Citation Nr: 0003312 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-06 786A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE The propriety of the initial 10 percent evaluation assigned for a headache disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had verified active military service from November 1987 to January 1996 with an additional period of six years, nine months and twenty-five days of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1996 rating decision in which the RO granted service connection for a headache disorder and assigned a 10 percent disability rating. The veteran appealed and requested a hearing before a member of the Board at the RO. By statement of April 1999, the veteran indicated that he was too ill to appear for a hearing and requested that his claim be considered based on the record alone. Inasmuch as the appeal involving the veteran's headache disorder is from an original award, the issue has been framed as shown on the title page of this decision. See Fenderson v. West, 12 Vet. App. 119 (1999) (appeals from original awards are not construed as claims for increased ratings). By rating decision of January 1997, the RO denied service connection for left ulnar neuropathy. In a March 1997 statement (submitted on a VA Form 9 which identifies a substantive appeal to the Board), the veteran expressed disagreement with the denial of service connection for left ulnar neuropathy and a desire to appeal that issue. Thereafter, the RO issued a SOC on the issue of entitlement to service connection for left ulnar neuropathy. The veteran did not perfect his appeal and the January 1997 rating decision became final. 38 C.F.R. § 20.302 (1999). By statement of June 1999, the veteran attempted to reopen his claim of entitlement to service connection for a left elbow disorder (previously characterized as left ulnar neuropathy). In a July 1999 rating decision, the RO found that new and material evidence had not been submitted to reopen the prior final decision that denied service connection for a left elbow disorder. The veteran has not, as yet, filed a NOD to the July 1999 rating decision; therefore, that issue is not before the Board for appellate consideration at this time. By rating decision of June 1999, the RO denied service connection for hepatitis C. The veteran disagreed with the denial of service connection for hepatitis C. For reasons that will be fully explained below, a remand is required for the purpose of issuing a statement of the case (SOC) on the issue of entitlement to service connection for hepatitis C. See Manlincon v. West 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). REMAND The veteran's headaches have been rated by under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100 pertaining to migraine. This diagnostic code provides that, where evidence establishes that the claimant experiences "characteristic prostrating" attacks on average of one attack in two months over the last several months, a 10 percent rating is warranted. 38 C.F.R. § 4.124, Diagnostic Code 8100 (1999). Where such attacks are less frequent, a zero percent rating is assigned. Id. Where such attacks occur on an average of once a month over last several months, a 30 percent rating is warranted. Id. Where there are very frequent completely prostrating and prolonged attacks productive of "severe" economic inadaptability, a 50 percent rating is warranted. Id. On VA examination in March 1996, the veteran complained of headaches, which rose from his shoulders up into the back of his neck and head. The diagnostic impression was suggestive of tension headaches. At the time the RO granted service connection for headaches in June 1996, the RO appears to have relied only on evidence contained in the service medical records which documented a number of complaints related to headaches in service and subsequent treatment therefor. No specific comment was made regarding the findings on the March 1996 VA examination with regard to assessing the current severity of the veteran's headache disorder. This is not, in itself, significant, however, as the VA examiner in March 1996 did not address the frequency or duration of the veteran's headaches, or whether the veteran experienced "prostrating" attacks of headaches. However, subsequent to the March 1996 VA examination, the veteran has complained of an increased frequency of headaches. In his July 1999 NOD, the veteran reported having "almost daily" headaches. Without current clinical findings, a decision with regard to the veteran's claim for a higher rating cannot be accomplished. In this regard, reference is made to Caffrey v. Brown, 6 Vet. App. 377 (1994). Based on the foregoing, and in light of the absence of necessary clinical findings to assess the current severity of the veteran's headache disorder, a remand is required. As noted above, the June 1999 rating decision, in part, denied service connection for hepatitis C. Thereafter, in a statement received at the RO on June 21, 1999, the veteran expressed disagreement with the June 1999 rating decision; this is sufficient to qualify as a notice of disagreement (NOD) under the regulations. 38 C.F.R. § 20.201 (1999). The veteran was not issued a statement of the case (SOC) on this issue. As such, the RO is now required to send the veteran a SOC on the issue of entitlement to service connection for hepatitis C in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that where a NOD has been submitted, the veteran is entitled to a SOC. The failure to issue a SOC is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). Accordingly, this case is REMANDED for the following action: 1. The RO should send the veteran a SOC on the issue of entitlement to service connection for hepatitis C in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the veteran perfects his appeal by submitting a timely and adequate substantive appeal, then the RO should return the claim to the Board for appellate consideration. 2. With respect to the veteran's claim for a higher rating for his service- connected headache disorder, the RO should contact the veteran and ask him whether he has received any treatment for headaches since March 1996, the date of the last VA examination for this disorder. Based on his response, and with appropriate authorizations, the RO should obtain a copy of all medical records pertaining to treatment of headaches from the identified source(s), and associate them with the claims folder. 3. Following the receipt of the above evidence, the RO should schedule the veteran for a VA neurological examination. The purpose of the examination is to ascertain the current severity of the veteran's service- connected headache disorder. The entire claims file, including a copy of this REMAND, must be provided to, and be reviewed by the examiner. All findings should be reported in detail. Following examination, the VA examiner should comment specifically on the frequency and duration of the veteran's headaches. If the veteran headaches are found to be representative of characteristic prostrating attacks, the VA examiner should indicate whether these attacks are productive of severe economic inadaptability. 4. The RO should review the above- referenced examination report to determine if it is in compliance with the REMAND. If deficient in any manner, it should be returned, along with the claims file, for immediate corrective action. 5. After completion of the foregoing, and any other development deemed warranted by the record, the RO should re-adjudicate the veteran's claim for a higher initial rating for his headache disorder, with consideration of Fenderson, supra. If any decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond before the case is returned to the Board for further review. 6. The veteran and his representative are hereby reminded that in order to obtain appellate review of the issue for service connection for hepatitis C, after issuance of a statement of the case, a timely substantive appeal must be filed. The purpose of this REMAND is to obtain additional development and adjudication, and no inference should be drawn regarding the final disposition of this claim. The veteran need take no action until otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for further development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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) (1999).