Citation Nr: 1616005 Decision Date: 04/20/16 Archive Date: 04/26/16 DOCKET NO. 05-31 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to April 1978. This matter initially came before the Board on appeal from a September 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 30 percent rating for migraine headaches. In February 2009, the Board remanded, for evidentiary development, the claim for an increased rating for migraine headaches. At that time, the Board noted that the Veteran's representative had raised the issue of entitlement to a TDIU, and referred that issue to the Agency of Original Jurisdiction (AOJ) for appropriate action. In April 2011, the Board again noted that the issue of entitlement to a TDIU had been raised by the record, and once again referred the issue to the AOJ for appropriate action. In December 2011, the Board awarded the Veteran a 50 percent rating for his migraine headaches, and, in light of the evidence of record of indicating unemployability, remanded the issue of entitlement to a TDIU for development and adjudication, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In the prior Remand, the Board noted that the Veteran had raised a claim for service connection for epilepsy and that such disability was inextricably intertwined with his TDIU claim. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND As noted above, the issue of entitlement to a TDIU has been raised by the record, and was previously remanded by the Board in December 2011 for development and adjudication. See Rice, 22 Vet. App. at 453-54. A remand confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Nonetheless, it appears that this matter has not yet been adjudicated by the AOJ. A remand is therefore required in order to comply with the Board's prior remand instructions. In its prior remands, the Board noted the Veteran was raising an issue of entitlement to service connection for epilepsy and that his representative's September 2011 written argument shows that the Veteran continues to associate his migraine headaches with symptoms of seizures and blackouts. The Board interpreted this as a claim of secondary service connection for seizure disorder that is inextricably intertwined with his TDIU claim. In the December 2011 Remand, the Board noted that, on remand, "the RO must adjudicate this service connection issue." To date, this matter has not been addressed by the RO. On remand, the agency of original jurisdiction must adjudicate this intertwined issue. The Veteran does not currently qualify for consideration of a TDIU on a schedular basis, as he has a single service-connected disability rated at 50 percent disabling. See 38 C.F.R. § 4.16(a). However, it is VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Over the course of the appeal he has alleged that his migraine headaches negatively impact his employability. While a VA examiner opined in September 2012 that the Veteran's migraine headaches did not impact his ability to work, the Board notes that the 50 percent rating for migraine headaches currently assigned contemplates severe economic inadaptability. On remand, the Veteran should be afforded a VA examination to address the severity of the Veteran's headaches to include any occupational effects or limitations resulting from his headaches. Given the Veteran's report of occupational limitations resulting from his headaches and the fact that his current rating contemplates severe economic inadaptability, the Board finds that the matter must be referred to the Director, Compensation Service for a determination as to whether the Veteran's migraine headaches preclude him from substantially gainful employment. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the intertwined issues of entitlement to service connection for a seizure disorder 2. Provide the Veteran an examination to address the current severity of his headaches. All necessary testing should be conducted. The claims file and a copy of this remand must be provided to the examiner in conjunction with the examination. The examiner should discuss any occupational impairment resulting from the Veteran's headaches and the impact that such would have in an employment setting. 3. Refer to the Director, Compensation Service the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) if the criteria for consideration of a scheduler criteria remain unmet. 4. After the above development has been completed, adjudicate the issue of entitlement to a TDIU to include on an extraschedular basis. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and return the matter to the Board. 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 matter 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 2014). _________________________________________________ DAVID WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).