Citation Nr: 1803353 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 06-10 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating prior to April 3, 2006; a rating in excess of 30 percent from April 3, 2006, to September 28, 2011; and a compensable rating as of September 29, 2011, for a headache disability. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from November 1996 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) that established service connection for cluster headaches and assigned a 0 percent rating, effective November 21, 2004. In March 2009, the Board remanded the claim to the Agency of Original Jurisdiction for further development. A May 2010 RO rating decision denied TDIU. In October 2012, the Board granted a 30 percent rating from April 3, 2006, to September 28, 2011, for the service-connected headache disability and denied compensable ratings prior to April 3, 2006, and as of September 29, 2011. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In September 2014, the United States Court of Appeals for Veterans Claims granted the Parties' Joint Motion for Partial Remand; vacated those portions of the October 2012 Board decision which denied compensable ratings prior to April 3, 2006, and as of September 29, 2011, and a rating in excess of 30 percent from April 3, 2006, to September 28, 2011, for the service-connected headache disability; and remanded those issues to the Board for additional action consistent with the Joint Motion for Partial Remand. REMAND The Parties' September 2014 Joint Motion for Partial Remand determined that the VA headache examination reports of record did not discuss the severity of the service-connected headache disability" absent medication" and were inadequate for rating purposes. Further, the Parties' concluded that the Board had not reviewed the complete record. The Board has no discretion and must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims' September 2014 Order granting the Joint Motion for Partial Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with United States Court of Appeals for Veterans Claims order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). Clinical documentation dated after February 2015 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide information as to all treatment of the service-connected headache disability since February 2015, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records not already of record, including for treatment provided since February 2015. 3. Schedule the Veteran for a VA headaches examination to assist in determining the nature and severity of the service-connected headache disability without consideration of the ameliorating effects of any medication. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Report the number and frequency of characteristic prostrating attacks, if any, during all relevant periods and any associated economic inadaptability as a result of the headaches. (b) Comment upon the frequency and severity of the headache disability without consideration of the ameliorating effects of any medication. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. 4. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).