Citation Nr: 1636490 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 13-26 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for adjustment disorder with depressive mood. 2. Entitlement to a disability rating in excess of 30 percent for cluster headaches. REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1976 to August 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In July 2016, the Veteran testified before the undersigned Veterans' Law Judge (VLJ) via videoconference. A copy of the hearing transcript is of record and has been reviewed. In August 2010, the Veteran filed a claim for service connection for adjustment disorder with depression. A January 2011 rating decision granted that claim, assigning a 10 percent evaluation effective August 27, 2010, the date of claim. In August 2011, in response, the Veteran had filed a Notice of Disagreement (NOD), contending that his adjustment disorder was more severe than the 10 percent rating assigned. A subsequent July 2013 rating decision granted the Veteran's claim and increased the disability rating for his adjustment disorder with depression to 30 percent, effective August 27, 2010. The Veteran since has continued to appeal for even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (noting that it is presumed a claimant is seeking the greatest possible rating for a disability unless he/she specifically indicates otherwise). The claim now concerns whether an initial rating in excess of 30 percent is warranted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND Concerning the claim for entitlement to an initial disability rating in excess of 30 percent for adjustment disorder with depression, in the Veteran's July 2016 hearing, he testified that he received private treatment for his adjustment disorder every two weeks for the past 15 years. Additionally, for both his adjustment disorder and his cluster headache disabilities, the Veteran testified that he received VA treatment at the Bricktown and East Orange medical centers. A letter from the Social Security Administration noted that the Veteran has been disabled since December 2006. Finally, the Veteran testified that his last VA examination to evaluate his adjustment disorder was in January 2011 while his last examination to evaluate his headaches was in September 2010. He stated that his disabilities had worsened since his last VA examinations. A remand is necessary to associate and obtain all VA and private treatment records for the Veteran's service-connected adjustment disorder and headache disabilities, to obtain the Veteran's complete Social Security records (including all decisions and any medical records relied upon in making those decisions), and to afford the Veteran new examinations to determine the current nature, extent, and severity of his adjustment disorder with depression and cluster headaches. Accordingly, the case is REMANDED for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims for adjustment disorder with depression and cluster headaches. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. 2. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and his agent and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform him that he is ultimately responsible for providing the evidence. The Veteran and his agent must then be given an opportunity to respond. 3. Contact the SSA, request and obtain the Veteran's complete Social Security records, including all decisions and any medical records relied upon in making those decisions. 4. After the above has been completed, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected adjustment disorder with depression. The entire claims folder including this remand should be made available to and reviewed by the examiner. All necessary tests should be performed and all findings should be reported in detail. The examiner is asked to: a. Determine all current manifestations associated with the Veteran's service-connected adjustment disorder with depression. b. Specifically address the degree of social and occupational impairment caused by the Veteran's adjustment disorder with depression. 5. Provide the Veteran with a new VA medical examination to address the current nature, extent, and severity of his service-connected cluster headaches. The entire claims folder including this remand should be made available to and reviewed by the examiner. All necessary tests should be performed and all findings should be reported in detail. The examiner is asked to: a. Determine the frequency of any prostrating attacks. The VA examiner should also note whether the Veteran experiences prostrating and prolonged attacks productive of severe economic inadaptability. The Board notes that in his July 2016 hearing, the Veteran testified that he had prostrating attacks every two weeks. b. Determine the effect of the Veteran's headaches on his activities of daily living and his ability to perform occupational tasks in a work like setting (regardless as to whether the Veteran is not presently employed). 6. After completing the above actions, and any other indicated development, the claims must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his agent. After the Veteran and his agent have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ A. C. MACKENZIE 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).