Citation Nr: 1326252 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-43 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a respiratory disability, claimed as bronchial asthma. 2. Entitlement to a rating in excess of 30 percent for migraine headaches. 3. Entitlement to a rating in excess of 10 percent for endometriosis also claimed as chronic pelvic pain with dysfunctional uterine bleeding. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active military service from June 1989 to July 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana by way of the Togus RO in Augusta Maine. The Veteran testified at a videoconference hearing before the undersigned Veterans law Judge in December 2012. During the hearing, the Veteran was granted a 30-day abeyance in order to submit additional medical evidence she identified from Dr. A. D. In December 2012, the Board received the additional evidence with a waiver of initial RO consideration. Also during the hearing, the Veteran testified that she was unable to work due to her migraine headaches. The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. A review of the Virtual VA paperless claims processing system reveals only the additional, pertinent evidence of the Veteran's hearing transcript. The issue of whether the May 1993 rating decision that denied service connection for bronchial asthma contained clear and unmistakable error (CUE) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on her part is required. REMAND Inasmuch as the Board regrets the additional delay of these matters, a remand is required before the claims can be properly adjudicated. New and material evidence As noted, the issue on appeal is whether new and material evidence has been submitted to reopen a claim of entitlement to service connection bronchial asthma. During the videoconference hearing, the Veteran and her representative indicated that the May 1993 rating decision that denied service connection for bronchial asthma contained CUE. In this regard, she stated that she was treated with a respiratory disability during service and diagnosed with asthma shortly after service, but had not been service connected or rated. Under applicable laws and regulations, RO decisions that are final and binding will be accepted as correct in the absence of clear and unmistakable error. See 38 C.F.R. § 3.105(a) (2012); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Relevant to the Veteran's claim, the essence of a claim of clear and unmistakable error is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). The Board finds that this CUE claim is inextricably intertwined with the application to reopen the claim for service connection for bronchial asthma now on appeal. If the RO were to determine there was CUE in the prior RO decision of May 1993, the instant claim to reopen pertaining to bronchial asthma could be rendered moot. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)(issues are "inextricably intertwined " when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Hence, the Board may not proceed with appellate review of the new and material evidence issue until the RO has adjudicated the CUE claim. Increased ratings The Veteran contends that her migraine headaches are worse than the 30 percent evaluation it is assigned, and her endometriosis is worse than the 10 percent evaluation assigned. The Veteran was last provided VA examinations for migraine headaches, and endometriosis in April 2009. During the December 2012 hearing, the Veteran reported that her current symptoms of migraine headaches, and endometriosis were a greater degree of impairment than the currently assigned evaluations. She testified that due to her headache disability it was difficult for her to function and perform activities of daily living and take care of her daughter who is special needs. She also stated that her migraine headaches contributed to excessive absenteeism and subsequently, she was not able to go back to work. See pages 4-5 of the hearing transcript. She indicated that she experiences completely prostrating headaches at least once a month. The Veteran testified that the headaches can last an average of one whole week. See pages 7-8 of the hearing transcript. Relevant to her endometriosis claim, the Veteran testified that she experiences increasing pain and bleeding that is not always relieved by her treatment. See pages 17-18 of the hearing transcript. In this particular case, the April 2009 VA examinations are too remote in time to address the current severity of the Veteran's service-connected migraine headaches, and endometriosis. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that her disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The Board finds it must remand these matters to afford the Veteran an opportunity to undergo VA examinations to assess the current nature, extent, and severity of her migraine headaches, and endometriosis. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). In so doing, the examiner should note that Diagnostic Code 8100, contemplating migraines, provides that headaches with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. A maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). VA regulations, including the rating criteria, do not define "prostrating" as used in Diagnostic Code 8100. The Board notes that 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 1367 (28th ed. 1994) in which "prostration" is defined as "extreme exhaustion or powerlessness." Relevant to her endometriosis, the Veteran testified that she has had recent treatment from providers from Methodist Physicians Group. A review of the Veteran's file reveals treatment records from that agency dated through September 2009. All of the outstanding records must be secured. TDIU As noted above, the Veteran's claim for a TDIU is part and parcel of her claim for an increased rating claim namely, migraine headaches. The RO should adjudicate the issue of entitlement to a TDIU. Accordingly, the case is REMANDED for the following: 1. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant private medical records. The Veteran should specifically be requested to provide information regarding Methodist Physicians Group. Subsequently, and after securing the proper authorizations where necessary, the AMC must make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file by the AMC. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and her representative and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; and (c) describe any further action to be taken by the AMC with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Adjudicate the Veteran's claim that there was CUE in the May 1993 rating decision that denied service connection for bronchial asthma. In this regard, the Veteran asserts that the RO failed to service connect a diagnosed respiratory disability noted during service and shortly after service discharge. Notify the Veteran and her representative of the determination and furnish notice of appellate rights and procedures so that the Veteran may have the opportunity to initiate an appeal on the clear and unmistakable error issue if she so desires. 3. Take any necessary development and formally adjudicate the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the current residuals and severity of her service-connected headaches. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. Following completion of the examination, the examiner should specifically comment as to the frequency and severity of the migraine headaches, to include whether such headaches are very frequent and completely prostrating, and include prolonged attacks productive of severe economic inadaptability. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the current severity of her service-connected endometriosis. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA must be printed and associated with the paper claims file so they can be available to the examiner for review. All necessary tests should be conducted. Following completion of the examination, the examiner should identify and describe in detail all residuals attributable to the Veteran's service-endometriosis. The examiner should specifically state whether there are any lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain, heavy or irregular bleeding not controlled by treatment, or bowel or bladder symptoms. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, all claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). These claims 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). _________________________________________________ MARJORIE A. AUER 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).