Citation Nr: 1804702 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 06-00 350A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for headaches from September 30, 2004 through August 9, 2013. 2. Entitlement to a rating in excess of 30 percent for headaches from August 10, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to February 1967. This matter comes to the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2005 rating decision, by the Oakland, California, Regional Office (RO), which granted service connection for headaches and assigned a noncompensable rating, effective September 30, 2004. The Veteran perfected a timely appeal to that decision. The Board notes that, in his substantive appeal, received in January 2006, the Veteran requested a hearing on appeal before a Veterans Law Judge at the RO (Travel Board hearing). However, in a statement dated February 8, 2007, the Veteran indicated that he did not want a hearing. 38 U.S.C. § 20.704 (e) (2012). In December 2009, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in August 2010. Subsequently, in a March 2014 rating decision, the RO increased the Veteran's rating for headaches from 0 percent to 30 percent, effective August 10, 2013. SSOCs were issued in March 2014 and October 2014. In a December 2015 decision, the Board granted a 10 percent rating for the period from September 30, 2004 through August 9, 2013, but denied entitlement to a rating in excess of 30 percent from August 10, 2013. The Veteran appealed the Board's December 2015 decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Partial Remand (JMPR) was submitted in December 2016; and later in December 2016, the Court issued an Order granting the JMPR. The Court vacated the December 2015 Board decision. The matter was remanded to the Board for readjudication consistent with the motion. In May 2017, the Board remanded this matter for further evidentiary development. That development has not been completed and another remand is therefore necessary. Essentially, other than VA sending a letter to the Veteran, nothing has changed since the Board last remanded this case, hence there is no need to seek additional argument at this point as to do so would only delay the case with no benefit to the Veteran. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that he is entitled to an initial rating in excess of 10 percent for his headaches prior to August 10, 2013, and a rating excess of 30 percent after that date. After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The Veteran's service-connected migraine headaches is currently evaluated 30 percent disabling under 38 C.F.R. § 4.1249 (a), Diagnostic Code 8100. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. A 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). In Pierce v. Principi, 18 Vet. App. 440, 446 (2004), the Court held that "nothing in [Diagnostic Code] 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating." As noted in the introduction section, in May 2017, the Board remanded the Veteran's claim to the RO in order to ascertain whether or not the Veteran's headaches met the criteria for an evaluation in excess of 10 percent prior to August 10, 2013, and in excess of 30 percent after that date. Specifically, the May 2017 remand directives instructed the RO to obtain any outstanding records from any facilities identified by the Veteran, and to obtain any headache diaries or calendars kept by the Veteran over the years. The RO was also directed to provide the Veteran with a VA examination to evaluate the severity of the migraine headaches. In a May 2017 letter, the AOJ asked that the Veteran complete a VA Form 21-4142, Authorization to Disclose Information, and a VA Form 21-4142a, General Release for Medical Provider Information. No response was received to this letter. In this regard, the Board notes that, while efforts were made to obtain the records release, it does not appear that the Veteran was afforded a neurological examination as the Board directed. Because all action ordered in the Board's May 2017Remand was not completed, this matter must, once again, be remanded for such action. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). The Board emphasizes that while VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the discussion above, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. Obtain and associate with the claims file any existing relevant VA treatment records not already associated with the claims file. If there are no additional VA treatment records, indicate such in the claims file. 2. The Veteran must be scheduled for a VA examination to determine the nature and severity of his service-connected headaches. The claims file must be made available to the examiner for review in connection with the examination. All indicated studies should be performed, and all findings reported in detail. The examiner especially needs to provide specific findings addressing the rating criteria listed under 38 C.F.R. § 4.124a (neurological conditions and convulsive disorders) (2014), for DC 8100 (migraines). The examiner should make specific findings concerning the frequency and nature of the Veteran's migraine headaches as follows: a) Specifically comment on whether the Veteran has any "characteristic prostrating attacks," and if he does, specify their frequency. b) Specific findings are requested on whether the migraine headaches are very frequent, completely prostrating, and/or prolonged, and productive of severe economic inadaptability. The examiner must provide a rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. To help avoid future remand, the AOJ must ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, readjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, both he and his representative should be furnished an SSOC and afforded an appropriate opportunity to respond thereto before the case is returned to the Board. The Veteran 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 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. §§ 5109B, 7112 (2012). _________________________________________________ JAMES G. REINHART 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) (2017).