Citation Nr: 1803326 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-17 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for chronic post traumatic headaches prior to April 21, 2014, and in excess of 30 percent thereafter. 2. Entitlement to a compensable disability rating for residuals of traumatic brain injury (TBI) prior to April 21, 2014, and in excess of 10 percent thereafter. 3. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION The Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran with S.M. (observing) ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1985 to June 1985 and from October 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Following this rating decision, the RO issued another rating decision in November 2016, increasing the Veteran's disability ratings, effective April 21, 2014. These staged ratings are reflected on the title page. The Veteran testified at a travel board hearing before the undersigned VLJ in March 2017. A transcript of the hearing is of record. The Board notes that at the hearing the Veteran indicated that she was in receipt of disability benefits from the Social Security Administration (SSA). The Board has made careful review of the record, and notes that SSA records were associated with the claim file in June 2012 and May 2015. The Veteran testified during the March 2017 hearing that her TBI and headaches were major causes preventing her from working. Such testimony may be reasonably construed as raising the issue of entitlement to a TDIU. The United States Court of Appeals for Veterans Claims (Court) has directed that when entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The issue of TDIU has been added to the issues and is discussed further in the Remand. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran, if further action is required. REMAND The Board finds that additional development is needed before adjudication of the Veteran's appeal. First, the Board finds that additional treatment records should be associated with the claim file. At the March 2017 hearing, the Veteran testified that she receives regular treatment for her headaches, and indicated that she had upcoming appointments and that she recently received new medication. The Board will remand to obtain these recent treatment records. In addition, the Board finds that the Veteran should be afforded a new VA examination. At the March 2017 hearing, the Veteran testified that her TBI symptoms and headaches have worsened. In addition, she reported that she gets disoriented. The Veteran is competent to describe her symptoms and their effect on daily activities. Under these circumstances, VA cannot rate the service-connected disability without further medical clarification. Hence, the Veteran is entitled to a new VA examination. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board notes that a request for a TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran testified at the March 2017 hearing that her TBI and headaches were major causes preventing her from working. Therefore, the Board finds that the issue of entitlement to a TDIU has been raised by the record. Thus, the matter should be remanded to the AOJ for adjudication of the issue of entitlement to a TDIU, in accordance with the holding in Rice. Accordingly, the appeal is REMANDED for the following action: 1. After securing all necessary consent forms from the Veteran, obtain all medical records, to include any VA and/or private treatment records, pertaining to the service-connected disabilities on appeal. Attempts to obtain such records should be documented in the claim file. If identified records could not be obtained, this should be noted in the claim file. In addition, provide the Veteran with appropriate notice of how to substantiate a claim for entitlement to a TDIU. Additionally, provide her with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that she supply the requisite information. 2. Following completion of the above, schedule the Veteran for the appropriate VA examination(s) to assess the current severity of the service-connected disabilities on appeal. Review of the claim folder should be noted in the examiner's report. In examining the Veteran, it is specifically requested that the examiner delineate all symptomatology associated with, and the current severity of, the TBI and headache disabilities. The appropriate DBQs should be filled out for this purpose, if possible. In addition, the examiner should, to the extent possible, identify the symptoms that are solely attributable to TBI and the headaches and are not attributable to the Veteran's service-connected psychiatric disorder. The examiner should also address the impact the service-connected disabilities on appeal have on the Veteran's employability. A detailed rationale is requested for all opinions provided. 3. Thereafter, conduct any additional development deemed necessary to determine the impact of her service-connected disabilities on employability and adjudicate the issue of entitlement to TDIU pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), to include on an extra-schedular basis if necessary. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).