Citation Nr: A21020671 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 211017-192056 DATE: December 30, 2021 REMANDED Prior to September 27, 2021, entitlement to an initial compensable evaluation for service-connected migraine headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities. REASONS FOR REMAND The Veteran served on active duty from October 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal was issued in August 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board notes the issue of entitlement to TDIU was not addressed in the August 2021 rating decision. In a June 2014 VA treatment record, however, the Veteran stated that he was terminated from his employment due to his not reporting for work secondary to his headaches. See CAPRI (August 2014). The issue of TDIU, therefore, has been raised during the administrative appeal of the Veteran's claim for an increased rating and is thus a component of that claim. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). The Board also notes that the Veteran has been represented by an agent throughout this appeal. See Power of Attorney (June 2015). In October 2021, the Veteran filed an appeal with the Board. See VA Form 10182 Notice of Disagreement (October 2021). On October 21, 2021, this appeal was docketed with the Board. See BVA Letter (October 2021). Submitted perhaps that same day, the agent submitted a statement noting that "we hereby withdraw our representation of the Veteran." See VA 21-4138 Statement In Support of Claim (October 2021). After an appeal to the Board of Veterans' Appeals has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. 38 C.F.R. § 20.6. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. 38 C.F.R. § 20.6. In November 2021, the Board notified the Veteran's agent that they needed to show good cause for a withdrawal of representation because their attempted withdrawal was submitted after an appeal has been filed with the Board. See BVA Letter (November 2021). The agent was notified that if the Board did not hear from them within 30 days, it would assume that the agent wished to remain the Veteran's representative for the review of this appeal. See BVA Letter (November 2021). No response was received. Accordingly, the Veteran's agent remains as noted above. 1. Prior to September 27, 2021, entitlement to an initial compensable evaluation for service-connected migraine headaches is remanded. 2. Entitlement to a TDIU based on service-connected disabilities. A July 2021 rating decision granted service connection for migraine headaches and assigned a noncompensable rating from July 2, 2014. See Rating Decision-Narrative (July 2021). An August 2021 VA letter notified the Veteran of this decision and how to appeal. See Notification Letter (August 2021). This appeal arises from the Veteran's disagreement with the initial rating (zero percent). See VA Form 10182 (October 2021). It is noted that that later an October 2021 rating decision granted a 30 percent rating for migraine headaches effective September 27, 2021, based on a September 2021 VA headache examination report. The Veteran contends he is entitled to a compensable evaluation of at least 50 percent for his service-connected migraine headaches as he has daily headaches. See VA Form 10182 Notice of Disagreement (October 2021). The Board finds that remand is warranted to correct a pre-decisional duty to assist error to obtain relevant VA and federal records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and records from Federal agencies such as the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Here, VA was made aware that the Veteran was in receipt of SSA disability benefits at least as of 2009. See SSA/SSI Letter (September 2009); Correspondence (September 2009). As recently as August 2021, it was confirmed that the Veteran was still in receipt of SSA benefits. See SSA Profile and Benefit Data (August 2021). The claims file does not reflect that the AOJ attempted to obtain these potentially relevant records. These must be attempted to be obtained on remand. Additionally, the Veteran has reported regular and continuous treatment at VA since service discharge. See Hearing Transcript at 11 (May 2021). Of record are VA treatment records dated from October 2006 to August 2014 and from May 2017 to July 2021. See CAPRI (August 2014); CAPRI (November 2017); CAPRI (February 2018); CAPRI (July 2018); CAPRI (September 2019); CAPRI (July 2021). There is a gap of treatment records from 2014 to 2017, which is essential to rating the time period on appeal which begins in 2014 and extends through part of 2021. As there is no VA examination of record for this appeal period, VA treatment records are particularly relevant. These should have been obtained prior to the rating decision on appeal. Therefore, remand is necessary to correct the duty to assist error on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the rating decision on appeal. See 38 C.F.R. § 20.802. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2014 to May 2017. 2. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Adjudicate the claim for TDIU raised by the record as part of the claim for increase for migraine headaches. See Rice, supra. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.