Citation Nr: 21015256 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-54 424 DATE: March 17, 2021 REMANDED Entitlement to an increased rating greater than 10 percent for migraine headaches prior to April 13, 2017 is remanded. Entitlement to an increased rating greater than 50 percent for migraine headaches from April 13, 2017 is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to April 13, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1988 to April 1989 and from October 1989 to March 1993. The claims on appeal were adjudicated by the Board in a January 2020 decision. At that time, the Board reopened the Veteran’s claim for entitlement to posttraumatic stress disorder (PTSD) but denied service connection on the merits; denied service connection for bilateral hearing loss; denied an increased rating greater than 10 percent for traumatic brain injury; denied an effective date earlier than October 28, 2013, for the grant of service connection for traumatic brain injury; and granted a 50 percent disability rating for migraine headaches, effective April 13, 2017. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the January 2020 Board decision only as to its denial of an increased rating greater than 10 percent for migraine headaches prior to April 13, 2017 and its denial of an increased rating greater than 50 percent for migraine headaches from April 13, 2017. The JMPR also remanded the issue of entitlement to a TDIU based upon the claim for an increased rating for headaches, finding that the issue of TDIU had been raised prior to the Board’s January 2020 decision. Entitlement to an increased rating greater than 50 percent for migraine headaches from April 13, 2017; entitlement to an increased rating greater than 10 percent for migraine headaches prior to April 13, 2017; and entitlement to a TDIU prior to April 13, 2017 are remanded. Since the Agency of Original Jurisdiction (AOJ) last issued a Supplemental Statement of the Case (SSOC) in October 2019 addressing the issues before the Board, additional pertinent evidence has been associated with the claims file in the form of medical records from the Social Security Administration (SSA) and a January 2021 VA headaches examination. Although an automatic waiver would typically apply based upon the date of receipt of this evidence, VA does not interpret 38 U.S.C. § 7105(e) as extending to evidence that was not submitted by the Veteran, such as SSA records and VA examination reports. The Board acknowledges that this evidence was considered by the AOJ in its February 2021 rating decision; however, that rating decision did not consider the evidence as it applies to an increased evaluation for migraine headaches prior to April 13, 2017. As entitlement to an increased rating for migraine headaches prior to April 13, 2017 is intertwined with the claims for entitlement to an increased rating for migraine headaches from April 13, 2017, and entitlement to a TDIU prior to April 13, 2017, all of these issues must be remanded for consideration by the AOJ. Because neither the Veteran nor his representative have submitted a waiver of this evidence, the Veteran’s claims must be returned to the AOJ for the issuance of an SSOC. The matters are REMANDED for the following action: Readjudicate the issues on appeal, including a review of all evidence received since the October 2019 SSOC. If any benefit sought remains denied, provide another SSOC to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.