Citation Nr: 20058089 Decision Date: 09/02/20 Archive Date: 09/02/20 DOCKET NO. 06-12 191 DATE: September 2, 2020 REMANDED The claim of entitlement to an extraschedular rating in excess of 50 percent for migraine headaches is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2000 to December 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, the Board remanded the issue of entitlement to a higher initial rating for migraine headaches for further development. In March 2010, the Board granted an initial 50 percent rating for migraines and remanded the issue of entitlement to a rating in excess of 50 percent on an extraschedular basis and entitlement to TDIU for further development. In November 2011, the Board remanded the claims and referred the issue of entitlement to an extraschedular rating in excess of 50 percent for migraine headaches to the Director of Compensation Service pursuant to 38 C.F.R. § 3.321(b). The requested opinion was provided in January 2015. In April 2015, the Board remanded the claims, in part, to obtain another opinion from the Director of Compensation Service considering the collective impact of all of the Veteran’s service-connected disabilities pursuant to Johnson v. McDonald, 762, F.3d 1362 (Fed. Cir. 2014). That opinion was provided in July 2015. In April 217, the Board again remanded the claims for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that effective January 8, 2018, VA amended 38 C.F.R. § 3.321(b) and eliminated extraschedular consideration on the basis of the collective impact of multiple service-connected disabilities, abrogating the holding in Johnson v. McDonald, 462 F.3d. 1362 (Fed. Cir. 2014). See Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57830 (Dec. 8, 2017). In September 2018, the Court issued a panel decision holding that the amendment did not have an impermissible retroactive effect and applied to all claims pending before VA at the time of the revision. See Thurlow v. Wilkie, 30 Vet. App. 231, 239-40 (2018). As the Veteran’s claim for an increased rating for migraine headaches was pending before VA when 38 C.F.R. § 3.321(b) was amended, the claim may not be considered on the basis of the collective impact of multiple service-connected disabilities. 1. The claim of entitlement to an extraschedular rating in excess of 50 percent for migraine headaches is remanded. 2. The claim of entitlement to TDIU is remanded. After a supplemental statement of the case (SSOC) was issued in July 2018 but before the case was returned to the Board, the RO obtained updated VA treatment records, which show additional treatment for migraine headaches, and provided the Veteran with VA examinations of his service-connected back and psychiatric disabilities. While the Board sincerely regrets additional delay, this evidence is relevant to the Veteran’s claims of entitlement to a higher rating for migraine headaches and TDIU. Therefore, a remand is necessary for consideration of this evidence in the first instance by the by agency of original jurisdiction. See 38 C.F.R. § 19.31 (2018). Updated VA treatment records should also be requested. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from March 2019 to the present. If any requested records are unavailable, the Veteran should be notified of such. 2. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC which considers all evidence associated with the record since the July 2018 SSOC was issued. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.