Citation Nr: 21026580 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-36 283 DATE: May 3, 2021 REMANDED Entitlement to an increased disability evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a compensable evaluation for service-connected headaches (claimed as traumatic brain injury) is remanded. REASONS FOR REMAND The Veteran had active duty service from October 2001 to June 2010. These matters come before the Board of Veterans' Appeals (Board) from December 2011 and May 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in July 2020 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. While the Veteran's increased rating claim for headaches was never certified to the Board, as the Veteran perfected his appeal on that issue, the undersigned Veterans Law Judge held a hearing on the issue, and the Board will therefore proceed with its adjudication. See id.; June 2014 VA Form 9. 1. Entitlement to an increased disability evaluation in excess of 50 percent disabling for service-connected posttraumatic stress disorder (PTSD) is remanded. The Board notes that the most recent Statement of the Case was issued in May 2017. Since that time, additional VA treatment records, as well as a January 2019 VA examination report, were added to the claims file, of which are directly pertinent to the increased evaluation claim on appeal. Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, as in the present case, if the claimant or the claimant's representative submits evidence to the Agency of Original Jurisdiction (AOJ) or the Board for consideration in connection with the issue on appeal, then the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or a Supplemental Statement of the Case considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. However, this automatic AOJ waiver exception does not apply to evidence, such as the VA-generated records here, which were not submitted by the claimant or his attorney. Thus, in order to afford the Veteran every consideration, the Board finds that the Veteran's increased rating claim should be remanded to the AOJ for consideration of the aforesaid additional evidence, and if any benefit sought is not granted, for issuance of a Supplemental Statement of the Case. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. 2. Entitlement to a compensable evaluation for service-connected headaches (claimed as traumatic brain injury) is remanded. During the Veteran's July 2020 Board hearing, he indicated that his condition has worsened to the extent that he now suffers from headaches at least four to five times a week. The Board notes that the VA has not examined the severity level of the Veteran's headaches disability since April 2011. Given the Veteran's contentions of worsening of symptoms, and in light of the passage of time since his last VA examination, the Board finds that a remand for further examination to obtain contemporaneous clinical findings and appropriate testing results to assess the severity of the service-connected disability is needed. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any outstanding VA treatment records since 2018. 2. Schedule the Veteran for a VA examination to address the current severity level of his service-connected headaches disability. The VA examiner must elicit a full medical history from the Veteran regarding the severity of his headache symptomatology during the period on appeal, to include consideration of the lay testimony already of record indicating that he currently suffers approximately four to five headaches a week. See July 2020 Board hearing transcript. 3. Readjudicate the claims remaining on appeal, with consideration of all evidence associated with the claims file, especially as it concerns the Veteran's PTSD increased rating claim and the newly added evidence of record since the issuance of the May 2017 Statement of the Case. See January 2019 VA examination report; VA treatment records. If any benefit sought is not granted, then furnish the Veteran and his attorney with a Supplemental Statement of the Case and afford them an opportunity to respond before the record is returned to the Board for further review. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, Associate 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.