Citation Nr: 1316293 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-39 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from November 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In May 2011, the Board denied the Veteran's claims for entitlement to service connection for headaches and entitlement to TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court vacated part of the May 2011 decision and remanded the matter to the Board for further development. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for headaches and TDIU. A remand is necessary in order to comply with the Court's decision in July 2012. The Court vacated the Board's May 2011 decision because it was determined that the Board failed to adequately explain why a medical examination was not necessary with regard to the Veteran's claim for benefits for headaches. Additionally, the Court found that the Veteran's TDIU claim was inextricably intertwined with the Veteran's service-connection claim. The Board notes that the Veteran's service treatment records indicate several complaints of headaches. See December 1965 note, March 1966 note, and September 1965 Report of Medical History. To date, the Veteran has not been afforded a VA examination and a medical opinion has not yet been obtained regarding the nature and etiology of his claimed headaches. As such, the Board finds a remand is necessary to afford the Veteran a VA examination and to obtain a medical opinion. Additionally, the Court found that the Veteran's TDIU claim is inextricably intertwined with his pending service-connection claim for headaches. As such, the Board will defer a decision on the TDIU claim pending completion of the development ordered on remand to avoid piecemeal adjudication. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran an in-person examination for his headaches. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. All current headache disorders should be diagnosed. After the claims file is reviewed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's current headaches are causally or etiologically due to service, had their onset during service, or are proximately due to or aggravated by his service-connected corneal scar of the right eye. In rendering these opinions, the examiner should consider the Veteran's statements regarding the onset of his headaches, including the documented headaches during service. The examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. 3. The Veteran should also be afforded an examination to determine whether the Veteran, based on his work history, level of education, and service-connected disabilities, but not his age or any nonservice-connected disability, is unable to secure or follow a substantially gainful occupation. The examiner should obtain a complete work history from the Veteran, including the specific duties that were required in each position. The examiner should discuss all impairment and/or symptoms caused by the service-connected disabilities and state whether associated impairment renders him unable to secure or follow a substantially gainful occupation. This should be discussed in terms of sedentary and manual type of employment. The examiner should specifically address what type of duties the Veteran would be capable of performing in light of his service-connected disabilities and what duties he would not be able to perform. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished. An explanation for all opinions expressed must be provided. The rationale for the opinion should include a discussion of the impact of the Veteran's service-connected disability, his past work history/duties and his educational background. The examiner should not take into consideration the Veteran's age or whether it may be difficult for the Veteran to find employment. Rather, the opinion should focus on whether the Veteran's service-connected disability prevents him from performing the physical and mental acts required for a substantially gainful occupation. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. 4. The RO should then readjudicate the Veteran's claim for service connection for headaches as well as entitlement to TDIU. The AOJ shall consider the issue of whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16(a) and (b) on the basis of the Veteran's service-connected condition(s). In so doing, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary. The AOJ should also make a determination as to whether any employment during the appeal period can be considered marginal employment. 5. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if appropriate. The Board intimates no opinion as to the ultimate outcome of this case. 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).