Citation Nr: 1330150	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  09-23 361	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial rating higher than 10 percent for headaches for the period prior to January 7, 2008, and higher than 30 percent for the period since.

2.  Entitlement to a total disability evaluation on the basis of individual unemployability 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel



INTRODUCTION

The Veteran served on active duty from February 1976 to February 1979.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida, that granted service connection for headaches and assigned an initial 10 percent rating, effective in September 2006.  A May 2008 rating decision denied a TDIU.

Although the Veteran did not expressly disagree with the November 2007 decision; he did report an increase in disability in January 2008 and a VA examination later that month showed increased symptomatology.  This is deemed to be new and material evidence received within the appeal period after the November 2007.  As such the November 2007 decision did not become final.  Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.159(b) (2013).

In a May 2009 rating decision, an RO decision review officer increased the rating for headaches to 30 percent, effective in January 2008.  The Veteran submitted a notice of disagreement with this decision.

The issues of entitlement to TDIU and an extraschedular rating for headaches are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC, and are discussed in the REMAND section of this decision.


FINDING OF FACT

Since the effective date of service connection the Veteran has had headaches manifested by attacks that were very frequently prostrating and caused severe economic inadaptability.



CONCLUSION OF LAW

The criteria for an initial rating of 50 percent for headaches have been met since September 12, 2006.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance to substantiate claims for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The Board is granting the maximum scheduler rating for headaches and remanding the question of entitlement to an extraschedular rating.  Further notice or assistance is not required to aid the Veteran in substantiating entitlement to a higher scheduler rating.

The Veteran's disability is rated under the criteria for migraines.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  That diagnostic code provides a 30 percent rating for prostrating attacks occurring on an average of once a month for the past several months.  The maximum rating of 50 percent is provided for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

The Veteran underwent two VA examinations during the appeal period.  On VA examination in December 2006, it was reported that he had weekly migraine attacks that lasted one to two days.  "Less than half" of these attacks were prostrating.  The examiner did not elaborate on the frequency of prostrating attacks, but the report implies that prostrating attacks were occurring far more frequently than once per month.  The examination report did not indicate whether headaches caused severe economic inadaptability, apparently because the Veteran was not currently employed; but it was noted that they caused the Veteran to avoid driving, and prevented exercise, travel and recreation and had a moderate impact on performance of chores and shopping.

In December 2007, a VA treatment provider reported that the Veteran had chronic daily headaches and opined that this prevented the Veteran from working.

The second VA examination took place in January 2008, when it was reported that the Veteran had weekly migraines, most of which were prostrating.  The attacks lasted longer than two days.  Again there was no opinion as to whether there was severe economic inadaptability, but it was reported that headaches prevented chores, shopping, exercise, recreation, traveling, bathing, and grooming.  

A VA outpatient treatment record dated in April 2009, reports without elaboration, that the Veteran's headaches were improved since a change in his medication. 

This record show prostrating attacks that occur much more frequently than once per month.  They appear to cause severe economic inadaptability given the limitations on daily activities and the December 2007 opinion.  Accordingly, a 50 percent scheduler rating is granted effective from the date of service connection.

A higher rating is not provided under Diagnostic Code 8100 and other rating codes are not applicable.  At one point the Veteran asked for evaluation under the criteria for traumatic brain injury.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (2013).  He subsequently clarified; however, that he was not claiming that he had headaches as a manifestation of a truamtic brain injury, and the record does not show that service connection was granted on that basis.  Accordingly, the maximum scheduler rating of 50 percent is granted effective from the date of service connection.


ORDER

An initial rating of 50 percent is granted for headaches effective September 12, 2006.


REMAND

The most recent VA outpatient treatment record is dated in April 2009.  That record indicates the Veteran would be seen again in three months.  VA has a duty to obtain the records of subsequent VA treatment.  38 U.S.C.A. § 5103(b),(c).

The Veteran has not met the percentage requirements for TDIU.  38 C.F.R. § 4.16(a) (2013).  There is plausible evidence of unemployability, and the Board is required to insure that the claim is considered by the Director of VA's Compensation and Pension Service (C&P) in the first instance.  Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001); 38 C.F.R. § 4.16(b) (2013).

The Board agrees with the Veteran's representative that a comprehensive examination is needed to ascertain whether a TDIU is warranted.

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should obtain all records of VA treatment for service connected disabilities since April 2009.

2.  After the above is complete, the AMC/RO should arrange an examination to determine whether the Veteran's service-connected disabilities COMBINED, render him unable to obtain and maintain substantially gainful employment for which he would otherwise be qualified.

If it is found that the service connected disabilities do not combine to cause current unemployability, the examiner should opine as to whether the service connected disabilities combined to render the Veteran unemployable during any period since September 2006.

The examiner should provide reasons for all opinions.  The examiner should note the December 2007 opinion that headaches would prevent the Veteran from working.

3.  Advise the Veteran that it is his responsibility to report for the VA examination, to cooperate in the development of the claim, and that, in accordance with 38 C.F.R. §§ 3.158, 3.655, the consequences for failure to report for a VA examination without good cause include denial of the claim.  In the event he does not report for any ordered examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination.  It should also be indicated whether any notice that was sent was returned as undeliverable.

4.  The AMC/RO should consider whether the issue of entitlement to a higher initial rating for headaches warrants referral for an extraschedular rating under 38 C.F.R. § 3.321(b) (2013).

5.  The AMC/RO should refer the TDIU claim to the Director of C&P for adjudication under the provisions of 38 C.F.R. 4.16(b).

6.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.

The case should thereafter be returned to the Board, if in order.  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).


_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs