Citation Nr: 1342957 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 05-10 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increased rating for service-connected headaches due to head trauma, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 26, 2003. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his caretaker ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In December 2006, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This case was most recently before the Board in September 2012. The Board (1) granted an earlier effective date of August 26, 2003 for the grant of service connection for a psychiatric disorder, to include recurrent major depressive disorder with post-traumatic headaches, (2) denied entitlement to an effective date earlier than May 22, 2002, for the grant of a 50 percent disability rating for headaches due to head trauma, (3) granted a higher initial disability rating of 70 percent for a psychiatric disorder, to include recurrent major depressive disorder associated with headaches due to head trauma, effective September 29, 2009, (4) denied a rating higher than 50 percent for headaches due to head trauma, and (5) remanded the issue of entitlement to an effective date earlier than September 29, 2009, for the grant of a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2013 Order, the Court granted a Joint Motion for Remand (JMR) by VA's Secretary and the Veteran, through his representative, and remanded the Board's decision, in part, for action consistent with the motion. Significantly, the parties agreed that only that portion of the Board's decision that denied an increased rating for the Veteran's headaches should be vacated and remanded. Accordingly, the other issues decided in the September 2012 Board decision are final. The case was subsequently returned to the Board. As a point of clarification, notwithstanding the Veteran's representative's June 2013 filing of a notice of disagreement of the effective date assigned the TDIU in an April 2013 rating decision that implemented the Board's 2012 grants and notwithstanding the representative's request for a Decision Review Officer review, the Board observes that this issue is already in appellate status. The Veteran perfected an appeal of the issue of entitlement to a TDIU to the Board in March 2005. See VA Form 9. After completion of development ordered by the Board, in an October 2010 rating decision, the RO awarded entitlement to a TDIU and assigned an effective date of September 29, 2009, and then issued an October 2010 supplemental statement of the case on the issue of entitlement to a TDIU prior to September 29, 2009. In the subsequent September 2012 decision, the Board remanded the issue in light of the Board's grant of an earlier effective date for service connection of the psychiatric issue. The Board found that the RO must assign a disability rating for the psychiatric issue for the period August 26, 2003 to September 28, 2009 in the first instance and then adjudicate whether the Veteran was entitled to a TDIU. In the April 2013 rating decision, the RO granted an earlier effective date of August 26, 2003 for the award of TDIU. As the period on appeal extends prior to August 26, 2003, and the Veteran continues to disagree with the assigned effective date, the issue remains before the Board. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the JMR, the parties observed that a March 2010 VA examination report showed that a psychologist recommended that the Veteran undergo a comprehensive traumatic brain injury (TBI) evaluation. In October 2010, the RO requested an examination under the current guidelines for TBI. The Veterans Service Center Manager acknowledged the Veteran's headache disability required an additional VA examination under the current TBI criteria; however, there was no indication from the record that a TBI examination was ever conducted. The parties agreed that a remand was necessary to afford the Veteran a TBI examination. In addition, the parties found that the Board must also consider the Veteran's disability under the current version of 38 C.F.R. § 4.124a, Diagnostic Code 8045, and that the Board should explain how the Veteran's symptomatology of photophobia, nausea, and a stiff neck was contemplated by the rating criteria and the 50 percent rating currently assigned. In additional argument provided in October 2013, the Veteran's representative specifically contended that the "additional symptoms of his service-connected headaches, to include photophobia, nausea, and stiff [] neck" were not adequately contemplated by the rating criteria, and so he was entitled to a referral for extra-schedular consideration. Also, the Veteran's representative specifically contended that the issue of entitlement to an extra-schedular rating for headaches [rated 50 percent effective May 22, 2002] was intertwined with the Veteran's appeal for an effective date earlier than August 26, 2003 for the award of TDIU and that the Veteran's service connected disabilities rendered him individually unemployable "since at least May 2001." (For the period prior to August 26, 2003, service connection is only in effect for headaches, due to head trauma.) In light of the foregoing, the Board must remand the case for additional development. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers, who have treated him for his service-connected headaches due to head trauma since September 2012. All attempts to procure any treatment records should be documented in the claims file. Notice to the Veteran of inability to obtain any identified records should comply with 38 C.F.R. § 3.159(e). The Veteran should also be advised that in the alternative, he can provide these records of treatment. 2. Obtain VA treatment records from all treating VA facilities pertaining to any treatment the Veteran received for his service-connected headaches due to head trauma dated since September 2012. All efforts to obtain VA records should be fully documented. The VA facility must provide a negative response if records are not available, and notice to the Veteran of inability to obtain these records must comply with 38 C.F.R. § 3.159(e). 3. Thereafter, schedule the Veteran for a VA TBI examination (recommended by the psychologist who conducted the March 2010 mental examination) by an examiner(s) with appropriate expertise to determine the nature and extent of all impairment due to the Veteran's service-connected headaches due to head trauma. The claims folder must be made available to and reviewed by the examiner, and the examination report must note that such review was conducted. All indicated studies should be performed. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for Traumatic Brain Injury, which may require scheduling of multiple special examinations by appropriate examiners to examine each area of dysfunction (cognitive, emotional/behavioral, and physical conditions (including neurological dysfunction)) that have resulted from the in-service TBI. An examiner must also provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's complaints of photophobia, nausea, and stiff neck are symptoms of the service-connected headache due to trauma OR symptoms not normally associated with headaches due head trauma. If photophobia, nausea, and stiff neck are found to be related to the service-connected headaches due to trauma, the examiner should specifically state whether photophobia, nausea, and stiff neck are considered symptoms of completely prostrating and prolonged attacks of headaches due to trauma. The rationale for all opinions expressed should be provided in a report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. If the development as the result of remand directive 3 shows that the Veteran's complaints of photophobia, nausea, and stiff neck are not considered symptoms of completely prostrating and prolonged attacks of headaches, but are otherwise related to the service-connected headaches, then refer the issue of entitlement to an increased rating for headaches due to head trauma to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation. 5. Refer the TDIU claim to the Director, Compensation and Pension Service, for consideration of entitlement to a TDIU on an extra-schedular basis prior to August 26, 2003. A statement as to the Veteran's service-connected disability, employment history, and educational and vocational attainment should be provided. 6. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case 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). 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). _________________________________________________ K. OSBORNE 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).