Citation Nr: 21070893
Decision Date: 11/26/21	Archive Date: 11/26/21

DOCKET NO. 10-47 215A
DATE: November 26, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for mixed tension type and vascular headaches is remanded.

REASONS FOR REMAND

The appellant is a Veteran who served on active duty from December 1965 to December 1968.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision that, in pertinent part, granted service connection for headaches, rated 10 percent, effective August 27, 2008 (the date the claim was received).  In October 2015, a videoconference hearing was held before the undersigned; a transcript is in the record.  In December 2015 and November 2016, the case was remanded for additional development.  

A March 2018 Board decision denied entitlement to a rating in excess of 10 percent for headaches.  The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC).  Pursuant to a Joint Motion for Remand (JMR) filed by the parties, a March 2019 CAVC Order vacated the Board's decision, and remanded the matter for compliance with the JMR instructions.  In July 2019, the Board remanded the matter for additional development.    

An October 2020 Board decision again denied entitlement to a rating in excess of 10 percent for headaches.  The Veteran again appealed that decision to the CAVC, resulting in a September 2021 JMR by the parties.  A September 2021 CAVC Order vacated the Board's decision, and remanded the matter for compliance with the new JMR instructions.

Entitlement to a rating in excess of 10 percent for mixed tension type and vascular headaches.

In the September 2021 JMR, the parties agreed that vacatur with remand was warranted because the Board failed to provide adequate reasons or bases for its decision.  The parties specifically agreed the Board failed to address favorable evidence noted in a January 2008 treatment record (which they agreed "predates the appeal period by several months").  They also agreed that the Board noted the Veteran's periodic use of medications to relieve headaches, but "did not explain to what extent, if any, it was relying on the ameliorative effects of the medications in its determination."  The appeal was returned to the Board in mid-September 2021.   

In October 2021, VA received several lay statements from the Veteran that describe his headache manifestations.  

In November 2021, VA received an Additional Evidence Response Form, on which the Veteran endorsed the box stating: "Please remand (send back) my case to the AOJ for review of this additional evidence that I am submitting in my appeal."  [He waived any remaining time to submit additional evidence/argument, and acknowledged that choosing such option may significantly delay the Board's review of his appeal.]  Pursuant to 38 C.F.R. § 20.1305, the appeal must be remanded for the AOJ to consider this new evidence in the first instance.

The matter is REMANDED for the following:

Review the record, to specifically include the new evidence (lay statements) submitted by the Veteran in October 2021, arrange for any further development suggested, and readjudicate the claim.

 

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Dupont, 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.