Citation Nr: 1220587 Decision Date: 06/13/12 Archive Date: 06/22/12 DOCKET NO. 08-21 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to an increased rating for migraine headaches, currently rated as 10 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in December 2006, a statement of the case was issued in June 2008, and a substantive appeal was received in July 2008. The Veteran presented testimony at a Board hearing in February 2012. A transcript of the hearing is associated with the Veteran's claims folder. The Board notes that in the Veteran's December 2006 notice of disagreement, she also disagreed with the denial of service connection for stress incontinence. The RO granted the claim by way of a June 2008 rating decision. The granting of service connection constituted a complete grant of the claim. Consequently the issue is not before the Board. The Veteran has since filed increase rating claims in regards to her stress incontinence. However, she has not submitted a notice of disagreement with the June 2011 rating decision that increased her rating to 60 percent. Finally, the Board notes that by way of a July 2011 correspondence, the Veteran withdrew a claim for entitlement to a TDIU. However, at her February 2012 Board hearing, she testified that although she is trying to work, she is currently unemployed due to her migraine headaches and other service connected disabilities. The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Migraines The Board notes that the Veteran's most recent VA examination for headaches occurred in July 2006. At the examination, she reported that she was getting headaches 2-3 per week (each lasting approximately 1-2 hours). She reported that sometimes she has to lie down until the headache resolves; however, she stated that she has not had to miss any school or work as a result of the headaches. The examiner noted that the Veteran has begun taking an anti-migraine abortive, which has resulted in improvement with regards to the frequency and duration of the headaches. At the Veteran's February 2012 Board hearing, she reported that she suffers from 4-6 incapacitating episodes per month; and that occasionally she had to leave work early or skip work entirely because of the severity of the pain and her inability to drive. She testified that she is currently unemployed, in part due to the effect that the headaches have on her ability to work. She also submitted additional treatment reports from Columbus Clinic Specialty. The Board notes that it has been almost 6 years since the Veteran's most recent VA examination. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In comparing the Veteran's reported symptoms from July 2006 and February 2012, it appears that the Veteran's disability has become more severe since the most recent VA examination. Consequently, the Board finds that a VA examination is warranted for determining the current severity of the disability. In so doing, the examiner should be note that Diagnostic Code 8100, contemplating migraines, provides that headaches with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. A maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2011). VA regulations, including the rating criteria, do not define "prostrating" as used in Diagnostic Code 8100. The Board notes that according to Webster's New World Dictionary Of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994) in which "prostration" is defined as "extreme exhaustion or powerlessness." TDIU As noted above, the Veteran's claim for a TDIU is part and parcel of her claim for an increased rating for migraine headaches. The RO should adjudicate the issue of entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Make sure that the VA records are updated and in the claims folder. 2. The RO should schedule the Veteran for a VA examination for the purpose of determining the current severity of her migraine headaches. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any special tests deemed medically advisable should be conducted. The examiner should render an opinion regarding the frequency of the Veteran's migraine headaches, and how often these headaches could be described as "prostrating" (see definitions above). 3. The RO should then take any necessary development and formally adjudicate the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 4. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2011).