Citation Nr: 1621028 Decision Date: 05/24/16 Archive Date: 06/02/16 DOCKET NO. 11-05 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a disability rating higher than 10 percent for service-connected headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active service from July 1979 to July 1982 and April 1983 to August 2005, which includes service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran now resides in Texas, and the RO in Houston, Texas has current jurisdiction of this case. In March 2015, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A copy of the hearing transcript is of record and has been reviewed. In a May 2015 decision, the Board determined that the criteria for a separate 10 percent rating for headaches secondary to service-connected cervical spine disability had been met; and remanded for further development the issues of entitlement to increased ratings for the Veteran's cervical spine disability, lumbar spine disability, right shoulder disability, right knee disability and left knee disability; petition to reopen service connection claim for insomnia; service connection for flat feet, chronic fatigue syndrome, obstructive sleep apnea, gastrointestinal/ gastroesophageal disability, and cervical radiculopathy; and eligibility to an annual clothing allowance. The Veteran appealed the Board's May 2015 decision to the U. S. Court of Appeals for Veterans Claims ("Court"). In a March 2016 Order, the Court granted a Joint Motion for Partial Remand ("Joint Motion") which vacated the Board's May 2015 decision only to the extent that it denied a separate rating higher than 10 percent for headaches, determining that the Board did not provide adequate reasons and bases for its decision and did not fully address the duties to notify and assist. Accordingly, the Court remanded the issue of entitlement to a rating higher than 10 percent for headaches to the Board for further action consistent with the terms of the Joint Motion. The Court did not disturb the portion of the May 2015 Board decision that remanded the issues of increased ratings for the Veteran's cervical spine disability, lumbar spine disability, right shoulder disability, right knee disability and left knee disability; petition to reopen service connection claim for insomnia; service connection for flat feet, chronic fatigue syndrome, obstructive sleep apnea, gastrointestinal/gastroesophageal disability, and cervical radiculopathy; and eligibility to an annual clothing allowance. Moreover, the Board's review of the claims file shows that the Agency of Original Jurisdiction (AOJ) appears to be taking action on the remanded issues at this time. Because the Board's requested development of these issues has not yet been completed by the AOJ and issues have not been recertified to the Board, they are not properly before the Board at this time. However, they will be the subject of a subsequent Board decision, if not granted in full by the AOJ. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Based on the terms of the March 2016 Joint Motion, the Board finds that the Veteran should be provided a VA examination to help assist in determining the current severity of his service-connected headaches. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran's medical records have been obtained and associated with the claims file from: (a). Ireland Army Hospital dated from 2005-2013 (b). Grayson County Community Based Outpatient Clinic in Kentucky dated from 2011 to the present. (c). VA South Texas Health Care System dated from 2013 to the present. 2. Then, provide the Veteran with a VA examination to determine the current severity of his service-connected headaches. The Veteran's claims file must be made available to the examiner prior to the examination. After examining the Veteran and reviewing the claims file, the examiner is asked to: (a). Render findings as to the nature, frequency, and severity of the Veteran's headaches, specifically addressing the frequency, severity, and duration of any prostrating attacks. Specifically indicate whether the headaches occur on average once every two months, once a month, or most nearly approximate very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. (b). Fully identify, and assess the severity of, any manifestations of the Veteran's headaches not contemplated by DC 8100. (c). Comment on the functional effects, if any, of his service-connected headaches upon his ordinary activities, to specifically include work or employment. All examination findings, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Then, readjudicate the increased rating claim for headaches, to include extraschedular consideration. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. 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). _________________________________________________ BRADLEY W. HENNINGS 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).