Citation Nr: 1331231 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 13-20 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to increased rating for service-connected chronic cluster headaches, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1976 and again from May 1977 to November 1979. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issues of entitlement to secondary service connection for pulled teeth, a jaw condition, a neck condition and an eye condition have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 appellant if further action is required. REMAND Reasons for Remand: To obtain additional VA treatment records and private medical records, to schedule another VA examination, and to allow the AOJ opportunity to adjudicate the claim of entitlement to a total disability rating based on individual unemployability (TDIU) raised by the record. The Veteran seeks a higher evaluation for his service-connected chronic cluster headaches, currently evaluated as 30 percent disabling. In his July 2011 notice of disagreement (NOD), the Veteran stated he had visited the VA medical center (VAMC) in Jackson, Mississippi twice for treatment "staying two and three weeks with no relief." He also related that he sought treatment for four months at the VAMC in Tuskegee, Alabama. These records do not appear in the claims file and it does not appear that VA has attempted to obtain these records. In addition, the Veteran mentioned visiting "countless" chiropractors and a private neurologist to deal with his increasing pain. Because there may be outstanding VA and private treatment records related to the claim on appeal, attempts to obtain those records must be made on remand before the issue may be decided. The Board notes that the relevant time period for evidence that must be addressed in the adjudication of the appeal begins November 24, 2009 one year prior to the date of receipt of the increased rating claim. See 38 C.F.R. §3.400(o) (2) (2012). It is important to attempt to retrieve all records since November 2009, as they may offer a better overall picture of the current severity of the Veteran's disability. In claims for an increased rating, the current level of disability is most important in determining the appropriate rating. Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Although age of an examination is not, in itself, an automatic reason for remand, a current examination is necessary in determining the overall disability picture. Here, the Veteran has alleged that his service connected disability has worsened and is affecting his ability to obtain and hold a job. See, July 2011 NOD; July 2013 Form 9. A remand is necessary to determine the current severity of his condition. See VAOPGCPREC 11-95 (1995) (VA is obliged to afford a Veteran a contemporaneous examination where there is an indication of an increase in the severity of the disability.). The Veteran's most recent disability evaluation examination took place in December 2010. At that time, the examiner noted the Veteran's symptoms were getting "progressively worse." The Veteran related that he was suffering four to five headaches per day. He qualified the pain as severe and stated each headache generally lasted two hours. Initially, it is unclear whether the examiner reviewed the claims file. On the initial page of the examination, the examiner indicated the file was not available for review and on the second page, it was indicated that a claims file review was completed. In addition, the examiner did not address whether the Veteran's headaches were productive of severe economic inadaptability - a symptom listed in the diagnostic code requiring consideration. Although the most recent VA treatment record in the file is dated in April 2013, it does not address or evaluate the current severity of the Veteran's headaches. For the foregoing reasons, the Board concludes that a new VA examination to evaluate the Veteran's current level of disability is necessary. On remand, the examiner must review the complete claims file, including any records obtained on remand, and report all signs and symptoms necessary for an adequate rating. Finally, the Board finds the record reasonably raises a claim for a TDIU rating. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran has not filed a claim for TDIU; however, he has offered evidence that he is unable to work due to his service-connected chronic cluster headaches. Specifically, in his July 2011 NOD, the Veteran claimed: I am unable to hold a job for any long period of time because of constantly calling in sick, taking off early and this pattern has been going on for the last 30 years and now that I have gotten older, I don't believe that I would even be able to obtain a job. While I have had many sympathetic employers who have tried to work with me, the outcome is always the same, either getting laid off or just having to quit because of the severity of these headaches. In light of the Court's decision in Rice, the VA must adjudicate that issue as part of the claim for an increased rating for the service-connected disability. Id. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the issue of entitlement to a TDIU rating is remanded for appropriate action by the AOJ. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's complete record of treatment from the Jackson VAMC and Tuskegee VAMC from November 2009 to the present. 2. Ask the Veteran to identify any non-VA medical providers from whom he has received or receives treatment for the condition on appeal, and assist him in obtaining any private treatment records he identifies and for which he provides an authorization for release of such private records to VA. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to include sending the Veteran an application for TDIU and an appropriate notification letter. 4. After the above development has been completed, and records are obtained to extent available, schedule the Veteran for an appropriate VA examination to assess the current nature and severity of his service-connected chronic cluster headaches. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and included in the examination report. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner should report all signs and symptoms necessary for an adequate rating. The examiner should specifically state whether there are characteristic prostrating attacks and indicate their frequency over the previous months. The examiner should also indicate whether there are very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability. In addition, the examiner should provide an opinion as to whether the Veteran's service-connected headaches alone preclude him from securing substantially gainful employment consistent with his education and occupational experience. The opinion must be provided without consideration of either his nonservice-connected disabilities or age. Complete rationale should be provided for any opinion expressed. If the examiner is unable to provide an opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 5. Thereafter, readjudicate the claim including whether the Veteran is entitled to a TDIU rating under the provisions of 38 C.F.R. § 4.16. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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). 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).