Citation Nr: 21004323 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-43 683 DATE: January 26, 2021 REMANDED Entitlement to an initial rating higher than 0 percent for migraine headaches prior to February 13, 2002, and higher than 50 percent as of February 13, 2002, is remanded. Entitlement to a rating higher than 30 percent for bilateral diabetic retinopathy with left eye blindness is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to July 1979. The Board referred the issue of entitlement to an earlier effective date for service connection for migraine headaches in June 2005, December 2008, and April 2011. In July 2019, the Board remanded the case for further development. 1. Entitlement to an initial rating higher than 0 percent for migraine headaches prior to February 13, 2002, and higher than 50 percent as of February 13, 2002, is remanded. The Veteran contends that higher ratings are warranted for migraine headaches. The Board notes that a June 1981 rating decision established service connection for a psychophysiological musculoskeletal reaction manifested by complaints of headaches, and assigned a 0 percent rating, effective December 19, 1980. In a June 1981 letter, the Veteran was notified of that decision and his appellate rights. The Veteran did not file a notice of disagreement. In July 1981, the Veteran submitted VA treatment records of treatment for headaches that were diagnosed as migraines and tension headaches. In a February 2002 statement, the Veteran requested an increased rating for the neurotic skeletal disability due to worsening. He stated that he had severe headaches and that his medical records should be obtained from the Fayetteville VA Medcial Center from 1980 to the present. A June 2003 rating decision assigned a 50 percent rating for migraine headaches, effective February 12, 2002. In a November 2014 statement, the Veteran reported that his pharmaceutical records should be reviewed from 1981 through the present, because they showed his prescription history indicating changes in severity due to pain. The July 2019 Board remand directed the RO to readjudicate the claim as it had been pending since December 1980. While the RO reviewed VA treatment records from November 1999 through September 2020, it does not appear that the RO attempted to obtain earlier records or review the Veteran’s earlier submissions. The Board notes that some earlier records have been associated with the record. However, it does not appear that records dated earlier than November 1999 were obtained from the Fayetteville VA Medical Center. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. After the records are obtained, a VA medical opinion should be obtained to determine the severity of the disability. 2. Entitlement to a rating higher than 30 percent for bilateral diabetic retinopathy with left eye blindness is remanded. In the December 2020 VA examination, the examiner indicated the Veteran’s disability caused scarring and disfigurement. The eye conditions disability benefits questionnaire instructs the examiner to complete the appropriate dermatological disability benefits questionnaire if scarring or disfigurement is attributable to any eye condition. The Board notes that the examiner described some of the left eye cornea attributes. However, the examination report is incomplete as the appropriate dermatological disability benefits questionnaire was not completed. On remand, the Veteran should be provided with additional examination to assess the severity of the bilateral eye disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. The claim for TDIU is inextricably intertwined with the claims for increased ratings. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for a TDIU must be deferred. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 1981 to the present, to specifically include all pharmacy records. 2. After associating the requested records, have an appropriate VA physician review the claims file to provide an opinion on the service-connected migraine headache disability. The examiner must review the claims file and should note that review in the report. The examiner is asked to describe in detail the frequency, duration, and severity of the Veteran’s headaches during all periods since 1980. In discussing the severity of the headaches, the examiner should opine as to whether the Veteran’s migraine headaches have been characterized by: (a) Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; (b) Characteristic prostrating attacks occurring on an average once a month over the last several months; or (c) Characteristic prostrating attacks averaging one in two months over the last several months. The examiner should apply those criteria to all periods since 1980 and should note the dates when those criteria were present. The examiner should opine whether it is at least as likely not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. All opinions must be accompanied by a rationale. 3. Schedule the Veteran for a VA eye examination to determine the severity of service-connected bilateral eye disabilities. The examiner must review the claims file and should note that review in the report. The examiner should specifically identify all disabilities found, and describe in detail all pertinent symptomatology and findings of any visual impairment found, including any visual field loss. The examiner should consider all applicable rating criteria during the appeal period, including the versions of the eye rating criteria effective prior to and effective as of May 13, 2018. A complete rationale should be provided for any opinions expressed. The examiner should state whether or not the bilateral eye disability results in disfigurement or scarring. If so, the Veteran should be referred for a dermatology examination to address any disfigurement or scarring as a result of the bilateral eye disability. If not, the examiner should reconcile that finding with the December 2020 VA examination which noted scarring and disfigurement. The examiner should opine whether it is at least as likely not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.