Citation Nr: 1340700 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 09-07 140A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a rating higher than 30 percent for migraines due to traumatic head injury. 2. Entitlement to an initial compensable rating for lumbosacral strain, prior to February 22, 2005. 3. Entitlement to a rating higher than 40 percent for lumbosacral strain, from February 22, 2005 to May 31, 2010. 4. Entitlement to a rating higher than 10 percent for lumbosacral strain, from June 1, 2010. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from December 1974 to December 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran was granted service connection for a lumbosacral strain in an August 2002 rating decision, at which time a noncompensable rating was assigned, effective January 29, 2001. A timely notice of disagreement with the rating assigned was received in March 2003, a statement of the case was issued in March 2004, and a VA Form 9 was received in April 2004. The Board notes this appeal originally included whether the reduction in the evaluation for migraines from 30 percent to a noncompensable evaluation, effective February 22, 2005, was proper. However, this issue was fully granted in a July 2013 rating decision, in which the 30 percent rating for migraines was restored, effective February 22, 2005. As such, this issue is no longer on appeal. The Court of Appeals for Veterans Claims (CAVC) has held that rating reduction cases do not encompass an underlying increased rating claim. See Dofflemyer v. Derwinski, 2 Vet.App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet.App. 282, 286 (1991). However, given that the Veteran submitted a separate claim of entitlement to an increased rating for his migraines in November 2009 and the RO has addressed this issue in September 2012 and July 2013 rating decisions, as well as the July 2013 Supplemental Statement of the Case (SSOC), the Board will accept jurisdiction of this issue. Percy v. Shinseki, 23 Vet App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003) (per curiam order). The Board notes that in Rice v. Shinseki the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has been granted entitlement to TDIU in a February 2012 rating decision. Accordingly, the Board finds that Rice is not applicable in this case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to a rating higher than 30 percent for his migraines and entitlement to increased ratings for his lumbosacral strain. The Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened, or in cases where the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Here, the Board notes that the Veteran was afforded the most recent VA examination for his migraines in December 2009, which is more than four years ago. The Veteran has asserted that his migraines have worsened. See July 2013 VA Form 646. As such, the Board finds a remand is necessary to afford the Veteran a contemporaneous VA examination to determine the severity of his migraines. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the Veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination). Furthermore, although the Veteran was afforded a VA examination for his spine in May 2011, the examination report does not include any range of motions for the lumbar spine. As such, it is not adequate for rating purposes. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board finds that a remand is necessary to afford the Veteran a new VA examination to determine his lumbar spine range of motion and the degree at which pain occurs during range of motion tests. These findings are necessary to adequately rate the Veteran's disability according to DeLuca. Id. Any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination to determine the current severity of his migraines. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's migraines. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. Ask the examiner to discuss all findings in terms of the 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2013). The pertinent rating criteria must be provided to the examiner. 3. Afford the Veteran a VA examination to determine the current severity of his lumbosacral strain. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's lumbosacral strain. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the lumbar spine and the degree at which pain begins. Ask the examiner to discuss all findings in terms of the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. The pertinent rating criteria must be provided to the examiner. 4. After all of the above actions have been completed and the Veteran has been given adequate time to respond, readjudicate the claims. If a claim remains denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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. 2013). _________________________________________________ WAYNE M. BRAEUER 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) (2013).