Citation Nr: 21073657 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-41 482 DATE: December 9, 2021 REMANDED Entitlement to a rating in excess of 50 percent for migraine cephalgia is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1974 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and August 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a hearing before an undersigned Veterans Law Judge; the Veteran's claims file contains a copy of a transcript. In September 2019, the Veteran submitted a medical evaluation by a consulting physician, Dr. R.N.P., an orthopedic surgeon. The physician generically noted a review of unspecified records and "if indicated" an orthopedic examination to address physical problems. Based on a telephone conversation with the Veteran, the consultant noted that the Veteran reported two to three migraine headaches per week, lasting for hours, with vomiting, aggravation by light and sound, and the need to go to a dark, quiet room to lie down. The Veteran reported use of three medications. The consultant determined that the headaches were severe, debilitating, daily, with nausea and vomiting and warrant a 75 percent rating. In December 2019, the Board remanded the case, noting that the Veteran testified that his migraine cephalgia has worsened since his last VA examination, which occurred in November 2013. The Veteran also reported a recent VA hospitalization and head examination resulting from his condition. Remand was necessary to afford the Veteran an updated VA examination to assess the current nature, extent, and severity of his disability, and to obtain updated treatment records including those from a Dr. Samuel (identified by the Veteran at the hearing), and an application for a TDIU to include education and employment information. The Veteran failed to appear for a VA examination scheduled in January 2020 with no good cause shown. VA received a TDIU application in March 2020. At this time, the Veteran requested that the examination be rescheduled because of late notice. In April 2020, the RO received a large file of records for examination and adjudication for disability benefits by the Social Security Administration. The evidence is relevant to his status in 2011. Although the cover document mentions migraine, there is little medical or lay evidence in the file relevant to that disorder. In May 2020, a VA nurse practitioner completed a disability benefits questionnaire (DBQ) based only on a file review. The NP noted that VA records did not show the use of medication since 2016. Inconsistently, the NP noted headache pain and non-headache nausea, vomiting and sensitivity to light, but that the Veteran did not experience characteristic prostrating attacks. The RO issued a supplemental statement of the case in July 2020, and the same month, the Veteran requested another hearing. In December 2020, the Veteran testified at another Board hearing before an undersigned Veterans Law Judge; the claims file contains a copy of this hearing transcript. In an August 2021 email communication, the Veteran's representative indicated that the Veteran waived his right of a hearing before a third Veterans Law Judge. See August 16, 2021 Hearing Related. Discussion Regarding the September 2019 consultant's evaluation, the Board finds that there is little in the way of clinical guidance as to the respective severity of the Veteran's migraine cephalgia, especially for symptoms not contemplated in the schedular rating for 38 C.F.R. § 4.124a, Diagnostic Code 8100. The consultant did not provide any in-person examination or neurological testing and the assessment was wholly derived from records review and one conversation and has limited probative weight. Regarding the VA headaches disability benefits questionnaire (DBQ) in May 2020, a clinician indicated a review of the claims file; however, no diagnostic testing occurred. Moreover, this clinician indicated that this disability did not require the use of medication since 2016 and that there were no very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The Board finds that the two reports are not adequate and do not represent substantial compliance with its December 2019 remand that required assistance from the Veteran to obtain any outstanding relevant private treatment records, to include records from a Dr. Samuel and an adequate and consistent VA examination to determine the current nature and severity of his migraine cephalgia. The Veteran's claim for a TDIU is intrinsically intertwined with increased rating claim for migraine cephalgia on appeal. See Smith (Daniel) v. Gober, 236 F. 3d 1370, 1373 (Fed, Cir, 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, a thorough consideration of this issue must be deferred pending the development indicated above. These matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are outstanding private records related to migraine cephalgia including treatment by a Dr. Samuel. If affirmatively indicated, prepare releases, obtain the records, and associate the records with the claims file. Should VA not obtain any private records (as indicated), the RO must (1) inform the Veteran of the unobtained records (2) tell the Veteran steps taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 2. Obtain all outstanding VA treatment records, progress notes and associate the records with the claims file. 3. Arrange for an in-person VA headaches examination with an appropriate VA clinician. The examiner must review the Veteran's claims file and indicate such a review in the body of the examination report. All necessary clinical testing and interviewing must take place. The Board requests that the examiner comment on and reconcile the two divergent opinions concerning the severity of the Veteran's migraine cephalgia. See September 2019 evaluation from Dr. R.N.P and May 2020 headaches DBQ. Upon completion of the above, the examiner must provide an assessment as to the current severity of this disability according to all applicable diagnostic criteria. Complete rationales for the conclusions reached must be provided. 4. Consider whether additional ratings are warranted under Diagnostic Codes other than Diagnostic Code 8100 that contemplate the Veteran's endorsements of prostrating neurological symptoms, such as, but not limited to, Diagnostic Codes 8102, 8103, 8104, 8105, 8106, 8107, and 8108. If not appropriate, consider whether a referral for extraschedular consideration is warranted. 5. Upon completion of the above tasks, re-adjudicate the Veteran's increased rating claim and his claim for a TDIU. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals S. BUSH Veterans Law Judge Board of Veterans' Appeals L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.