Citation Nr: 1805666 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-45 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for migraine headaches, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran served on active duty from April 1988 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied a claim for an increased rating for the Veteran's migraine headaches, evaluated as 10 percent disabling. The Veteran appealed, and in October 2009, the RO granted the claim, to the extent that it increased the Veteran's disability rating for migraine headaches to 30 percent, effective December 1, 2007. Since this increase did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In November 2012, the Veteran was afforded a videoconference hearing before an Acting Veterans Law Judge who is no longer with the Board. In November 2017, the Veteran was afforded a videoconference hearing before the undersigned. See 38 U.S.C. § 7107 (c) (2014). Transcripts of both hearings have been associated with the record. In September 2013, the Board determined that the issue of entitlement to a TDIU had been raised by the record, see Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the increased rating claim and the TDIU claim for additional development. In April 2015, the Board again remanded the claims for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND During her hearing, held in November 2017, the Veteran testified that she had undergone VA vocational rehabilitation training following her last job in 2003. No VA vocational rehabilitation records are currently associated with the claims file. As there may be records of VA vocational rehabilitation that are not currently associated with the claims files, a remand is required for an attempt to obtain these records. Moore v. Gober, 10 Vet. App. 436, 440 (1997). In December 2017, a VA disability benefits questionnaire was received, completed by T.P, M.D. This report was unaccompanied by a waiver of RO review. See 38 C.F.R. § 20.1304 (2017). The Court of Appeals for Veterans Claims has held that the issue of entitlement to a rating in excess of 30 percent for headaches requires consideration of the interplay between 38 C.F.R. §§ 4.3, 4.7, and 4.21 with respect to each of the factors specified in Diagnostic Code 8100 for a 50 percent rating, including whether headaches are productive of economic inadaptability, and a determination as to whether or not a 50 percent evaluation is appropriate despite any perceived absence of one or more listed factors. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Under the circumstances, to ensure that the record reflects the current severity of the Veteran's migraine headache disability, the Board finds that a contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the disability. See 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). With regard to the claim for TDIU, at her hearing, the Veteran testified that she was unable to work due to the combined effects of her service-connected disabilities (e.g., "I have a combination of situations. The depression from the pain, the joint pain, it all combines and makes it difficult to do things."). Service connection is currently in effect for major depressive disorder, sleep apnea, benign hypermobile joint syndrome, total hysterectomy with history of fibroid uterus, migraine headaches, degenerative disc disease, lumbar spine, and seasonal allergic rhinitis. The Federal Circuit has held that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical question, but rather a determination that must be made by an adjudicator, and that VA's duty to assist does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities in TDIU cases. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In a subsequent decision, Floore v. Shinseki, 26 Vet. App. 376, 381 (2013), the Court of Appeals for Veterans Claims (Court) stated that in multiple-disability TDIU entitlement decisions, the need for a combined-effects medical examination report or opinion is not required per se as a matter of statute, regulation, or policy. The Court stated that the need for such an opinion is to be determined on a case-by-case basis, as it depends on the evidence of record at the time of decision by the RO or the Board. In this case, the Veteran has not yet been afforded an examination that specifically addresses the effects of her service-connected disabilities upon her ability to work, and the Board finds that a combined-effects medical examination opinion would be helpful to the proper adjudication of the claim of entitlement to TDIU. Floore; see also Friscia v. Brown, 7 Vet. App. 294 (1995); Gary v. Brown, 7 Vet. App. 229 (1994). Accordingly, on remand, the Veteran should be afforded new VA examination(s) which discusses the effects of her service-connected disabilities on her ability to work. Id. The Veteran is hereby notified that it is her responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim(s). 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. The Veteran's vocational rehabilitation records should be obtained. 2. After the development in the first paragraph of this remand has been completed, the Veteran should be afforded an examination to evaluate the current level of disability associated with her migraine headaches. The examiner is specifically requested to discuss the current severity and frequency of the Veteran's migraine headaches, to include whether they are completely prostrating, productive of occupational impairment, or severe economic inadaptability. Why or why not? The examiner should be notified that the rating criteria do not include a definition for "severe economic inadaptability;" however, the Court has determined that the standard does NOT require the claimant be completely unable to work. The examiner must therefore determine whether the Veteran's headaches produce, or are capable of producing, any degree of economic inadaptability. A full discussion of the impairment and effect of the Veteran's migraine headaches on her occupational and daily life activities will be helpful to the Board. 3. After the development outlined in the first paragraph of this remand has been completed, schedule an appropriate VA compensation examination(s) to reassess the severity of her service-connected disabilities. Provide the examiner(s) with a list of the Veteran's service-connected disabilities (major depressive disorder, degenerative joint disease of the lumbar spine, benign hypermobile joint syndrome, sleep apnea, hysterectomy residuals, fibroid uterus, seasonal allergic rhinitis, and migraine headaches). The examiner(s) is/are specifically requested to address whether the Veteran's service-connected disabilities render her unable to engage in substantially gainful employment, given her level of education, prior work experience, and training, but not any impact on account of her age, or disabilities that are not service-connected, supporting such opinions with reference to manifested symptomatology and limitations. Why or why not? 4. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ MATTHEW W. BLACKWELDER 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).