Citation Nr: 1760249
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-07 325 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas

THE ISSUES

1. Entitlement to a rating in excess of 50 percent for migraine headaches.

2. Entitlement to a rating in excess of 10 percent for a cervical spine disability.

3. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU).

REPRESENTATION

Veteran represented by: Paul C. Bunn, Agent

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. D. Cross, Associate Counsel

INTRODUCTION

The Veteran had active service from May 1984 to June 2002.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. A March 2016 rating decision increased the rating for migraine headaches to 50 percent, effective September 6, 2011.

In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record.

FINDING OF FACT

In a February 2012 videoconference hearing before the Board, the Veteran indicated he no longer wanted to pursue the appeal for a rating in excess of 50 percent for migraine headaches.

CONCLUSION OF LAW

The criteria for withdraw of the appeal for an increased rating for migraine headaches have been met. 38 U.S.C. § 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c) (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

During the February 2017 hearing before the Board, the Veteran indicated that he no longer wanted to pursue the appeal for an increased rating for migraine headaches.

A Veteran may withdraw a substantive appeal in writing at any time prior to the Board’s promulgation of a decision. 38 C.F.R. § 20.204 (2017). The Board finds that the Veteran effectively withdrew the substantive appeal for an increased rating for migraine headaches. Therefore, the Board concludes that no allegation of fact or law remains. In the absence of such assertions, the Veteran’s appeal regarding that issue should be dismissed. 38 U.S.C. § 7105 (2012).

ORDER

The appeal for increased rating for migraine headaches is dismissed.

REMAND

Although the Board regrets the additional delay, further development of the record is required to ensure that there is a complete record upon which to decide the claims.

The Veteran contends that he is entitled to an increased rating for a cervical spine disability due to increased frequent pain, and TDIU due to service connected disabilities and their impact on his ability to obtain employment.

During the February 2017 hearing, the Veteran testified that around 2016 he filed a formal claim with the Social Security Administration (SSA) regarding the claimed disabilities and their impact on his ability to obtain gainful employment. To date, there is no indication in the record that those documents have been obtained. VA must obtain all relevant VA, federal, and private treatment records which could potentially be helpful in resolving the Veteran’s claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Those records may provide information pertinent to the Veteran’s claims on appeal. Accordingly, before completing any of the development discussed in the sections below, any available disability benefits records from the SSA should be obtained.

Clinical documentation dated after August 2016 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. Obtain from the SSA any decisions and records pertinent to the Veteran’s claim for SSA disability benefits, to include any medical records concerning that claim. All efforts to obtain the records should be fully documented, and a negative response should be requested if no records are available.

2. Associate with the record any VA medical records not already of record pertaining to treatment of the Veteran, to include records after August 2016.

3. Schedule the Veteran for a VA examination of the cervical spine. The examiner must review the claims file and should note that review in the report. The examiner should provide ranges of cervical spine motion and should state whether there is additional impairment of function due to incoordination, painful motion, weakened motion, excess motion, fatigability, or on flare up. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities.

4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board.

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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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