Citation Nr: 1635876 Decision Date: 09/14/16 Archive Date: 09/20/16 DOCKET NO. 12-22 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable rating for headaches. 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to September 3, 2015, and in excess of 50 percent from that date. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and J.G. ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to November 1967. The Veteran served in combat and was awarded the Combat Infantryman Badge and the Purple Heart. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In an April 2011 rating decision, the RO granted service connection for headaches as secondary to service-connected-connected gunshot wound scar below the left eye, effective July 14, 2010. This disability was assigned a noncompensable rating. The Veteran appealed the disability rating. In a January 2014 rating decision, the RO granted service connection for PTSD with an evaluation of 30 percent effective July 8, 2013. In November 2015, the RO increased the disability rating to 50 percent effective September 3, 2015. The United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status. In June 2016, the Veteran testified before the undersigned at a Board hearing via video conference from the RO. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At his Board hearing, the Veteran testified that his headaches and his PTSD had both worsened in severity. Therefore, he should be afforded a new examination in compliance with VA's duty to assist. See Snuffer v. Gober, 10 Vet. App. 400 (1997). With regard to PTSD, the Veteran testified that he was recently in a car accident which basically exacerbated his PTSD. His brother testified that the Veteran was displaying paranoia. The Veteran reported that he was having panic attacks; thoughts of suicide, anxiety, depression, memory impairment, increased isolation, and problems with crowds. He was seeing his VA provider every six weeks, per the availability. With regard to headaches, the Veteran indicated that he has prostrating headaches at least once a day, up to three days in a row. He stated that sometimes the headaches go away for 2-3 days and then return. For relief, he would take aspirin and lay down. He reported that the headaches can come on any time at night and he also would take aspirin then. The medication that he has received from VA had never worked. He reported that he is treated every six months at the Houston VA neurology clinic. In addition, he testified that he planned on seeing a private doctor in July 2016. He related that a scar was discovered on the left rear side of his eyeball from his shrapnel injury which he thought could be causing the pain and emphasized that he has experienced this pain for many years. He indicated that he was seen on September 1, 2015 at the East Texas Eye Institute. The Board notes that both the private and VA records should be obtained. Although VA records dated through July 2016 were recently added to the record, additional records may be available as this claim is being remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all clinical records of the Veteran's treatment at the Houston VA medical facility, including from their mental health and neurology clinics. 2. Contact the Veteran and request the complete contact information for his private provider for his headaches for which a July 2016 appointment was scheduled. 3. After securing the appropriate medical releases, obtain and associate with the record copies of all clinical records, which are not already in the record, of the Veteran's treatment by the provider identified in Paragraph #2 as well as from the East Texas Eye Institute including the September 1, 2015 examination report. The RO/AMC must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the record. 4. Schedule the Veteran for VA examinations to determine the nature and extent of his service-connected PTSD and headaches, respectively. The examiner(s) should review the record prior to examinations. The examinations should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for mental health disorders and headaches, respectively. The DBQs should be filled out completely as relevant. 5. Readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran 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). _________________________________________________ S. L. Kennedy 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).