Citation Nr: 18151451 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-15 938 DATE: November 19, 2018 ORDER As new and material evidence has been received, reopening of the claim for entitlement to service connection for migraines is granted. REMANDED Entitlement to a rating higher than 70 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities is remanded. FINDING OF FACT A March 1994 decision denied the claim for service connection for headaches (now claimed as migraines). The evidence added to the record subsequent to the March 1994 decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence to reopen the claim of entitlement to service connection for migraines has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1971 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran presented sworn testimony at a hearing before the undersigned in August 2018. A transcript of the hearing is of record. The Veteran previously submitted a claim of entitlement to service connection for headaches which was denied in a March 1994 rating decision on the basis that the Veteran’s service treatment records did not show any complaints of or treatment for headaches. The March 1994 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran’s claim to reopen, he testified that he recalled first experiencing headaches while serving in Vietnam and has experienced them since the present time. He provided a vivid description of when his first headache occurred while in service. See August 2018 Hr’g Tr. at 9. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). REASONS FOR REMAND 1. Veteran’s claim for service connection for migraines is remanded. Initially the Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. To date, the Veteran has not been afforded a VA examination addressing his migraine disability, to include whether his migraines are caused or aggravated by his service connected PTSD. Based on the foregoing, the Board finds an examination with medical opinion is necessary to address this matter. 2. Entitlement to a rating higher than 70 percent for post-traumatic stress disorder is remanded. The Veteran’s most recent VA PTSD examination was performed in January 2016. During his August 2018 Board hearing the Veteran noted that his PTSD symptoms have worsened since his last VA examination, to include testimony that he was hospitalized for his most recent suicide attempt in July 2018. As there is evidence of a worsening of the Veteran’s PTSD symptoms since the last VA examination, the claim must be remanded for a new examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffery v. Brown, 6 Vet. App. 377 (1994). 3. Entitlement to a TDIU due to service connected disabilities is remanded. Finally, the Board notes the issue of entitlement to a TDIU rating must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991). These matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination by a VA examiner with sufficient expertise to address the etiology of the Veteran’s claimed migraine disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed migraine disability, at least as likely as not (a 50 percent probability or greater): (a) originated during the Veterans period of active service or is otherwise etiologically related to his active service; and/or, (b) was caused by his service-connected PTSD; or (c) was permanently worsened by his service-connected PTSD. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The Veteran must also be afforded a VA examination by an examiner with sufficient expertise to fully assess the current degree of severity of the Veteran’s service-connected PTSD. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, including the effect on occupational functioning. (Continued on the next page)   4. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham