Citation Nr: 1310097 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-06 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 2. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 4. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 5. Entitlement to service connection for migraine headaches, to include as secondary to service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and A.M. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2003 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2012. A copy of the transcript has been associated with the record. Additionally, evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. See the December 2012 Board hearing transcript, page 2; 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to an initial increased disability rating for service-connected cervical and thoracic spine disability as well as entitlement to service connection for migraine headaches and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a bilateral hip disability. 2. The Veteran does not have a current diagnosis of a bilateral knee disability. 3. The Veteran does not have a current diagnosis of a left ankle disability. CONCLUSIONS OF LAW 1. A bilateral hip disability was not incurred in or aggravated by active military service and is not related to the Veteran's service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. A bilateral knee disability was not incurred in or aggravated by active military service and is not related to the Veteran's service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 3. A left ankle disability was not incurred in or aggravated by active military service and is not related to the Veteran's service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a bilateral hip disability, a bilateral knee disability, and a left ankle disability, all to include as secondary to service-connected cervical spine and thoracic spine disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service connection claim." Here, the originating agency provided the Veteran with notice of the requirements to substantiate a claim for service connection on a direct basis, to include notice with respect to the effective-date element of the claim, by a letter mailed in July 2007, prior to the initial adjudication of his claims. The Board notes that the Veteran has not been provided notice of all elements required to substantiate a claim for service connection on a secondary basis, specifically evidence of a relationship between a current disability and a service-connected disability. Crucially, as will be discussed below, the Veteran's bilateral hip, bilateral knee, and left ankle disability claims were denied by the RO based on the absence of a current disability. Pertinently, the Veteran was advised in the July 2007 VCAA letter that in order to substantiate his service connection claims, he must provide evidence of a current disability, which is also a requirement for secondary service connection claims. Therefore, the Board finds that the essential fairness of the adjudication was not affected. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) [a timing error may be cured by a new VCAA notification followed by a readjudication of the claim]. The Veteran has pointed to no prejudice or due process concerns arising out of the absence of notice of all requirements to establish secondary service connection. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims and there is no reasonable possibility that further assistance would aid in substantiating these claims. The evidence of record includes the Veteran's statements, his service treatment records, photographs, and postservice VA treatment records. As noted above, the Veteran was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the Veteran's claimed bilateral hip disability, bilateral knee disability, and left ankle disability, and suggested the submission of evidence that would be beneficial to the Veteran's claims, namely evidence pertaining to nexus between the Veteran's claimed bilateral hip, bilateral knee, and left ankle disabilities and his military service or service-connected cervical and thoracic spine disability. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the criteria necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the criteria necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran was afforded a VA examination in December 2006 for his claimed bilateral hip, left knee, and left ankle disabilities. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that the VA examination report is adequate for evaluation purposes with regard to the Veteran's bilateral hip, left knee, and left ankle claims. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that the Veteran was not provided an examination and nexus opinion with regard to his claim for a right knee disability. Under 38 C.F.R. § 3.159(c)(4) (2012), VA will provide a medical examination or opinion if the information and evidence of record does not contain sufficient medical evidence for VA to make a decision on the claim but: (1) contains competent lay or medical evidence that the claimant has a current diagnosed disability, or persistent or recurring symptoms of disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that there is sufficient evidence to decide this claim, and that further medical examination or opinion is not necessary to decide the claim for service connection for a right knee disability. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present case, as discussed in further detail below, the competent and probative evidence does not show or indicate that the Veteran has a currently diagnosed right knee disability. The Board further notes that the Veteran was afforded an opportunity to have his right knee examined at the December 2006 VA examination. Pertinently, however, he did not complain of any right knee problems at that time. Accordingly, a VA examination is not warranted. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case, there is no competent and probative evidence which supports evidence of a current right knee disability. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of an accredited representative. He was afforded a videoconference hearing in December 2012. Accordingly, the Board will proceed to a decision as to the issues of entitlement to service connection for bilateral hip, bilateral knee, and left ankle disabilities. Service connection for bilateral hip, bilateral knee, and left ankle disabilities Because the outcome as to these issues involves the application of virtually similar law, the Board will address the three issues together. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In addition to disabilities that were incurred in, or aggravated by, active military service, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). With respect to secondary service connection, an analysis similar to the Court's decision in Hickson applies. There must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection presupposes a diagnosis of a current disability. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A "current disability" means a disability shown by competent medical evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran is claiming entitlement to service connection for bilateral hip, bilateral knee, and left ankle disabilities, to include as secondary to a service-connected cervical and thoracic spine disability. See, e.g., the Veteran's notice of disagreement dated March 2008; see also the December 2012 Board hearing transcript, page 10. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury or service-connected disability; and (3) medical nexus. See Hickson and Wallin, supra. With respect to element (1), the competent and probative evidence of record does not demonstrate that the Veteran is currently diagnosed with a bilateral hip, bilateral knee, or left ankle disability. Specifically, the competent and probative evidence of record is absent a finding of such. The Board notes that the Veteran was afforded a VA examination for his retirement from military service in December 2006. At that time, the Veteran complained of multiple problems, to include pain in his hips, left knee, and left ankle. As noted above, he did not complain of any symptoms associated with his right knee. After examination of the Veteran and consideration of his medical history, the VA examiner declined to diagnose the Veteran with a bilateral hip, left knee, or left ankle disability. He specifically noted that X-rays of the bilateral hips, left knee, and left ankle were normal. He reported that no substantial clinical findings or documentation were present to support the complaints of bilateral hip, left knee, or left ankle disabilities. As such, there was no diagnosis to which the examiner could attach a chronic disabling condition. The December 2006 VA examination report appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Board observes that K.W., LCSW, indicated in a November 2010 VA treatment record, a case management record, that a list of the Veteran's diagnosed disabilities included arthralgia of the knee. Crucially, however, there is no indication that this diagnosis was based on examination of the Veteran's knees or any other examination of his knees. As such, the Board finds that there is insufficient rationale for these findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. On the contrary, as discussed above, the Veteran has been afforded a VA examination for his left knee which revealed normal findings. Furthermore, the remainder of the competent and probative evidence of record, which includes multiple VA musculoskeletal evaluations, is absent any findings of a right or left knee disability. Accordingly, the Board finds that the November 2010 VA treatment record by K.W., LCSW, indicating a diagnosis of arthralgia of the knee is of no probative value in evaluating whether the Veteran currently suffers from a bilateral knee disability. The Board wishes to make it clear that it has no reason to doubt that the Veteran experiences certain symptoms such as pain in his hips, knees, and left ankle. However, symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including pain), as a lay person is not competent to associate any of his claimed symptoms to bilateral hip, bilateral knee, or left ankle disabilities. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a diagnosis of a bilateral hip, bilateral knee, or left ankle disability to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a current bilateral hip, bilateral knee, or left ankle disability. The Veteran has been accorded ample opportunity to present competent evidence of current disability in support of his claims of bilateral hip, bilateral knee, and left ankle disabilities. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board has not ignored or dismissed service treatment records, including treatment records dated March, April, and October 2004 as well as May and September 2005 documenting treatment for the Veteran's hips, knees, and left ankle. Furthermore, the Board recognizes the Court's decision in McClain v. Nicholson, 21 Vet. App. 319 (2007) [holding that the presence of a chronic disability at any time during the claim process can justify a grant of service connection where the record otherwise supports it, even where the most recent diagnosis is negative]. However, the Board observes that the December 2006 VA examination revealed normal findings with respect to the Veteran's claimed bilateral hip, left knee, and left ankle disabilities. The Board also notes that the Veteran did not complain of any symptoms associated with his right knee at that time. Indeed, the Board observes that, in this case the claimed disabilities, that is bilateral hip, bilateral knee, and left ankle disabilities resulting from the Veteran's military service, have not been noted at any time during the pendency of these claims, which dates to November 2006 when the Veteran filed his claims for bilateral hip condition, bilateral knee condition, and left ankle condition. Because the competent evidence of record does not show a current diagnosis of a bilateral hip, bilateral knee, or left ankle disability, the first Hickson/Wallin element is not met, and service connection is not warranted on that basis as to these claims. See Degmetich v. Brown, 104 F.3d 132 (Fed. Cir. 1997); see also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection cannot be granted if the claimed disability does not exist]. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for bilateral hip, bilateral knee, and left ankle disabilities, all to include as secondary to service-connected cervical and thoracic spine disability. The benefits sought on appeal are accordingly denied. ORDER Entitlement to service connection for a bilateral hip disability is denied. Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a left ankle disability is denied. REMAND Higher evaluation for cervical and thoracic spine disability A review of the record shows that the Veteran was last afforded a VA examination in December 2006 for his degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. He essentially contends that his service-connected disability has since increased in severity. Specifically, he stated that he requires medication for his cervical and thoracic spine disability and has increased pain. See the December 2012 Board hearing transcript, page 8. Moreover, he has received VA treatment for his spine disability on multiple occasions and has reported increased pain and decreased range of motion. In light of the foregoing, the Board finds that a contemporaneous VA examination is warranted to ascertain the current severity of the Veteran's service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) [Court determined that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating]; Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) [VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse]. Service connection for migraine headaches The Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the current medical evidence documents multiple diagnoses of migraine headaches. See, e.g., a VA treatment record dated May 2012. With respect to in-service disease or injury, the Board notes that the Veteran's service treatment records are absent complaints of or treatment for migraine headaches. The first competent evidence of headaches is dated in November 2006 when the Veteran filed his claim for VA benefits. Furthermore, the Veteran contends that his current migraine headaches are related to his military service. See, e.g., the Veteran's notice of disagreement dated March 2008. Moreover, he has indicated that he has continued to experience headaches since his discharge from military service. He has also contended that his migraine headaches are related to his service-connected cervical and thoracic spine disability. See the December 2012 Board hearing transcript, page 10. In light of the foregoing, the Board finds that there is evidence that the Veteran's migraine headaches may be related to his military service or his service-connected cervical and thoracic spine disability. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's current migraine headaches and his military service or his service-connected cervical and thoracic spine disability is warranted. TDIU The Board observes that the Veteran testified at the December 2012 Board hearing that had last worked in 2009 as an identification checker at an airport. He further indicated at the Board hearing that he has not worked since 2009 due in part to the pain from his service-connected cervical and thoracic spine disability. See the December 2012 Board hearing transcript, pgs. 6-7, 9. The Board therefore finds that the issue of a total disability rating for compensation based on individual unemployability (TDIU) has therefore arguably been raised. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The Court has held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. As such, on remand, the RO should adjudicate the Veteran's claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter which satisfies all VCAA notice obligations with regard to the issue of entitlement to TDIU, in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and any other applicable legal precedent. This notice letter should specifically apprise the Veteran of the evidence and information necessary to substantiate his claim for TDIU. Also, inform the Veteran of the division of responsibility between him and VA in producing or obtaining that evidence or information. The letter should include an explanation as to the information or evidence needed to establish a disability rating and an effective date in the event of award of the benefit sought, as outlined by the Court in Dingess/Hartman. 2. Schedule the Veteran for a VA examination for his service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. The claims folder is to be provided to the examiner for review in conjunction with the examination. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected cervical and thoracic spine disability as well as any neurological and orthopedic manifestations. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain as well as the impact of weight-bearing on the Veteran's range of motion. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. It is important for the examiner's report to include a description of the above factors that pertain to functional loss due to the cervical and thoracic spine disability that develops on use. Based on current examination of the Veteran as well as review of the evidence of record to include postservice treatment reports and prior physical examinations of the Veteran, the examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should also comment on the effect of the Veteran's cervical and thoracic spine disability on his employability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. Any report prepared must be typed. 3. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of his migraine headaches. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted. The examiner must provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater) that the Veteran's migraine headaches are related to his military service. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches are either (1) caused by, or (2) aggravated (i.e. permanently worsened beyond the normal progression of the disability) by his service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease. If the examiner finds that migraine headaches are aggravated by the service-connected degenerative arthritis of the cervical spine with right hand radiculopathy and degenerative arthritis of the thoracolumbar spine with disc disease, then he/she should quantify the degree of aggravation. The examiner should indicate in his/her report that the claims folder was reviewed and include the reasons behind any opinions expressed. A report should be prepared and associated with the Veteran's VA claims folder. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. When the development requested has been completed, readjudicate the Veteran's claims, to include his claim of entitlement to TDIU. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs