with the claims file. Accordingly, the case is REMANDED for the following action: Send the Veteran and her representative an SSOC for the issue of entitlement to an initial rating in excess of 10 percent for migraine headaches prior to November 30, 2010, in excess of 30 percent from November 30, 2010 to May 8, 2014, and in excess of 50 percent thereafter in consideration of all relevant evidence of record. If any benefit sought remains denied, return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). 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 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).