Citation Nr: 1805662	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  04-30 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for post-traumatic headaches, to include a separate or higher rating under Diagnostic Code 8045.


ATTORNEY FOR THE BOARD

D. Barrett, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1982 to April 1986. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied a higher rating for post-traumatic headaches.  Jurisdiction over this case currently lies with the Atlanta RO.

This matter was previously remanded by the Board in May 2007, January 2011, September 2012, August 2014, and March 2016.  

In a December 2016 rating decision, the RO awarded service connection for traumatic brain injury (TBI) and assigned an initial rating of 40 percent, effective February 27, 2003.

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


REMAND

While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim is decided.

The Board observes that additional evidence was received at the RO after the aforementioned December 2016 rating decision and the most recent supplemental statement of the case (SSOC) were issued in December 2016.  The additional evidence consists of argument from the Veteran dated in March 2017 and Disability Benefits Questionnaires (DBQs) completed in April 2017 (for service-connected post-traumatic headaches) and in June 2017 (or service-connected TBI).  Numerous CAPRI records dated through December 2017 were also added to the claims file.

When additional evidence is received by the AOJ prior to the transfer of records to the Board, an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record or the additional evidence is not relevant to the issue on appeal.  38 C.F.R. § 19.37 (2017).  Notably, the aforementioned DBQs, and some of the CAPRI records, are relevant to the increased rating claim currently on appeal.  

As explained in the Board's last remand, the Veteran's service-connected disability of post-traumatic headaches was initially rated under hyphenated Diagnostic Code 9403-8045, and thus was initially evaluated as "brain disease due to trauma."  In October 2008, during the pendency of this appeal, Diagnostic Code 8045 was revised and is currently titled "residuals of traumatic brain injury."  As such, it is apparent the Veteran was initially service-connected for a TBI, which included his residual post-concussive headaches.  The appeal has been pending from a June 2003 rating decision.

A rating decision (continuing a 40 percent rating for TBI), instead of an additional SSOC was issued in September 2017, even though this appeal has been pending from a June 2003 rating decision.  No further adjudication, by way of an SSOC, has taken place regarding the headaches since the additional evidence was received.  Accordingly, the Board concludes that a remand is necessary for the issuance of an SSOC.  

Accordingly, the case is REMANDED for the following action:

Issue an appropriate SSOC on the claim for an initial rating for post-traumatic headaches, to include a separate or higher rating under Diagnostic Code 8045, in light of the new evidence received since the December 2016 SSOC, to include March 2017 written argument from the Veteran, headache and TBI DBQs completed in April 2017 and in June 2017, respectively; and the CAPRI records dated through December 2017.  

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 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).



_________________________________________________
D. JOHNSON
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).