Citation Nr: 1317236 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-27 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected residuals of a head injury, to include migraine headaches. 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1954 to September 1957. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connection for migraine headaches, and assigned an initial disability rating of 10 percent, effective April 11, 2008. The Veteran disagreed with the assigned initial rating, and perfected this appeal. Original jurisdiction in this case now rests with the RO in Detroit, Michigan. The Veteran testified at a Travel Board hearing which was chaired by the undersigned Acting Veterans Law Judge at the Detroit RO in October 2010. A transcript of the hearing has been associated with the Veteran's VA claims folder. In December 2010, the Board remanded the Veteran's initial rating claim for further development. In the remand, the Board raised a claim of TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and also remanded this claim for further development. In a March 2012 rating decision, VA increased the disability rating for service-connected migraine headaches from 10 to 30 percent, effective April 11, 2008. Because a disability rating greater than 30 percent is available for migraine headaches, and because the Veteran is presumed to seek the maximum available benefit for a disability, the Board has continued this claim on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's claim for TDIU was denied in a March 2012 Supplemental Statement of the Case. In December 2012, the Board remanded the Veteran's appeal for a second time so that additional records could be obtained, and so that a new VA examination could be scheduled. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ) via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND Although the additional delay is regrettable, both issues on appeal must be remanded again at this time to ensure compliance with the Board's prior December 2012 remand instructions, and to afford the Veteran an opportunity to submit additional medical evidence in support of his claim. I. Noncompliance with the Board's December 2012 Remand A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. The Court of Appeals for Veterans Claims (the Court) addressed this issue in Stegall v. West, 11 Vet. App. 268 (1998), wherein it stated that where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance. Because some aspects of the Board's previously requested development have not been adequately completed, both issues on appeal must again be remanded at this time. A. Outstanding VA Treatment Records In its December 2012 remand, the Board specifically instructed the agency of original jurisdiction (AOJ) to obtain the Veteran's updated VA treatment records from both the Ann Arbor and Detroit, Michigan VA Medical Centers (VAMCs), dating from October 2010 to the present day. As was correctly pointed out by the Veteran's representative in an April 2013 Post-Remand Brief, it appears that the AMC only requested and obtained VA treatment records from the Ann Arbor VAMC, and did not attempt [or at least did not document any attempt] to obtain any existing records located at the VAMC in Detroit. Indeed, the Board specified in its December 2012 instructions that if any requested records were unavailable, such unavailability must be clearly documented in the claims folder, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). In this connection, even if the AMC did request the Veteran's VA medical records from the Detroit VAMC but no relevant records in fact existed at that facility, the AMC still failed to comply with the Board's specific instruction to document the unavailability in the record and comply with the notice obligations set forth in 38 C.F.R. § 3.159(e). Thus, additional attempts to obtain the Veteran's outstanding VA treatment records are required. B. VA Medical Opinion In December 2012, the Board also instructed the AOJ to ensure that a VA examiner provide an opinion as to whether the Veteran's service-connected bilateral hearing loss, tinnitus, and residuals of a head injury (including, but not limited to, migraine headaches), when considered together, preclude the Veteran from obtaining or retaining gainful employment. See the Board's December 2012 remand, at 13-14. Although the AOJ did in fact obtain medical opinions from a March 2013 VA TBI examiner and an April 2013 VA physician that address the individual impact each of the Veteran's service-connected disabilities have on his employability, these assessments do not adequately discuss the extent to which all of the Veteran's service-connected disabilities, in combination, render the Veteran unable to secure or follow a substantially gainful occupation, if at all. Thus, as is suggested by the Veteran's representative in his April 2013 Post-Remand Brief, this failure to obtain an adequate medical opinion constitutes noncompliance with the Board's December 2012 remand instructions, and a new medical opinion must be secured. The Board recognizes that the March 2013 VA TBI examiner indicated that the Veteran had no current residuals of his in-service head injury, and specifically determined on page five of his report that the Veteran's headaches were not associated with his in-service TBI. Based on this finding, it follows that the VA examiner would conclude as he did that no TBI residuals have an effect on the Veteran's ability to work. See the March 2013 VA examiner's report, at 7. Notwithstanding this conclusion, the Board wishes to make clear that VA has already determined that the Veteran's migraine headache disability has been etiologically related to his in-service head injury. Service-connection for residuals of this head injury, to include headaches, has been duly awarded, and a 30 percent disability rating assigned. While not calling into question the validity of the March 2013 VA examiner's medical conclusions, for the purposes of this appeal, any current inquiry into what effects the Veteran's service-connected disabilities indeed may have on his employability must include consideration of any contributory effects of the Veteran's service-connected headache disability. Thus, a new medical opinion should be obtained from a VA physician to determine whether the Veteran's service-connected disabilities, in concert, prevent him from securing or following a substantially gainful occupation. The VA reviewing physician should assume as true that the Veteran's service-connected TBI residuals include migraine headaches, notwithstanding the findings of the March 2013 VA examiner to the contrary. II. Potentially Relevant Private Treatment Records The March 2013 VA TBI examiner noted that the Veteran was involved in a motor vehicle accident during the summer of 2012, when he was seen at "UofM" for a concussion and multiple trauma/fractures. The examiner indicated that the Veteran was "admitted to sub-acute rehabilitation for several weeks after being medically stabilized," and noted the Veteran's current complaints of dizziness, headaches, and problems walking/poor balance. The Veteran specified that he had no issues with walking prior to the 2012 motor vehicle accident. See the March 2013 VA examiner's report, at 2. Similarly, a September 12, 2012 VA outpatient note also documented the Veteran's treatment following this accident, indicating that the Veteran was "life-flighted to [the] UofM trauma center and stayed 3 weeks." He then was discharged to G.H. rehabilitation center on September 5, 2012, and discharged to home on September 18, 2012. Records of this private medical treatment are not currently on file. In light of the fact that the Board is remanding this appeal for other reasons at this time, the Board believes that the Veteran should be afforded an opportunity to submit, or to request that VA obtain, any additional relevant private treatment records, to include those pertaining to his care immediately following his 2012 motor vehicle accident, which remain outstanding that he believes would be supportive of his claims. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) Accordingly, the case is REMANDED to the AOJ for the following actions: 1. Obtain all relevant ongoing VA treatment records dating since October 2010 from the VA Medical Center in Detroit, Michigan, as well as all relevant treatment records dating since January 2013 from the VA Medical Center in Ann Arbor, Michigan. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all private health care providers who have treated him for his claimed head injury residuals. Of particular interest are any medical records showing treatment at the UofM trauma center and/or the G.H. rehabilitation center following the Veteran's 2012 motor vehicle accident. After securing any necessary releases, request any identified records that are not duplicates of those contained in the claims file. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). Following receipt of authorization, two attempts should be made to obtain relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012); 38 C.F.R. § 3.159(c)(1). 3. After completion of the development described in items (1) and (2) above, obtain a medical opinion from an appropriate VA clinician assessing the impact the Veteran's service-connected disabilities have, if any, on his ability to secure or follow a substantially gainful occupation. The entire claims file (i.e. both the paper claims file and any relevant medical records contained in Virtual VA), should be made available to and be reviewed by the examiner in conjunction with the examination, and the examiner should confirm that such records were available for review. Upon review of the Veteran's claims folder, the physician should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is as likely as not (50 percent probability or greater) that his service-connected disabilities, either alone or in concert, render him unable to secure or follow a substantially gainful employment consistent with his education and employment background. For the purposes of this inquiry, the physician should assume as true that the Veteran's service-connected head injury residuals do in fact include migraine headaches, notwithstanding the findings of the March 2013 VA examiner to the contrary. A thorough rationale must be provided for any opinion expressed and conclusion reached. 4. After the development requested above has been completed to the extent possible, the record (to include any and all relevant evidence added to the Veteran's Virtual VA folder) should again be reviewed, and the Veteran's initial rating and TDIU claims should be readjudicated. If the benefits sought on appeal remain denied, in whole or in part, then the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). _________________________________________________ M. Sorisio Acting 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 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).