Citation Nr: 1514976 Decision Date: 04/07/15 Archive Date: 04/21/15 DOCKET NO. 03-17 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a rating in excess of 10 percent for posttraumatic headaches with dizziness. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active duty from October 1967 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In October 2004, the Veteran testified during a hearing at the RO before the undersigned. A transcript of the hearing is of record. The Board most recently remanded the case in October 2009. Then, and in its October 2006 Remand, the Board noted that, in June 2004, the Veteran filed a claim of entitlement to service connection for diabetes mellitus. However, in a November 2004 rating decision, the RO indicated that he withdrew his claim in a September 14, 2004 statement. After review of that statement, the Board concluded that he did not withdraw his claim, and referred it to the RO for appropriate action. However, there is no indication that the RO has yet considered the Veteran's claim for service connection for diabetes mellitus and the matter is, again, referred to the RO for consideration and adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In 2008, the State of Washington sentenced the Veteran to more than two decades of confinement in the Washington State Penitentiary. The Board remanded this case in 2009 to attempt to examine the Veteran to comply with VA's Adjudication Procedure Manual ("Manual"). The Manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether the veteran should be escorted to a VA medical facility for examination by VHA personnel. If that is not possible, the veteran may be examined at the prison by: (1) VHA personnel; (2) prison medical providers at VA expense; or (3) fee-basis providers contracted by VHA. See M21-1MR, Part III.iv.3.A.11.d (2015). The record reveals VA exhausted all avenues to attempt to examine the Veteran, but that it was unable. Indeed, the Veteran's representative "commend[ed]" VA "for making reasonable efforts to obtain an examination" in its January 2015 Informal Hearing Presentation (IHP). Notwithstanding this, the Board agrees with the Veteran's representative medical comment is necessary before the Board decides the appeal. Therefore, the Board will remand the case to obtain a medical opinion based on the record, as suggested in the IHP and deemed possible by the RO as described in the electronic claims file. Accordingly, the case is REMANDED for the following action: 1. After obtaining the necessary authorization from the Veteran (or his wife who holds his power of attorney), the RO/AMC should obtain and associate with the claims files all medical records regarding the Veteran's treatment at the Kitsap County Corrections facility in Port Orchard, Washington, Washington State Penitentiary, and any other corrections facility in which he has been detained, for the period from October 2007 to the present. All attempts to secure those records must be documented in the claims files. 2. After attempting to obtain the above records in compliance with 38 C.F.R. § 3.159, a neurologist should review the electronic claims file and opine on the current severity and all manifestations of the residuals of the Veteran's service-connected post-traumatic headaches with dizziness. Any neurological impairment due to brain trauma should also be identified. In addition, the examiner should state (i) whether the Veteran has "migraine" headaches and, if so, whether such headaches are the result of the service-connected head injury and (ii) whether the Veteran has multi-infarct dementia associated with head trauma. 3. Thereafter, and following any other indicated development, the RO/AMC should prepare a new rating decision and readjudicate the appealed issue, to include consideration of whether an extraschedular evaluation of increased disability is warranted under 38 C.F.R. § 3.321(b). If the RO finds that the extraschedular criteria have been met, then the matter should be referred to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for appropriate action. If the appeal is denied, the Veteran and his representative should be provided a Supplemental Statement of the Case. They should then be afforded an applicable time to respond. 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 2014). _________________________________________________ D.C. SPICKLER 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).