Citation Nr: 1319557 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-43 560 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for migraine headaches, to include as secondary to service-connected disabilities. 2. Entitlement to an initial rating in excess of 30 percent for service-connected panic disorder without agoraphobia prior to January 25, 2012 , and a rating in excess of 70 percent thereafter. 3. Entitlement to an initial rating in excess of 20 percent for service-connected degenerative facet joint disease, lumbar spine, degenerative joint disease, right sacroiliac joint. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to April 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision. The Board notes that the October 2009 statement of the case (SOC) included 8 issues. However, the Veteran specifically indicated on her substantive appeal that she only wished to appeal the issues pertaining to her claimed migraine headaches, lumbar spine disability, and panic disorder; therefore, the remaining issues listed on the SOC are not currently on appeal before the Board. The Veteran was denied entitlement to TDIU in a September 2009 rating decision. The Board notes that this issue was not included in the October 2009 SOC. However, the Board has considered the recent holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he or she is unable to work due to a service connected disability). Therefore, in this case, as the Veteran has clearly indicated that she is unemployed or completely unemployable as result of her service-connected conditions, the Board finds that the issue of entitlement to TDIU should be considered as being on appeal in accordance with Rice, despite the fact that the issue was not properly appealed along with the other issue on appeal. In an October 2009 rating decision, the RO increased the evaluation assigned to the Veteran's service-connected panic disorder without agoraphobia from 0 percent to 30 percent, effective March 12, 2008. In an April 2012 rating decision, the RO increased the evaluation assigned to this disability to 70 percent, effective January 25, 2012. Since the RO did not assign the maximum disability rating possible, this appeal for a higher evaluations remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The record reflects that the Veteran submitted additional evidence to the Board in conjunction with this case accompanied by a waiver of initial review of this evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. Notice With regard to the Veteran's claim for service connection for migraine headaches as secondary to service-connected disabilities, the Veteran was issued an October 6, 2008, letter which provided the proper notice of the requirements for establishing service connection on a secondary basis. However, this letter was returned to VA as undeliverable. As such, the Veteran should again be given proper notice of the requirements for establishing secondary service connection according to 38 C.F.R. § 3.310. Records In October 2011, the Veteran submitted a copy of a July 2011 decision from Social Security Administration (SSA), which determined the Veteran to have been disabled under the Social Security Act beginning on August 31, 2008. This decision noted mitral valve prolapse with associated headaches, arthrosis and sclerosis of the lumbar spine, depression, and anxiety as being among the Veteran's severe impairments. VA has a duty to assist the Veteran in obtaining records in the custody of federal government agencies. As it appears that the Veteran has been receiving SSA disability benefits pertaining to the issues on appeal, Board finds that these issues must be remanded in order to obtain all available SSA records relating to disability benefits. The Veteran's Virtual VA paperless claims file contains an April 2012 rating decision which reflects that the Veteran underwent a VA mental disorder examination on January 25, 2012. As noted above, this examination resulted in an increase in the rating assigned to this disability to 70 percent, effective January 25, 2012. This April 2012 rating decision also reflects that the Veteran underwent a VA spine examination on January 20, 2012. Neither of these examinations has been associated with either the claims file or the Virtual VA paperless claims file. As such, upon remand, both of these examination reports must be obtained, as well as any other VA treatment records or examination reports that have not yet been associated with the claims file. The Veteran indicated in a September 2008 statement that she underwent a computer axial tomography (CAT) scan examination at the VA hospital in Lexington due to her headaches. In an October 2008 authorization and consent to release information form, the Veteran reported undergoing a CAT scan because of her headaches at the urgent care unit at the Lexington Cooper Division VA Medical Center (VAMC) in August 2008. An August 19, 2008, VA treatment record reflects that the Veteran was actually seen at the local emergency room on August 16, 2008. Regardless, attempts must be made to determine where this CAT scan was performed and to obtain the results. Finally, VA issued a Memorandum in November 2009 in which it was determined that the Veteran's complete service treatment records for the period of September 26, 1988, to April 15, 1994, are unavailable for review (no separation examination). However, the Board notes that the record reflects that the Veteran has had multiple last names. As such, the Board finds that another attempt should be made to obtain any and all service treatment records for the Veteran's active duty service from September 1988 to April 1994 under all last names under which the Veteran may have served. Examinations With regard specifically to the Veteran's claim for entitlement to TDIU, the Board finds that it is unclear from the evidence of record whether the Veteran is precluded solely by reason of any service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with her education and occupational experience. As such, the Veteran should be provided a VA general medical examination to determine whether she is currently precluded solely by reason of any service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with her education and occupational experience. With regard to the Veteran's claim for service connection for migraine headaches, the Veteran's representative asserted in the May 2013 Appellant's Brief that post-service treatment records reflect that the Veteran is being treated with Tramadol for her service-connected disorders. The representative argued that headaches are a potential side effect to Tramadol. The representative also argued that the Veteran's service-connected panic disorder or service-connected mitral valve prolapse with intermittent atrial arrhythmia may have caused or aggravated her headache disorder. The July 2011 SSA decision noted the Veteran as having mitral valve prolapse with associated headaches. Service treatment records document complaints and treatment for headaches, and post-service treatment records documents complaints of headaches. In December 2008, the Veteran underwent a VA examination. With regard to the question as to whether current headaches are related to headaches reported in military service, the examiner determined that it is not caused by or a result of tension headaches. The examiner noted that there is no chain of evidence for diagnosis of or treatment of chronic headaches either in service or following service. Her reported symptoms of severe headaches are typical of migraine. She reported headaches on her initial primary care visit reporting that they had been present for one month and had started related to "heart rhythm problem", which requires medical treatment. In light of the fact that the December 2008 VA opinion did not address whether the Veteran's headaches could have been caused or aggravated by a service-connected disability or medication used to treat a service-connected disability, the Board finds that the necessity for a new VA examination is shown for the proper assessment of the Veteran's claim. 38 U.S.C.A. § 5103A (West 2002). As such, the Veteran should be scheduled for a VA examination to determine whether she has a current headache disability of any kind that was caused or aggravated by her active duty service or any service-connected disabilities, to include treatment for service-connected disabilities. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a secondary service connection claim under 38 C.F.R. § 3.310. 2. Request and obtain any and all service treatment records for the Veteran's active duty service from September 1988 to April 1994 under all last names under which the Veteran may have served. 3. Obtain any and all relevant VA treatment records and VA examination reports that have not yet been associated with the claims file, to particularly include the January 20, 2012, VA spine examination report and the January 25, 2012, VA mental disorder examination report. 4. Obtain and associate with the claims file all available SSA disability records. 5. Send to the Veteran a letter requesting that she provide sufficient information, and if necessary, authorization to enable the RO to obtain any additional pertinent evidence not currently of record, to specifically include any medical records relating to her claimed CAT scan performed in August 2008. Attempts should be made to obtain these medical records. Associate any records received, including negative responses, with the claims file. 6. Schedule the Veteran for an appropriate VA examination for her claim for service connection for migraine headaches. All appropriate tests and studies should be performed and all clinical findings reported in detail. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Additionally, the examiner should elicit from the Veteran a history of symptoms relating to her migraine headaches. After reviewing the file, examining the Veteran, and noting her reported history of symptoms, the examiner should diagnose the Veteran with all headache disabilities. Then, opinions must be provided as to the following: a. whether it is at least as likely as not that any headache disability found on examination or diagnosed in the medical records had its onset in service or was otherwise caused or aggravated by her active service. Attention is invited to the documented complaints of headaches in service. The examiner is advised that the Veteran is competent to report symptoms she experienced in service and thereafter, despite a lack of documentation of treatment. b. whether it is at least as likely as not that any headache disability found on examination or diagnosed in the medical records was caused or aggravated by her service-connected disabilities, to include medications she takes for service-connected disabilities, such as Tramadol. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. The examiner must provide the underlying reasons for any opinions provided. 7. Schedule the Veteran for an appropriate VA examination for her claim for entitlement to TDIU. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should elicit a history from the Veteran regarding her recent employment and examine the Veteran thoroughly. After reviewing the file, noting the Veteran's reported history, and examining the Veteran, the examiner should render an opinion as to whether the Veteran is precluded solely by reason of her service-connected disabilities from securing and following any form of substantial gainful employment consistent with her education and occupational experience. The examiner is advised that only symptoms related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities or circumstances should be not be considered in this determination. If the Veteran's service-connected disabilities do not render her unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with her service-connected disabilities, given her current skill set and educational background. The examiner must provide the underlying reasons for any opinions provided. 8. Conduct any additional development deemed necessary based on the receipt any new evidence, to include the ordering of new VA examinations. 9. Then, readjudicate the claims. If the benefits sought remain denied, the Veteran should be provided a supplemental statement of the case (SSOC). After the Veteran and her representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that her cooperation in VA's efforts to develop her claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ Bethany L. Buck 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).