Citation Nr: 1339664 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-27 836 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUE 1. Entitlement to an increased rating in excess of 70 percent for the service-connected generalized anxiety disorder and major depressive disorder. 2. Entitlement to an increased rating in excess of 10 percent for the service-connected cervical spine injury. 3. Entitlement to an increased rating in excess of 30 percent for the service-connected migraine disorder. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to February 1999 and from April 2001 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the RO in San Diego, California. In a June 2010 rating decision, the RO increased the rating for the service-connected psychiatric disorder to 70 percent. Additionally, in an August 2011 rating decision, the RO granted the Veteran a total rating for individual unemployability by reason of service-connected disability. The Veteran is presumed to seek the maximum available benefit; therefore, regardless of the increased evaluations granted during the pendency of the appeal, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran requested a hearing with the Board in September 2012, and one was scheduled for March 2013. Despite receiving adequate notice of that hearing by way of a February 2013 letter, he failed to attend the scheduled hearing. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(d) (2013). In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless and VBMS claims files reveals VA treatment records that are relevant to the issue on appeal. A waiver of initial agency of original jurisdiction (AOJ) consideration has been submitted. See 38 C.F.R. § 20.1304 (2013). FINDINGS OF FACT 1. The service-connected generalized anxiety disorder and major depressive disorder is not shown to be productive of a disability picture that in manifested by total occupational and social impairment. 2. The service-connected cervical spine disability is shown to be manifested by a functional loss due to pain that more closely resembles that of flexion limited to less than 30 degrees, but more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 70 percent rating for the service-connected generalized anxiety disorder and major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1-4.7, 4.126, 4.130 including Diagnostic Code 9404-9434 (2012). 2. The criteria for the assignment of an initial rating of 20 percent, but not higher for the service-connected cervical spine disability have not been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a including Diagnostic Codes 5003, 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in January 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the content of the January 2009 letter satisfied the notice requirements. In this regard, the letter informed the Veteran of the information and evidence needed to substantiate his claim and notified him of the division of responsibilities in obtaining such evidence. The letter also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess, 19 Vet. App. at 490-491. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue being decided herein. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA examinations in May 2009, February 2013 and March 2013. There has been no allegation that the examinations were inadequate. Each considered the pertinent evidence of record and provided a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a Statement of the Case (SOC) and numerous Supplemental Statements of the Case (SSOC), which informed them of the laws and regulations relevant to the Veteran's claim. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Increased ratings claims Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). As will be discussed, the Board finds that the disability has remained essentially consistent in severity throughout the period of the appeal, and a uniform rating is warranted. Generalized anxiety disorder and major depressive disorder The Veteran is in receipt of a 70 percent rating for generalized anxiety disorder and major depressive disorder pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9404-9434. The Veteran contends that his psychiatric disability warrants a 100 percent rating. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A schedular rating of 100 percent is warranted when the disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The GAF (Global Assessment of Functioning) scale reflects psychological, social, and occupational functioning of a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 denotes moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, DC, American Psychiatric Association, 1994. The Veteran underwent a VA examination in May 2009 and reported that he developed obsessive, compulsive, and depressive symptoms in 2005 that interfered with his ability to complete tasks. The Veteran denied having close friendships and reported enjoying playing video games and collecting comic books. He was divorced from his wife and had primary custody of a 3 year old son. He denied history of suicide attempts or violence/assaults. The Veteran reported having obsessive compulsive disorder (OCD) symptoms, a generally anxious mood, and depression. After his discharge from service, his depression worsened, and he stopped eating, had trouble sleeping, felt fatigue, and lost interest in pleasurable activities. His symptoms improved for a while but again worsened two weeks prior to this examination for a period of five days. He reported having suicidal ideation in the past, but no plan or intent. He continued to experience fatigue, irritability and disturbed sleep. The Veteran's OCD symptoms were noted to include repeatedly doing tasks to "check" that they were complete. He estimated spending five hours per day engaged in these "checking" behaviors. The examination showed that the Veteran was clean and causally dressed, with a cooperative attitude and unremarkable psychomotor activity and speech. His affect was normal, but his mood was anxious and depressed. The Veteran was fully oriented, with unremarkable thought content and processes and no delusions. His judgment and insight were normal. He had good impulse control with no episodes of violence, panic attacks, homicidal or suicidal thoughts. He was also able to maintain personal hygiene and had no problems with activities of daily living. Psychological testing indicated moderate levels of anxiety and severe depression. The examiner diagnosed the Veteran with obsessive-compulsive disorder, generalized anxiety disorder, and major depressive disorder and assigned a GAF score of 40, which reflected major impairment in work and social functioning, as well as mood. The VA examiner concluded that there are deficiencies in judgment, thinking, family relations, work, mood and school. Specifically, the examiner found that the "[V]eteran ha[d] purposely isolated himself from social contacts due to his embarrassment about his checking behaviors." In his October 2009 Notice of Disagreement, the Veteran stated that his divorce and inability to maintain employment were due to his obsessions and depressed mood. In a January 2010 statement, the Veteran added that he had suicidal thoughts. In June 2010, the Veteran contended that his records showed that he was classified as a "high suicide risk individual" and that his doctors considered him to be in persistent danger of hurting himself and possibly others. The treatment records from July 2010, October 2010 and March 2011 showed that he was deemed at high risk for suicide; whereas records from February 2011 and May 2011 through October 2012 showed that the Veteran was not deemed high risk for suicide. In an August 2011 rating decision, the RO granted the Veteran's claim for a total rating based on individual unemployability by reason of service-connected disability. A December 2011 Vet Center intake assessment showed that the Veteran reported having hypervigilance, hyperarousal, anger and difficulty sleeping. He denied having suicidal and homicidal thoughts or intent. A mental status examination showed that he was friendly and cooperative, with appropriate speech, full orientation, normal memory, appropriate affect, and good judgment. There was no evidence of a thought disorder. He reported having sleep disturbance and recent weight gain. The mental health records from January 2013 showed that the Veteran indicated that he was employed full time. At a VA examination in February 2013, the Veteran reported living alone, although he had joint custody of his 7 year old son. He also acknowledged dating someone since his divorce, although he was currently single. Regarding his symptoms, the examiner noted depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and obsessional rituals which interfered with routine activities. The examiner remarked that the Veteran's recount of events and details was inconsistent with his records in several areas, including employment, mental health treatment and symptom, and social history. She noted that it appeared that the Veteran was over-endorsing his symptoms, as compared to his reports to other medical professionals. The examiner found that the Veteran did not meet the criteria for generalized anxiety disorder, and instead diagnosed OCD and major depressive disorder, recurrent, mild and assigned a GAF score of 55. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. At the outset, the Board finds that the VA examinations are highly probative as they fully identify the pertinent symptomatology and describe the manifestations reported by the Veteran. The February 2013 examination also reviewed all the Veteran's treatment records up to that time. Based on the evidence of record, the Board finds that the service-connected disability picture does not meet the criteria that would establish entitlement to a 100 percent schedular rating at any time during the period of the appeal. The Veteran does not present manifetations that would support a findings of total social impairment. Although he is divorced, he acknowledges dating and being engaged since his divorce and having joint custody of his young child. This level of impairment in family relationships is contemplated in the 70 percent rating assigned for the service-connected psychiatric disability Furthermore, there is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the Veteran is in receipt of a total rating based on individual unemployability that would address the employment issues presented by the service-connected psychiatric disability. However, the evidence does not show total occupational impairment. The criteria for a 100 percent rating in this regard would require total social and occupational impairment. The Board has considered the Veteran's lay statements in awarding adjudicating this claim. The Veteran is competent to testify as to the severity of his symptoms; however, the Board finds the objective reports of the VA examiners are more probative. Therefore, the evidence does not support the assignment of a disability rating higher than 70 percent for the service-connected psychiatric disability for any period of the appeal. To the extent that the preponderance of the evidence is against the claim for an increased rating higher than 70 percent, the appeal must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Cervical spine The present appeal involves disability of the musculoskeletal system. Specifically, the Veteran's cervical strain is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Scheduler ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes found at 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of the injury or disease. 38 C.F.R. § 4.71a. The General Formula provides that an evaluation of 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a at Note (5). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the cervical spine is 340 degrees. Id. at Note (2). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned where there are incapacitating episodes having a total of at least one week but less than two weeks during the past twelve months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The factors involved in evaluating and rating disabilities of the joints include increased or limited motion, weakness, fatigability, incoordination, painful movement, swelling, deformity or disuse atrophy. 38 C.F.R. § 4.45. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. Deluca v. Brown, 8 Vet. App. 202, 207-08 (1995). A May 2009 VA examination showed that the Veteran denied having flare-ups of the cervical spine. His range of motion was that of 0 to 35 degrees of flexion, with moderate pain reported from 10 to 35 degrees; 0 to 25 degrees of hyperextension, with moderate pain reported from 10 to 25 degrees; 0 to 35 degrees of bilateral bending, with moderate pain reported at 12 degrees on the right and 15 degrees on the left; and bilateral rotation from 0 to 80 degrees, with moderate pain reported at 40 degrees. There was no additional limitation of motion following repetitive use. The Veteran's range of motion was limited by pain and denied having fatigue, weakness, lack of endurance, or fear of injury. The examination showed no guarding, spasm, tenderness or ankylosis. The Veteran was granted a 10 percent rating for cervical spine whiplash injury in a July 2009 rating decision. The Veteran underwent a VA examination in March 2013 and reported having a reduced range of motion of the neck, associated with tenderness next to the cervical spine. He further stated that he experienced flare-ups when the neck was held in the same position for long periods of time. The range of motion testing showed forward flexion performed to 40 degrees with pain at 40 degrees, extension performed to 40 degrees with pain at 30 degrees, lateral flexion performed each way to 40 degrees with pain at 30 degrees, and rotation performed each way to 70 degrees with pain at 60 degrees. There was no additional limitation of motion after repetitive use testing. The examiner noted localized tenderness and pain, but no guarding or muscle spasms. The examination was negative for findings of intervertebral disc syndrome, neurologic symptoms or arthritis. Based on the evidence of record, the Board finds that the service-connected cervical spine disability warrants the assignment of 20 percent rating, but not higher for the period of the appeal. As noted, the Veteran would be entitled to a higher evaluation if he had forward flexion limited to less than 30 degrees, but not less than 15 degrees. The Veteran has complained of pain in his neck and he is certainly competent to do so. Layno v. Brown, 6 Vet. App. 465, 469 (1994). To the extent that he contends that his disability warrants a higher rating due to the severity of his symptoms, the specific findings on examination suggest the presence of a functional loss due to pain that more nearly approximates a disability picture manifested by flexion limited to less than 30 degrees, but more than 15 degrees. In resolving all reasonable doubt in the Veteran's favor, an increased rating of 20 percent, but no more for the service-connected cervical spine disability is warranted. Extraschedular consideration The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Additionally, the impact of the Veteran's disabilities on his occupation has already been considered in the Veteran's award of the total compensation rating based on individual unemployability. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disabilities under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, supra. ORDER An increased rating in excess of 70 percent for the service-connected psychiatric disability is denied. An increased rating of 20 percent, but not higher for the cervical spine disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND The purpose of this remand is to obtain a clarifying opinion regarding the severity of the service-connected migraines from the VA examiner who recently examined the Veteran. Migraine headaches are assigned disability ratings based on the frequency of prostrating attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. At a May 2009 VA examination, the Veteran reported a history of migraines since 2007. He reported having migraines three times per week for the past 12 months. He stated that most attacks were prostrating, lasting three hours and requiring him to lie down in a dark and quiet room. In a June 2010 statement, the Veteran stated that his migraines caused him to miss work at least once per week while he was on active duty and that he was unemployed for a year following his discharge from service, largely due to his migraines. He stated that he had also received derogatory attendance points for missing work and leaving early due to his migraines, and this would cause him to lose his job very soon. A VA examination was conducted in March 2013. The examiner found that 1) the Veteran had "characteristic prostrating attacks of migraine headache pain" more frequently than once per month"; and 2) the Veteran did not have "very frequent prostrating and prolonged attacks of migraine headache pain." The examiner also stated that the Veteran experienced headache pain more than once per month, but had prostrating attacks less than once every two months. The 50 percent rating contemplates "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability," yet, this is not the same criteria addressed by the VA examiner. When an examination is inadequate, the Board must remand the case for further development. 38 C.F.R. § 4.2 (2012). Therefore, in order to assign the Veteran an appropriate rating, it is necessary for the VA examiner to clarify his opinion in accordance with the rating criteria. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should take all indicated action in order to refer the Veteran's claims file to the March 2013 VA examiner who examined him in March 2013or to another suitably qualified VA examiner for a clarifying opinion as to the current severity and extent of the manifestations due to the service-connected migraine headaches. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the service-connected migraine headache disability as follows: Specifically, the examiner should opine as to whether the service-connected headache disability is productive of "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability" at any point during the appeal period. In so doing, he or she should comment on the impact of the disability on her ability to function and work. An full employment history of the Veteran shall be recorded for discussion purposes. A clear rationale for any opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable importance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (2012), the Veteran's claims file must be made available to the examiner for review. To help avoid a future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a fully responsive Supplement Statement of the Case and be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs