Citation Nr: 1518170	
Decision Date: 04/28/15    Archive Date: 05/05/15

DOCKET NO.  12-22 346	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an initial compensable rating prior to March 20, 2013, and in excess of 10 percent thereafter for service-connected headaches.

2.  Entitlement to an initial compensable rating for service-connected traumatic brain injury (TBI).


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney 


ATTORNEY FOR THE BOARD

N. Sonia, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 11, 1969 to March 12, 1970 and from March 13, 1970 to June 1, 1972.

This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran signed and submitted a VA Form 9, dated August 14, 2012 in which he indicated that he wanted an in-person hearing at his local VA regional office with respect to the issue of entitlement to an initial higher rating for service-connected headaches.  

However, another VA Form 9 was submitted, dated August 16, 2012, which was signed by representative, and not the Veteran.  There was no hearing requested.  The Veteran and his representative were sent a letter from the Board seeking clarification as to whether he still wished to have a hearing on the issue of entitlement to an initial higher rating for service-connected headaches.  The Veteran was advised that if he (or his representative) did not respond within thirty days, the Board would use his previous selection in scheduling his hearing.  Neither the Veteran, nor his representative, provided a response to the letter.  As such, a remand is necessary to schedule the Veteran for the requested hearing.  

Although the Veteran did not request a hearing on the issue of entitlement to an initial compensable rating for TBI residuals, headaches are a symptom associated with the TBI residuals rating criteria.  See 38 C.F.R. § 4.130, Diagnostic Code 8045.  As such, adjudication of the Veteran's initial increased rating claim for TBI is so closely related to adjudication of his headaches claim, that both issues should be considered together to ensure proper ratings are assigned.  

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a Travel Board hearing, in the order that the request was received.  He should be notified of the date and time of the hearing, as appropriate.  After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures.

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).


_________________________________________________
MICHELLE L. KANE
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).