Citation Nr: 1551793 Decision Date: 12/10/15 Archive Date: 12/16/15 DOCKET NO. 14-16 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for chronic headaches since December 17, 1993. 2. Entitlement to an evaluation in excess of 30 percent for chronic headaches since February 27, 2009. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from September 1954 to October 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which awarded entitlement to service connection for chronic headaches and assigned a noncompensable evaluation between December 17, 1993 and February 26, 2009, and a 30 percent evaluation effective February 27, 2009. The Veteran appealed the assigned evaluation asserting, in part, that the 30 percent evaluation should be awarded throughout the appeal period, i.e., dating from December 1993. The RO has certified the issue on appeal as entitlement to an earlier effective date for the assigned 30 percent evaluation. Under Fenderson v. West, 12 Vet. App. 119 (1999), however, the Board must review the adequacy of the evaluations assigned throughout the appellate period, including the effective date assigned to the 30 percent evaluation in question. As such, the Board has characterized the issue as reflected above so as to consider intermediate evaluation levels throughout the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND In assigning the initial evaluation on appeal VA, in part, considered VA treatment records dating from December 22, 1999. See, e.g., January 2014 statement of the case. During the course of the instant appeal, the Veteran's claims file has been converted from a paper file into a "virtual" claims file, utilizing both Virtual VA and the Veterans Benefits Management System (VBMS). Upon review of the virtual claims file, the Board notes that VA treatment records generated prior to October 2000 have not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998). In order to ensure the Board's ability to review a complete record, any outstanding VA treatment records must be obtained and associated with the virtual claims file prior to adjudicating the appeal on the merits. The evidence shows that the Veteran has not been provided a VA examination to evaluation the severity of his chronic headaches since February 2009, a period of over seven years. On remand, the Veteran should be provided a new VA examination to assist the Board in determining the current severity of the Veteran's disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file all outstanding VA treatment records. Specifically, any treatment records generated by VA facilities prior to October 2000, and since May 2011 must be obtained. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter the RO must schedule the Veteran for a VA examination to address the severity of his service-connected recurrent headaches. The examiner is to be provided access to the claims folder, the VBMS file, the Virtual VA file and a copy of this remand. The examiner must specify in the report that these records have been reviewed. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of any headache disability. The examiner must specifically state the nature and frequency of any headaches that are manifested by prostrating attacks. A complete rationale for any opinions expressed must be provided. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DEREK R. BROWN 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) (2015).