Citation Nr: 1806271	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  12-33 979A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for migraine headaches with benign positional vertigo.

2.  Entitlement to an initial rating in excess of 10 percent for left ankle strain.

3.  Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD).  


ATTORNEY FOR THE BOARD

J. Crawford, Associate Counsel






INTRODUCTION

The Veteran had active military service in the U.S. Navy from October 2001 to November 2009.  

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.  

In April 2017, the Board remanded the issues of service connection for a right breast cyst, service connection for abdominal pain, an initial rating in excess of 10 percent for GERD, an initial compensable rating for residuals of a left ankle strain, and an initial compensable rating for migraine headaches with benign positional vertigo for further development.

While on remand, in an October 2017 rating decision, the RO granted service connection for recurrent ovarian cysts and right breast cyst.  The RO noted that the Veteran's abdominal pain was due to recurring ovarian cysts, and considered the grant of service connection for recurrent ovarian cysts to be a full and final grant for the issue service connection for abdominal pain.  As the Veteran has not disagreed with the ratings or effective dates assigned for the service-connected right breast cyst and recurring ovarian cysts, the Board finds that this was a full grant of benefits and these issues are no longer before the Board.  

Additionally, in the October 2017 rating decision, the RO increased the rating for migraine headache to 30 percent from November 16, 2009 (day after separation from service), and increased the rating for left ankle strain to 10 percent from November 16, 2009.  As these grants did not constitute a full grant of the benefit sought, these claims remain on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

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


REMAND

In April 2017, the Veteran completed a medical provider release form for a release of her medical records to VA.  See April 2017 VA 21-4142 Authorization for Release of Information.  On the form, the Veteran indicated that she had received treatment for her service-connected GERD, left ankle strain, and migraine headache from Walter Reed Medical Center and Branch Health Clinic.  A review of the record shows that VA made an attempt to obtain these records from these facilities, but no response was received.  See May 2017 VA-3101 Request for Information.  As these are federal records, VA will make as many requests as are necessary to obtain relevant records until VA concludes that the records sought do not exist or that further efforts to obtain them would be futile.  As the record reflects that VA has only made one valid attempt to obtain these records, on remand, additional efforts should be undertaken.  38 C.F.R. § 3.159(c)(2) (2017).  

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any outstanding VA treatment records and associate with the claims file.

2.  Make additional attempts to obtain the Veteran's medical records from Walter Reed Medical Center and Branch Health Clinic as identified in the April 2017 VA Form 21-4142.  All efforts to obtain such records should be documented in the claims file.  If any records are not obtained, and it is determined that additional attempts would be futile, the Veteran should be notified of such.  

3.  After the above development has been completed, review the file and ensure that all development sought in this remand is completed.  Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claim.  If any of the issues remain denied, issue an appropriate supplemental statement of the case (SSOC) and afford the Veteran the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.  

The appellant has the right to submit additional evidence and argument on the matter or matters 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 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. §§ 5109B, 7112 (2012).




_________________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (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).