Citation Nr: 20011240
Decision Date: 02/11/20	Archive Date: 02/11/20

DOCKET NO. 18-00 309A
DATE: February 11, 2020

REMANDED

Entitlement to a compensable rating for migraine headaches is remanded.  

REASONS FOR REMAND

The Veteran served on active duty from May 2006 to December 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

Under 38 C.F.R. § 20.1305(c), any pertinent evidence that is submitted to the Board, including evidence obtained and added to the file by VA, must be referred to VA for initial review unless this right is waived by the appellant or representative in writing or on the record during a hearing.  Additionally, under 38 U.S.C. § 7105(e)(1), for substantive appeals received on or after February 2, 2013, a waiver of VA review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance.  VA has not interpreted this automatic waiver to apply, as here, to evidence the appellant did not submit.  The AOJ issued a Statement of the Case on August 31, 2017.  Because the AOJ subsequently examined the Veteran for his migraine headaches on May 14, 2018 and the AOJ did not readjudicate this issue prior to certifying the appeal to the Board on March 19, 2019, remand for a Supplemental Statement of the Case is appropriate.  

The matters are REMANDED for the following action:

Review the evidence submitted subsequent to the May 2017 Statement of the Case.  Undertake any additional development deemed necessary.  Then readjudicate the issue on appeal.  

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Sopko, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.