Citation Nr: 21071291 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-27 932 DATE: November 30, 2021 REMANDED Entitlement to an increased disability rating in excess of 50 percent for migraines, to include on an extraschedular basis, is remanded. Entitlement to an increased disability rating in excess of 10 percent for residuals of TBI is remanded. Entitlement to an increased disability rating in excess of 10 percent for low back strain is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps October 2007 to February 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2017 and February 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased disability rating in excess of 50 percent for migraines, to include on an extraschedular basis, is remanded. 2. Entitlement to an increased disability rating in excess of 10 percent for residuals of TBI is remanded. The Veteran filed a claim for an increased evaluation for his TBI and migraines, and a claim for TDIU. In a January 2017 rating decision, the RO denied an increased evaluation in excess of 30 percent for migraines, an increased evaluation in excess of 10 percent for TBI, and entitlement to TDIU. The Veteran timely filed a notice of disagreement to the January 2017 rating decision, indicating the following: "I disagree with all of the determinations made in the above-referenced VA rating decision except for those, if any, that I specifically indicate I do not want to appeal. As such, my NOD specifically covers all the determinations made by the regional office unless specifically excluded. I also specifically disagree with the RO's failure to adjudicate claims, issues, or theories of entitlement that it was required to adjudicate. I am explicitly referring to issues that I may not have discussed but which were reasonably raised by the evidence in the claim file or in VA's possession that should have been implied or inferred by the VARO. My appeals also include a disagreement with any determinations that were mischaracterized by the VARO. This disagreement specifically refers to, but is not limited to, VARO's failure grant a higher rating for migraine headaches (now claimed as vertigo and eye involvement), and failure to grant service connection for TDIU." The Veteran also lists his area of disagreement in section 10 of the NOD as increased evaluation for migraines and TDIU. Although the Veteran did not specifically list his disagreement with the evaluation for TBI in the January 2017 rating decision in Box 10, it seems to be implied by his statement in Box 11 that he wished to disagree with all adverse actions in the above rating decision. Furthermore, the Veteran clarified in his April 2020 substantive appeal, following a February 2020 SOC which only addressed the issue of TDIU, that he sought appellate review for TDIU and the inextricably intertwined issues of increased evaluations for the service-connected disabilities. In June 2020, the Veteran's representative also clarified the same. In addition, the Board also notes that in a February 2020 rating decision the RO increased the Veteran's evaluation for migraines to 50 percent effective September 30, 2016. Although 50 percent is the maximum rating allowed under DC 8100, extraschedular consideration was reasonably raised by the record. See June 2020 Third Party Correspondence and June 2021 Medical Treatment Record. In sum, the Veteran filed a written NOD with the January 2017 rating decision that denied the Veteran's claims for increased evaluations for migraines and TBI, and entitlement to a TDIU. See February 2017 NOD. While there were some ambiguities in the NOD as to the issues being appealed, the issues for an increased evaluation for migraines and entitlement to TDIU were explicitly noted in his disagreement. However, also discussed above, the issue for an increased evaluation for TBI is also understood to be on appeal but an SOC was not issued. In Manlicon v. West, 12 Vet. App. 238 (1999), the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the Agency of Original Jurisdiction (AOJ) for issuance of a SOC. Here, although the February 2020 rating decision addressed the increased rating for migraine headaches, no SOC has been issued. Accordingly, the issues of an increased evaluation for TBI and migraine headaches are remanded so that the AOJ may issue a SOC. Parenthetically, the Veteran asserts that he developed neuralgia as a residual of his TBI and wishes to pursue a separate claim as part and parcel to his increased evaluation for TBI. 3. Entitlement to an increased disability rating in excess of 10 percent for low back strain is remanded. The Veteran contends that his back disability is more severe than contemplated by the assigned evaluation. A January 2018 VA examination was obtained. The examination demonstrated normal ranges of motion and no evidence of pain with weight bearing, additional loss of function upon repetitive use or repeated use over time, radiculopathy, ankylosis, or IVDS. The examiner noted no evidence of pain on passive range of motion and non-weight bearing testing. The January 2018 VA examination report of record does not provide sufficient findings as to be deemed adequate and in compliance with Correia. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. The January 2018 VA examiner failed to discuss the Correia factors, particularly with respect to passive range of motion measurements. Therefore, a new VA examination is warranted to determine the current severity of the back condition. 4. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues discussed above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, a decision on the claim for a TDIU would be premature, and a remand is also required pending resolution of the intertwined claims. The matters are REMANDED for the following actions: 1. Issue an SOC for the issues of an increased evaluation for TBI and migraine headaches. 2. Schedule the Veteran for an examination to determine the current severity of his back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If feasible, and if current findings contradict those from prior examinations, the examiner should endeavor to provide retrospective findings of the nature and severity of the back disability over the claim period. All pertinent symptomatology and findings must be reported in detail in accordance with rating back disabilities. All ranges of motion involving the Veteran's back disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. To comply with the Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing of the back. Notably, to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups or repetitive use over time, and if so, the examiner must estimate range of motion during flare-ups or repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and repetitive use over time. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, including reduced range of motion. If there is a medical basis to support or doubt the history provided by the Veteran, particularly pertaining to his description of reduced range of motion during flare-ups or repetitive use over time, the examiner should provide a fully reasoned explanation. 3. Readjudicate the claims on appeal. If the benefits are not granted to the Veteran's satisfaction, an SSOC should be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, this case should be returned to the Board in accordance with current appellate procedures. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.