Citation Nr: 21006999 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-28 645 DATE: February 8, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to December 8, 2010, and in excess of 30 percent prior to December 8, 2010, for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to June 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board denied entitlement to a rating in excess of 10 percent prior to December 8, 2010, and in excess of 30 percent as of December 8, 2010, for migraine headaches. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In September 2020, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand and vacated the October 2019 decision of the Board to the extent that it denied entitlement to a rating in excess of 10 percent prior to December 8, 2010, and in excess of 30 percent as of December 8, 2010, for migraine headaches, and remanded that issue to the Board for additional action. 1. Entitlement to an increased rating for migraine headaches is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to an increased rating for migraine headaches. In a September 2020 Order, pursuant to a Joint Motion for Remand, the Court noted that the Board did not ensure that VA satisfied the duty to assist by obtaining the Veteran’s VA treatment records prior to making the October 2019 Board decision. The Court stated that the Veteran’s VA Medical Center treatment records indicated that records may be outstanding. Specifically, a May 2015 administrative note from the Veteran’s treating physician (H. Solomon) stated that the Veteran was under that physician’s care at that time. The Veteran’s VA file included records from that physician until 2012, but no later records. There was no indication in the record that VA attempted to procure the Veteran’s treatment records from that physician since 2012. Additionally, treatment records from the Tennessee Valley VA Medical Center from 2009 to 2016 had not been associated with the claims file. The Board must remand the appeal for compliance with the United States Court of Appeals for Veterans Claims’ September 2020 Order vacating the Board’s October 2019 decision and remanding the matter for further adjudication consistent with the Joint Motion for Remand. Stegall v. West,11 Vet. App. 268 (1998); Forcier v. Nicholson,19 Vet. App. 414 (2006). To address the concerns of the parties of the Joint Motion, the Board finds that efforts must be taken by VA to obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claim. Murphy v. Derwinski,1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the record shows that the Veteran was most recently provided a VA migraine examination in November 2011, over nine years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examinations appear to no longer indicate the Veteran’s current level of disability. The Board finds that an updated examination is warranted to access the current severity and manifestations of the service-connected migraine headache disability. After all outstanding medical records are associated with the record, more contemporaneous examination is needed to rate the claim for increased ratings for migraine headaches. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). It is the Veteran’s responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for all the claimed disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. §3.159(e). VA must obtain any outstanding VA and private treatment records not already of record. VA should specifically add treatment records from the Tennessee Valley VA Medical Center and Dr. H. Solomon to the record, if available. 2. Then, schedule the Veteran for a VA examination to assess the current severity of service-connected migraine headaches. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must explicitly address the functional impairments caused by the headache disability, both occupationally and socially. The examiner is asked to describe in detail the frequency, duration, and severity of the headaches. In discussing the severity of the headaches, the examiner should opine as to whether the Veteran's migraine headaches are 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 provide a complete rationale for all conclusions reached. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.