Citation Nr: 18150086 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-13 881 DATE: November 14, 2018 REMANDED Entitlement to an increased rating for headaches, is remanded. Entitlement to an increased rating for traumatic brain injury (TBI), is remanded. Entitlement to total disability individual unemployability (TDIU) prior to November 19, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1982 to July 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The February 2010 rating decision granted service connection for TBI and assigned a noncompensable rating, effective September 25, 2008 and granted service connection for headaches and assigned a noncompensable rating, effective September 25, 2008. In April 2011, the Veteran testified at a personal RO hearing. Subsequently, in May 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. The transcripts of the hearings have been associated with the Veteran’s electronic record. In a May 2017 decision, the Board remanded several claims for further development, to include entitlement to an initial rating greater than 0 percent for a cervical spine disability, and entitlement to service connection for hearing loss, tinnitus, asthma, and sleep apnea. The Board granted an increased rating of 10 percent disabling for the Veteran’s TBI. The Board also denied the Veteran’s claim for denied entitlement to an initial rating greater than 10 percent for residuals of a TBI and an initial rating greater than 0 percent for chronic posttraumatic headaches associated with TBI. The Veteran appealed the Board decision regarding his headaches and TBI to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claim was pending at the Court, the Veteran’s representative and the VA Office of General Counsel filed a Joint Motion in April 2018 requesting that the Court vacate and remand those portions of the May 2017, Board decision that denied entitlement to an initial rating greater than 10 percent for residuals of a TBI and an initial rating greater than 0 percent for chronic posttraumatic headaches associated with TBI. In an April 2018 Order, the Court granted the Joint Motion for Remand (JMR) and vacated those portions of the Board’s May 2017 decision. The case was returned to the Board for compliance with the terms of the JMR. The Board notes in an April 2016 rating decision, the RO awarded IU, effective November 19, 2014, because the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. However, in October 2018 the Veteran’s representative contended that the Veteran is entitled to a TDIU as part and parcel of the claim for higher ratings for his headaches and TBI, consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has asserted that his service-connected disabilities, particularly his headaches and TBI, render him unemployable, then as per Rice the Board considers the issue of entitlement to a TDIU prior to November 19, 2014, to be on appeal. Thus, the Board has now recharacterized the TDIU claim as set forth on the title page. 1. Entitlement to an increased rating for headaches, is remanded. The Court held that the Board’s analysis with respect to the Veteran’s headache claim reflects it improperly considered the ameliorative effects of medication on Veteran’s headaches when those effects are not explicitly contemplated by the rating criteria. The Court noted the Veteran’s disability is rated under Diagnostic Code (DC) 8100, for migraine headaches, which rates the disability based on the length and frequency of “characteristic prostrating attacks” and whether attacks are productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, DC 8100. The Court specifically found that as the DC does not contemplate the use of medication and the Board erred when they contemplated the effects medication had on his headaches. The Court directed the Board to consider the severity of the Veteran’s headaches notwithstanding the effects of medication. The Court also directed the Board to more clearly define the terminology “characteristic prostrating attacks” found in DC 8100 and provide an adequate statement of reasons or bases regarding whether Veteran’s headaches are characteristic of prostrating attacks in light of the lay statements and medical evidence of record. As pointed out by the Court, the VA examinations from November 2009, July 2013, and March 2016, indicate the Veteran’s headaches were not characteristic of prostrating attacks although the Veteran described his headaches as a sharp pain, requiring him to lie down with nausea and sensitivity to light and sound. As a result, an additional VA examination is necessary to clarify if the Veteran experiences prostrating attacks and to provide a clear picture of his current symptomatology. 2. Entitlement to an increased rating for TBI is remanded. The Court found that the Board overlooked or mischaracterized favorable evidence suggesting a higher impairment level may have been warranted with respect to the Veteran’s “memory” facet. The Veteran’s TBI residuals are rated under Diagnostic Code 8045, which looks at the impairment level of the residuals over various facets, such as memory impairment, judgment, orientation, motor activity, etc. See 38 C.F.R. § 4.124a, DC 8045. Each facet is assigned an impairment level of “0,” “1,” “2,” “3,” or “total,” depending on the severity, and then a disability rating is assigned in accordance with the highest rated facet. See Id. The Court found, in pertinent part, the Board denied awarding the Veteran a rating greater than 10 percent for the residuals of his TBI finding none of the facets warranted an impairment level assignment greater than “1.” The Court noted that the Board included in its decision a VA examination from June 2013 where the examiner merely noted “a complaint of mild memory loss” without objective evidence on testing. The examiner also noted in the report that neuropsychological testing had not been performed. The Board also included in its decision a March 2010 VA treatment note, which included neurologic testing results with a score of 28 of a possible 30 points on the Mini-Mental Status exam (MMSE) showing slight deficits in immediate recall. The Court explained the Board failed to provide any explanation as to why the March 2010 medical evidence was rejected as evidence of memory loss with objective testing or why no further clarification from the June 2013 VA examiner was appropriate. Additionally, the Court noted the June 2013 VA examiner noted complaints of mild memory loss “without objective evidence on testing,” the report also did not identify any diagnostic testing done. The Court found it is not entirely clear whether the examiner performed any objective testing with respect to memory. Therefore, the Court found an adequate statement of reasons or bases of the probative value assigned to all the various medical opinions of record, to include the March 2010 VA neurology treatment record is necessary. The Court also found clarification of the June 2013 VA examination regarding whether memory impairment objective testing was performed or an adequate statement of reasons of bases as to why such clarification is unnecessary, is warranted. For these reasons, a VA addendum opinion is required to assess the Veteran’s cognitive functioning and determine the current severity of the Veteran’s TBI impairment. Entitlement to TDIU is remanded. In October 2018 the Veteran’s representative raised the issue of TDIU. In Rice, the Court held that a claim for a TDIU due to service-connected disability either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Thus, the issue of entitlement to a TDIU from September 25, 2008 to November 19, 2014, is inextricably intertwined with the pending claims of increased ratings for headaches and TBI. The matters are REMANDED for the following action: 1. Request an addendum opinion from the examiner who conducted the March 2016 VA examination or by a qualified VA medical professional concerning the Veteran’s headaches. The examiner is to clarify the November 2009, July 2013 and March 2016 findings regarding whether the Veteran’s symptoms classify as prostrating attacks and must provide a rationale. The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to headaches alone and discuss the effect of the Veteran’s headaches on any occupational functioning and activities of daily living. If it is not possible to provide a specific opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Request an addendum opinion from the examiner who conducted the June 2013 VA examination for clarification as to whether memory impairment objective testing was performed, as well as the current severity of the Veteran’s TBI. If the examiner is no longer available, obtain an opinion from another appropriate examiner to determine the current severity of his TBI residuals. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The electronic claims file should be made available to the examiner and reviewed in conjunction with the examination. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail with appropriate rational for all opinions provided. The examiner should also address any discrepancies in the findings of the June 2013 TBI examination reports and the March 2010 VA neurology treatment record, with respect to the Veteran’s memory facet. To the extent possible, the examiner should identify any symptoms and functional impairments due to TBI alone and discuss the effect of the Veteran’s headaches on any occupational functioning and activities of daily living. If it is not possible to provide a specific opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is reminded to consider the Veteran’s lay statements regarding his disability. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs