Citation Nr: 1333185 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-16 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for migraine headaches rated as 0 percent disabling before May 15, 2010. 2. Entitlement to an increased rating for migraine headaches rated as 30 percent disabling after May 15, 2010. 3. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from March 2003 to October 2006, including service in Iraq. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In statements to the RO the Veteran claimed, in substance, that his service connected migraine headaches prevented him from working. Therefore, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on TDIU the appellant claims he is unable to work due to a service connected disability). 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 As to the claim for an increased rating for migraine headaches, in the September 2013 written argument, the Veteran's representative claimed that his migraine headaches have become worse since the May 2010 VA examination and a new examination is needed to ascertain their current severity. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his migraine headaches. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. As explained above, the record raises a claim for a TDIU. See Rice. However, the Board finds that the TDIU issue is not as yet fully developed for appellate review. Specifically, the Board notes that the Veteran has not been provided with notice of the laws and regulations governing a TDIU in a statement of the case or supplemental statement of the case or an adequate examination to obtain an opinion as to whether his service connected disabilities prevent him from working. See 38 U.S.C.A. §§ 5103(a), 5103A(b) (West 2002); 38 C.F.R. § 19.31 (2013); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). Therefore, the Board finds that a remand for such development is required. The Veteran reported that he receives ongoing treatment from the Philadelphia VA Medical Center. However, his post-May 2010 treatment records are not found in the claims file. Therefore, the Board finds that while the appeal is in remand status these treatment records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Similarly, while the Veteran provided the RO with a statement from his doctor, Gene Salkind, M.D., her treatment records have neither been requested or appear in the claims file. Therefore, the Board finds that while the appeal is in remand status these treatment records should also be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them). Lastly, the Board finds that a remand is required because while additional pertinent evidence in the form of VA treatment records were added to the virtual claims file in August 2012, before the appeal was certified to the Board, the RO did not thereafter issue a supplemental statement of the case. See 38 C.F.R. § 19.31 (2013) (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. After obtaining an authorization from the Veteran associate with the claims file, physically or electronically, all of his treatment records from Dr. Salkind. All actions to obtain the requested records should be documented fully in the claims file. 2. Associate with the claims file, physically or electronically, all of the Veteran's post-May 2010 treatment records from the Philadelphia VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 3. Provide the Veteran with notice of the laws and regulations governing a TDIU in accordance with 38 U.S.C.A. § 5103A (West 2002) which notice also tells him that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his service connected disabilities, to include the impact of the conditions on his ability to work. The VCAA notice should also request a detailed statement regarding the Veteran's post-service work history as well as all of his education and training. 4. After undertaking the above development to the extent possible, provide the Veteran with a VA examination to determine the severity of his migraine headaches. The claims folder should be made available and reviewed by the examiner. In this regard, the examination report must include an opinion as to whether the Veteran's migraine headaches are manifested by "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." See 38 C.F.R. § 4.124a, Diagnostic Code 8100. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 5. After undertaking the above development to the extent possible, provide the Veteran with an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist with respect to his TDIU claim. The claims file should be made available to the examiner and all appropriate tests should be performed. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. In offering this impression, the examiner must acknowledge and take into account this Veteran's education, training, and work history. All finding and conclusions should be set forth in a legible report, accompanied by a rationale. 6. After undertaking any other needed development, adjudicate the claims including the claim for a TDIU. If any benefit sought on appeal is not granted in full, the Veteran should be provided a supplemental statement of the case (SSOC) that includes notice of all relevant the laws and regulations governing a TDIU as well as citation to all evidence received since the issuance of the May 2012 statement of the case including the VA treatment records added to the virtual claims file in August 2012. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the 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). _________________________________________________ STEVEN D. REISS 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 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).