Citation Nr: 21004765
Decision Date: 01/28/21	Archive Date: 01/28/21

DOCKET NO. 11-16 654
DATE: January 28, 2021

REMANDED

Entitlement to an evaluation in excess of 30 percent prior to October 22, 2020 and in excess of 50 percent thereafter for muscle tension headaches associated with right major trapezius strain (tension headaches) is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty for training from September 1999 to March 2000, with additional service in the Wisconsin National Guard.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA). This case was remanded in October 2015 and June 2018 for further development.

In March 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

Since the Board’s last remand, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 50 percent for the Veteran’s tension headaches, effective October 22, 2020. See October 2020 rating decision. The issue has been recharacterized accordingly.

The record reflects that the Veteran’s headaches caused her to lose two jobs recently. See October 2020 VA examination. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue.

1. Entitlement to an evaluation in excess of 30 percent prior to October 22, 2020 and in excess of 50 percent thereafter for tension headaches.

The criteria for rating the Veteran’s tension headaches includes consideration of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Because the matter of TDIU is related to the Veteran’s ability to work, the Board finds that this matter is inextricably intertwined with the issue of entitlement to TDIU.

2. Entitlement to TDIU.

The Veteran should be provided the opportunity to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and provide any additional evidence relating to her inability to work or the effect her tension headaches have on her ability to work during the appeal period.

The matters are REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records from September 2020 to the present.

2. The AOJ should provide the Veteran appropriate notice of VA’s duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include providing her a VA Form 21-8940. The Veteran should assist in the matter by providing the requested information.

3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures.

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Sandler, 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.