Citation Nr: 1752556	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  14-10 176	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to a rating in excess of 10 percent for tension vascular headaches (claimed as migraine headaches).


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Staskowski, Associate Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from September 2002 to December 2006.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO).  In January 2017 a videoconference hearing was held before the undersigned; a transcript is in the record.

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


REMAND

At the outset, the Board notes that an increased rating for the Veteran's headaches was denied because he failed to report for scheduled examinations.  At the January 2017 hearing the undersigned found that was been good cause for the Veteran's failure to appear for the scheduled VA examinations, and advised the Veteran of the provisions in 38 C.F.R. § 3.655.  He testified that he would be willing to report for an examination if one was rescheduled.  Accordingly, a remand for an examination to assess the current severity of the disability is necessary.

The Veteran is advised that under 38 C.F.R. § 3.655(b) a claimant fails to report for an examination scheduled in conjunction with a claim for an increased rating, the claim shall [emphasis added] be denied.

Accordingly, the case is REMANDED for the following:

1.  The AOJ should request the Veteran to provide a listing of the days of employment he missed since 2012 due to his headaches, and to provide authorization for VA to secure for the record employment record that would confirm such loss of days from work (and if available the reason for the absences).  The AOJ should obtain from the employers the confirmation sought.  If he authorizes the release of records, but the employer does not respond to the AOJ's request, he should be so advised.  

2.  The AOJ should secure for the record updated (to the present) records of any evaluations or treatment the Veteran has received for headaches.

3.  The AOJ should then arrange for a neurological examination of the Veteran to ascertain the current severity of his service-connected headache disability.  The record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed necessary should be completed.  Based on review of the record and interview/examination of the Veteran the examiner should provide an opinion that identifies:

(a)  The frequency of headaches.

(b)  The nature and severity of the headaches (i.e. whether prostrating, prolonged, relieved by any treatment).

(c)  The impact the headaches have on employment/employability.  The opinion should include discussion of the time has lost from work due to the headaches (and comment whether the Veteran's accounts of time lost are consistent with the clinical presentation of the disability).

The examiner must explain the rationale for all opinions.

4.  The AOJ should then review the record, and readjudicate the claim.  If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board.  

The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).


_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (West 2012), 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) (2017).