Citation Nr: 21008407 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 12-04 068 DATE: February 17, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for recurrent headaches is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1990 to October 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed the Board’s denial of an initial rating in excess of 30 percent for migraine headaches to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2018, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board’s denial of entitlement to an initial rating in excess of 30 percent for migraine headaches, and remanded the issue to the Board for re-adjudication consistent with the JMPR. This issue was previously before the Board, most recently in July 2020, when remanded for further development.   Entitlement to an initial rating in excess of 30 percent for recurrent headaches is remanded. As a general matter, once VA undertakes to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). A veteran does not have to not work to get a 50 percent rating; rather, the evidence must show that disability picture can produce severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440 (2004). In March 2011 and December 2012 statements, the Veteran asserted that the beneficial effects of medications and the nature of the Veteran’s job allowed him to work, but he may not be able to work if he did not have the “luxury” of having such an accommodating job. In other words, the Veteran has alleged that the headache disability could produce severe economic inadaptability. These statements are consisted with the Veteran’s treatment records. During the period at issue (since November 2010) and, for example, as recently as March 2019, the Veteran reported to a VA neurologist about chronic daily headaches with migraine exacerbations occurring about four times a week sometimes with symptoms that remained prostrating. The Veteran reported that medication reduced head pain by about 70 percent. It was not clear whether the medication reduced the frequency or the intensity of prostrating pain. In October 2019, the Veteran underwent a VA examination. The VA examination report listed the March 2019 VA treatment note in its medical review and acknowledged that the Veteran’s treatment plan included taking medication. The VA examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. The VA examiner found that the Veteran’s headache condition did have an impact on the ability to work: [Veteran] states if at work he has to walk away from his screen from 15 to 30 min. pt states is able to continue working after that. pt state when he gets a ha at home- stays in a dark room- pt states takes 30 min to 1 hr to resolve. pt states has lost 2 days of work related to ha in the last year. Approximately two days of work lost in the last year due to headaches. At these times, work at either a sedentary or physically-active occupation would be prevented. At other times, neither type of activity is affected. The VA examination report did not clarify whether its findings were dependent on the ameliorative effects of the Veteran’s medication. In other words, the opinion did not consider all the relevant evidence of record, including Veteran’s lay statements about the effects of medications and the nature of the Veteran’s job. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board cannot, in making its decisions, assert its own medical opinion about the possible ameliorative effects of the Veteran’s medication. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). An addendum VA medical opinion addressing the severity of the Veteran’s recurrent headaches without respect to the ameliorative effects of medication is warranted. The matter is REMANDED for the following actions: 1. Acquire updated VA and private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from an appropriate clinician regarding severity of the Veteran’s recurrent headaches since November 2010. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must address the Veteran’s lay statements about the ameliorative effects of the Veteran’s medications. If possible, the VA examiner should explain the severity and frequency of the Veteran’s with and without medications. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that question. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, 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.