Citation Nr: 18157325 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 12-17 082 DATE: December 12, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1990 to August 1995. The Veteran testified at a hearing held before the undersigned Veterans Law Judge in August 2015. A transcript of the hearing is of record. This appeal has been remanded by the Board on a number of occasions. It has been returned to the Board for appellate review. Although the Board regrets any additional delay, further development is found needed to afford the Veteran due process. The Veteran asserts that she is unable to secure or follow substantially gainful employment as a result of her service-connected disabilities. A TDIU may be assigned "where the schedular rating is less than total" and the evidence shows that a veteran is precluded, by reason of her service-connected disabilities, from securing and following "substantially gainful employment" consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Veteran is presently in receipt of service connection benefits for status post hysterectomy with left ovary removal, vaginal cuff granulation tissue, multiple infections, pelvic adhesions, chronic pelvic pain, and spotting (“gynecological disability”), asthma, left shoulder impingement syndrome, sinusitis with sinus headaches, and severe reoccurring headaches. The Veteran has been in receipt of a combined 80 percent disability rating for the duration of the relevant appeal period, with a 50 percent evaluation for her gynecological disability. The Veteran thus meets the preliminary numerical requirements for an award of a schedular TDIU. See 38 C.F.R. § 4.16(a). In its June 2017 remand, the Board directed that the issue of entitlement to a TDIU be readjudicated in light of the finding of clear and unmistakable error in a prior decision, which resulted in a retroactive grant of service-connected for severe reoccurring headaches. After the VA Regional Office assigned a 10 percent disability rating for headaches prior to December 22, 2008 and a noncompensable disability rating thereafter, the Veteran submitted a Notice of Disagreement appealing the evaluations assigned. In October 2017, the Board remanded the issue of entitlement to a higher initial disability rating for headaches for the issuance of a Statement of the Case and the issue of entitlement to a TDIU as inextricably intertwined. A VA examination pertaining to the Veteran’s headaches was conducted in June 2018. Although the Veteran reported migraines occurring two or three times per week, lasting between one and three days. She reported taking Lyrica, which is used to treat fibromyalgia but which has also been studied for use in migraine prevention. See “Using Neurontin or Lyrica for Migraine Prevention,” Healthline.com. Despite the Veteran’s lay reports of her symptoms, the examiner found that her headache condition does not impact her ability to work, reasoning that the Veteran’s relevant medications had expired as of September 2017 and that “Atlanta VAMC medical records are negative for complaints of treatment for headaches, for 24 months.” Review of the record, however, shows VA treatment records from November 2017, July 2017, and May 2017 indicating that the Veteran’s headaches were being managed by a non-VA provider who was prescribing Tramadol and/or sumatriptan, and documenting the Veteran’s report that her headaches are not controlled and her request for preventative maintenance medication for her migraines. Inasmuch as the June 2018 VA examiner’s conclusion as to the functional impact of the Veteran’s migraines on her ability to engage in occupational activity is based on an inaccurate factual premise, it lacks probative value. The Board therefore finds that an additional medical opinion is needed as to the functional impact of the Veteran’s migraines on her occupational capacity. As the appeal period for the claim for a TDIU dates back to December 2008, the opinion should consider the effect of the migraine headaches and the combined effect of the Veteran’s service-connected disabilities (including any side effects of medication) since December 2008. The Veteran’s statements indicate that she has received relevant private treatment through Piedmont Healthcare/ the Piedmont Physician Group since the most recent progress note from that facility that has been associated with the record, dating from August 2016. On remand, the Veteran should be contacted to provide any needed authorization, and the Agency of Original Jurisdiction should request that all relevant outstanding private treatment records from this practice be associated with the claims file. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2018 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for Piedmont Healthcare and Dr. A.M.H and identify the timeframe during which she received treatment from this facility/provider. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. After associating all responsive records with the claims file, refer the Veteran’s VA claims file to an appropriate clinician for a supplemental medical opinion regarding the overall impact of the Veteran’s service-connected disabilities on her employability, particularly considering the severity and manifestations of the Veteran’s migraine headaches and their effects over the course of the relevant appeal period of her claim for a TDIU (December 2008 to Present). The claims file should be made available and reviewed by the clinician and the report must specifically note the Veteran’s VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with rendering the opinion. If necessary to respond to any inquiry below, the Veteran should be scheduled for an interview, either via telephone or in-person, whichever is more convenient, to provide such information as needed by the clinician. After considering the evidence of record, and any further evidence gathered from potentially interviewing the Veteran, the clinician should address the following, as it pertains to the period from December 2008 to the Present: a. The functional effect of the Veteran’s migraine headaches on her ability to engage in any type of full-time employment. b. The combined effect of the Veteran’s service-connected disabilities on her ability to engage in any type of full-time employment. In responding to these inquiries, any side effects the Veteran experienced from medications for the service-connected disabilities should be considered. If the evidence demonstrates that the Veteran experienced varying levels of impairment at different points during the appeal period, the clinician should so state and provide the basis for such conclusion. 4. After completing all of the above, and conducting any additional development deemed necessary in light of the expanded record, readjudicate the Veteran’s claim for a TDIU. If the benefit sought on appeal is not granted in full, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel