Citation Nr: 1309302 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 04-39 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for posttraumatic headaches from July 17, 2001 to June 22, 2008. 2. Entitlement to a disability rating in excess of 30 percent for posttraumatic headaches from June 23, 2008. 3. Entitlement to total disability evaluation based on individual unemployability due to service connected disorders. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to December 1979. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In June 2008, the Veteran testified during a Travel Board hearing before the undersigned at the RO. A transcript of the hearing is of record. In February 2011, the Board denied entitlement to a disability rating in excess of 10 percent for posttraumatic headaches. The Veteran appealed, and in a September 2011 Joint Motion for Remand, the Secretary and the Veteran moved for the United States Court of Appeals for Veterans Claims (Court) to issue an order vacating the Board's decision. In September 2011, the Court vacated the February 2011 decision and remanded the case to the Board for further proceedings consistent with the Joint Motion for Remand. In March 2012, the Board denied entitlement to a disability rating in excess of 10 percent for posttraumatic headaches from July 17, 2001 to June 22, 2008 and a rating higher than 30 percent disabling from June 23, 2008. The Veteran again appealed, and in a September 2012 Joint Motion for Remand, the Secretary and the Veteran moved for the Court to issue an order vacating the Board's decision. In October 2012, the Court vacated the Board's March 2012 decision and remanded the case to the Board for further proceedings consistent with the Joint Motion for Remand. These issues are now again before the Board. In March 2012, the Board also remanded the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. The development ordered in that remand has yet to be completed, and that matter is discussed below. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 The Board finds that further development is needed before the issues on appeal may be decided. To that end, the Veteran contends that his service connected posttraumatic headaches warrant a rating of 50 percent disabling since July 17, 2001, and that he is entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. In February 2012, the Veteran submitted as evidence an employability evaluation from E. Hutchinson, a private Vocational Rehabilitation Consultant. Based on the medical record, ongoing symptoms and the Veteran's description of his past employment problems, Ms. Hutchinson opined that it was at least as likely as not that the Veteran's service connected headaches, neck pain and symptoms from fibromyalgia had rendered him unable to secure or follow a substantially gainful occupation. She opined that the appellant's unemployability dated back to January 2005. The Veteran was granted Social Security Administration disability benefits in June 2007. That decision was based on a finding that his multiple physical and mental impairments, i.e., dementia, fibromyalgia, thoracic outlet syndrome, cervical degenerative disc disease, residuals of a traumatic brain injury, organic mood disorder, depression, hypertension, and headaches in combination supported a determination that the appellant was then unable to work. In light of the October 2012 decision of the Court the Board is presented with the question of whether the Veteran's service connected posttraumatic headaches alone have caused severe economic inadaptability at any time since July 17, 2001, and if so, when did that inadaptability begin. While there is some evidence which addresses the cumulative impairment due to service connected and nonservice connected disorders, the limited issue whether posttraumatic headaches alone have caused severe economic inadaptability has not been directly addressed by a VA vocational rehabilitative expert. With respect to the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders the Board notes that the development ordered in the March 2012 remand is not complete. Hence, all of the instructions set forth in that remand are incorporated by reference, and must be completed before the case is returned to the Board. Stegall. Accordingly, the case is REMANDED for the following action: 1. Complete the instructions set forth in the Board's March 2012 remand. 2. Thereafter, schedule the Veteran for an examination by a VA Vocational Rehabilitation Counselor. The examiner must be provided access to the claims folder, Virtual VA, a copy of this remand, and all reports generated by the development set forth in paragraph 1. Following a review of all of the evidence, the vocational rehabilitation specialist must opine whether the appellant's post traumatic headaches alone have caused him severe economic inadaptability. If severe economic inadaptability due to headaches alone is found, the Counselor must offer an opinion explaining when that level of disability was first manifest. The examiner must specifically consider and discuss the February 2012 opinion of E. Hutchinson. The examiner must provide a complete rationale for any conclusion offered. 3. The Veteran is to be notified that it is his responsibility to report for all examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 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. 2012). _________________________________________________ DEREK R. BROWN 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) (2012).