Citation Nr: 1310463 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 08-05 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. 2. Entitlement to a compensable disability rating for service-connected tension headaches. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to August 1996. Service in Southwest Asia is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the Veteran's claims. In a February 2012 decision, the Board inter alia denied the Veteran's claims of entitlement to a compensable rating for service-connected tension headaches and entitlement to TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court). In July 2012, the Court partially vacated the Board's decision and remanded the issues to the Board for further consideration pursuant to a Joint Motion for Partial Remand dated earlier in July 2012. In a December 2012 letter, the Board provided the Veteran and his attorney the opportunity to submit additional evidence and argument in support of the appeal. In response to the Board's letter, the Veteran's attorney submitted further argument and evidence in February 2013, which included a waiver of local consideration of the newly added evidence. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The issues on appeal are REMANDED to the RO. VA will notify the Veteran if further action on his part is required. REMAND As indicated above, the Veteran's claims of entitlement to TDIU and entitlement to a compensable disability rating for service-connected tension headaches were remanded to the Board in a July 2012 Joint Motion for Partial Remand, as adopted by the Court's July 2012 Order. With respect to the Veteran's claim of entitlement to a compensable disability rating for service-connected tension headaches, the Joint Motion noted that the Board rated the Veteran's tension headaches by analogy to migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, which provides that migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating; migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating; and migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. See 38 C.F.R. § 4.124a, DC 8100. The Joint Motion indicated that the Board's analysis concerning the tension headaches claim failed to adequately explain why the Veteran's headaches were not prostrating, and did not provide adequate reasons or bases as to why the Veteran's statements concerning an average of one to two prostrating headaches per week were not credible. The parties further noted that the word 'prostrating' is not defined by VA regulation, and has several definitions aside from that used by the Board in the February 2012 decision. Additionally, the Joint Motion determined that "it is unclear from a review of the November 2009 VA general medical examination, which noted that the appellant had temporal headaches that occurred two to three times a week and described them as prostrating, whether this statement was merely a history provided by the appellant, or whether it was the examiner's medical conclusion following examination." With respect to the definition of prostrating as raised by the Joint Motion, the rating criteria do not define 'prostrating.' The Board additionally observes that neither the Court nor the United States Court of Appeals for the Federal Circuit have undertaken to define 'prostrating.' Cf. Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack. As noted in the Joint Motion, 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, (28th ed. 1994), p. 1367, in which "prostration" is defined as "extreme exhaustion or powerlessness." A review of the record demonstrates that the November 2009 VA examiner noted the Veteran experiences prostrating headaches, which occur an average of one to two times per week. As indicated above, the Joint Motion determined that it was unclear from a review of the November 2009 VA examination report whether the description of the Veteran's headaches as 'prostrating' was a history provided by the Veteran, or whether it was the examiner's medical conclusion. Accordingly, there remains a question of whether the Veteran suffers from prostrating headaches pursuant to 38 C.F.R. § 4.124a, DC 8100. A remand for a new VA examination should therefore be accomplished in order to address this outstanding question. See Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Moreover, the Board notes that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of a veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). As the Veteran was last afforded a VA examination more than three years ago with respect to his tension headaches claim, an updated examination must be scheduled. With regard to the TDIU claim, the Veteran's service-connected disabilities are: degenerative joint disease (DJD) of the lumbar spine and sacroiliac joints at 40 percent disabling; DJD of the left knee at 20 percent disabling; DJD of the right knee at 20 percent disabling; diabetes mellitus, type II, with bilateral diabetic retinopathy, peripheral neuropathy of the upper and lower extremities and erectile dysfunction at 20 percent disabling; gastroesophageal reflux disease (GERD) at 10 percent disabling; left foot heel spur at zero percent disabling; laceration scar of right ring finger at zero percent disabling; fungal infection of the toenails, bilaterally, at zero percent disabling; and pseudofolliculitis barbae at zero percent disabling. His combined disability rating is 70 percent, with one of his disabilities being at least 40 percent disabling. Therefore, the service-connected disabilities meet the schedular criteria for consideration of TDIU under 38 C.F.R. § 4.16(a). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2012). Critically, the Joint Motion noted that, in the February 2012 decision, the Board denied entitlement to TDIU based primarily on an October 2007 VA examination report which determined the Veteran could perform light physical or sedentary work. However, the parties found that the "Board's decision failed to provide an adequate discussion of the appellant's prior work history or his educational background, and discuss what type of sedentary work he could perform in light of his multiple service-connected disabilities." In consideration of the Joint Motion, the Board has reviewed the record and recognizes that the October 2007 VA examiner opined only that while the Veteran's service-connected disabilities would affect his ability to perform strenuous work, it did not prevent him from performing light physical or strenuous work. The examiner did not address impact of the Veteran's prior work history or his educational background on his employability, nor did the examiner suggest what type of work the Veteran would be able to perform in spite of his service-connected disabilities. The Board notes that the Veteran's attorney recently submitted an individual unemployability assessment dated January 2013 from a private professional, Mr. C.B., who appears to have credentials of a Masters in Education, and holds a certificate as a certified disability management specialist. In the January 2013 assessment, Mr. C.B. determined that the Veteran was unemployable due solely to his service-connected disabilities. Crucially, when VA undertakes to obtain a VA opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, in light of the July 2012 Joint Motion, the Board finds that a remand of this claim is warranted in order that the Veteran may be provided with a VA examination that adequately assesses the current severity of his service-connected disabilities, and what impact those disabilities may have on his employability. The examination report should also address the January 2013 report from Mr. C.B. Also, on remand, any pertinent records of ongoing treatment should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure any records of outstanding treatment that the Veteran has recently received. The Board is particularly interested in records of treatment that the Veteran may have received at the Birmingham, Alabama, VA health care system, or any other VA health care system, since November 2012. All such available documents should be associated with the claims file. 2. Schedule the Veteran for a VA examination for the purpose of determining the current severity of his service-connected tension headaches. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should provide a detailed account of all manifestations of the service-connected tension headaches found to be present. The examiner should then render an opinion regarding the frequency of the Veteran's tension headaches, and how often these headaches could be described as "prostrating" (see definitions above). Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment. A complete rationale should be given for all opinions and conclusions expressed. 3. Then, schedule the Veteran for a VA examination to determine the level of the disability caused by his service-connected disorders and whether his service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The claims file must be made available to the examiner for review. The examiner should specifically state whether the Veteran's service-connected disabilities, without regard to his age or the impact of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. In rendering the opinion, consideration should be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. Additionally, the examiner is asked to specifically comment on the January 2013 report from Mr. C.B. as well as the conclusions provided therein. The claims file and a copy of this remand must be made available to the examiner. The examiner is directed to conduct all necessary testing and report all findings in detail. A complete rationale should be given for all opinions and conclusions expressed. 4. Thereafter, readjudicate the claims remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).