Citation Nr: 1318194 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-38 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a right hip disorder, to include as secondary to left hip, bilateral lower leg, and bilateral ankle disabilities. 2. What evaluation is warranted for migraine headaches since November 9, 2006? 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from January 1998 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In that rating decision, the RO, inter alia, awarded service connection for migraine headaches and assigned an initial 10 percent evaluation, effective from November 9, 2006; it also denied entitlement to service connection for a right hip disorder. Although the RO awarded an increased 30 percent evaluation for migraine headaches, effective from November 9, 2006, during the pendency of this appeal (see January 2012 rating decision), this does not represent the maximum benefit available for this disability. Hence, the Veteran's appeal for a higher initial evaluation for migraine headaches continues. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2013, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of that hearing is associated with the claims file. Throughout this appeal the Veteran has asserted that she is unemployable due to her migraine headaches. The United States Court of Appeals for Veterans Claims has held that a claim of entitlement to a total disability evaluation based on individual unemployability is part and parcel of a claim for initial- or increased-rating. Rice v. Shinseki, 22 Vet. App. 47 (2009). As such, the issue of entitlement to individual unemployability benefits is in appellate status and added to the issues on the cover sheet. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. For reasons discussed below, this 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 Review of the record reveals that additional development to be necessary to fulfill VA's duty to assist. Regarding the claim of entitlement to service connection for a right hip disorder, remand is necessary to obtain outstanding relevant VA treatment records. The Veteran testified at her March 2013 hearing that she was treated at the VA Medical Center in Manchester, New Hampshire around 1999 for orthopedic problems. The claims file does not show that records have been requested from this facility for this time period. As those records are within VA's constructive possession, a remand is required to obtain them. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A remand is also required for the purpose of obtaining an additional medical opinion addressing the etiology of any current right hip disorder. The Board notes that once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, a January 2007 VA examination report indicates the Veteran reported a history of bilateral hip pain since service. The examiner's assessment was bilateral hip stress fractures with chronic pain residuals, but an opinion addressing the etiology of the fractures was not provided. Pertinent to this remand, the January 2007 examiner failed to discuss what clinical and/or lay evidence was relied upon to reach the diagnosis of right hip stress fracture given that a March 1998 bone scan was devoid of any mention of stress fracture to the right hip or pubic rami. Hence, absent further discussion of this diagnosis and an opinion regarding the etiology of any current right hip disorder, remand is necessary to obtain an addendum opinion. Id. Turning to the claim of entitlement to an initial higher rating for migraine headaches remand is necessary to obtain outstanding VA and non-VA treatment reports. Evidence of record indicates the Veteran has sought treatment for migraine headaches at the Albany and Northampton VA Medical Centers since November 2006, however, the claims file does not contain any records from the Albany facility and only has records from the Northampton facility dated from January to August 2011. See Bell, 2 Vet. App. at 613. Regarding outstanding private medical evidence, the Veteran in 2013 testified that she had been seen at various emergency departments for severe nausea associated with her headaches approximately five times in the prior year. The record currently contains emergency department records dated through June 2007, but no later. Thus, the RO/AMC should afford the Veteran an opportunity to provide information sufficient to obtain these pertinent records. See 38 C.F.R. § 3.159 (2012). Additionally, the RO/AMC should obtain another VA examination regarding the severity and functional impact of the Veteran's migraine headaches. The record contains medical evidence that the Veteran has been diagnosed with a number of conditions that result in similar symptoms, including an anxiety disorder and fibromyalgia, a nonservice connected disorder. In evaluating the severity and impact of the Veteran's migraine headaches, the examiner must attempt to separate the pathology presented by these conditions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examiner should also discuss the impact of migraine headaches on the Veteran's economic productivity. Finally, with respect to the inferred claim of entitlement to a total disability evaluation based on individual unemployability, the Agency of Original Jurisdiction has yet to consider the Veteran's statements that her service-connected disabilities, including migraine headaches, render her unemployable. Pursuant to Rice this claim is part and parcel to her claim for a higher rating. Hence, the RO/AMC must develop the claim of entitlement to individual unemployability. To the extent that the percentage requirements for benefits under the provisions of 38 C.F.R. § 4.16(a) may not be met at various times during this appeal, the RO/AMC must document their consideration of the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) as necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to request the names and addresses of all medical care providers who have treated her for a right hip disorder and/or migraine headaches since service that have not been previously identified. This letter should specifically request information regarding any private emergency department visits since June 2007 for treatment of migraine headaches. After the Veteran has signed the appropriate releases, those records should be obtained and those records not already associated with the claims file should be associated with the claims file. The Veteran and her representative are to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit records for VA review. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. 2. Obtain all outstanding, pertinent records of evaluation and/or treatment of the Veteran from the Manchester VA Medical Center (since May 1998), the Albany VA Medical Center (since November 2006), and the Northampton VA Medical Center (from December 2006 to January 2011 and since August 2011). All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Thereafter, provide the examiner who conducted the January 2007 examination access to the Veteran's claims file and her Virtual VA file to permit the preparation of an addendum addressing the etiology of any current right hip disorder. Following a review of all pertinent evidence, the examiner must clarify the assessment of 'right hip stress fracture' provided in the original report. Specifically, the examiner should discuss what clinical and/or lay evidence was used to derive this diagnosis. The examiner should also identify any current right hip disorder, to include any right hip stress fracture residuals. Then, with respect to each diagnosed right hip disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset during or is otherwise related to the Veteran's active military service. If the examiner is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examiner must specifically explain why the etiology of any diagnosed right hip disorder is unknowable. A complete rationale must accompany each opinion offered. The Veteran should only be scheduled for an examination if the January 2007 examiner deems one necessary to answer the above questions or is unavailable for review. 4. The Veteran must be scheduled for a VA examination to determine the current nature and severity of her migraine headaches. Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of service-connected migraine headaches. The examiner must, to the extent possible, identify and differentiate all manifestations directly attributable to migraine headaches, as opposed to her service-connected anxiety disorder and nonservice-connected fibromyalgia. If symptoms due to the migraine headache disorder cannot be distinguished from those caused by anxiety and/or fibromyalgia, that fact must be so stated, and an explanation provided why the symptoms cannot be distinguished. The examiner must address the impact that the Veteran's migraine headaches have on her ability to work, to include whether her headaches are productive of severe economic inadaptability and/or render her unable to obtain and/or maintain substantially gainful employment. A complete rationale for any opinion expressed must be provided. 5. Consider whether the Veteran is entitled to total disability evaluation based on individual unemployability at any time during this appeal based on impairment attributable to her service-connected disabilities, in accordance with Rice. As necessary, the RO/AMC should consider the claim on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The RO/AMC 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. Appropriate notice and development should be undertaken with regard to this issue. 6. After the development requested has been completed, the AMC/RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners documented their consideration of Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 7. The Veteran is to be notified that it is her responsibility to report for the examinations and to cooperate in the development of her 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 any of the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 8. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issues on appeal, to include entitlement to a total disability evaluation based on individual unemployability. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and her representative, if any, must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ 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).