Citation Nr: 21024879 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-12 535 DATE: April 26, 2021 REMANDED Entitlement to a disability rating in excess of 50 percent for migraine headaches is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from February 1978 to February 1982 and from March 1983 to July 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter was previously before the Board in January 2019, at which time the Board granted a disability rating of 50 percent for the Veteran’s migraine headaches and remanded the issue of entitlement to a total disability rating based upon individual unemployability (TDIU). The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). By way of an August 2020 Memorandum Decision, the Court vacated the Board’s January 2019 decision as to the denial of a disability rating in excess of 50 percent for migraine headaches and remanded the matter to the Board for further adjudication consistent with the Memorandum Decision. In August 2020 Correspondence, the Veteran requested to opt-in to the modernized review system. However, in a September 2020 letter, VA notified the Veteran that it could not process his request as it was not submitted on the proper form. In September 2020, the Veteran filed a VA Form 20-0996 Request for Higher-Level Review as to the issue of entitlement to a TDIU. Accordingly, the Veteran’s claim for entitlement to a TDIU is no longer before the Board under the legacy appeals process. In February 2021 Correspondence, the Veteran requested that the Board remand the matter to the Agency of Original Jurisdiction (AOJ) for review of additional evidence submitted in his appeal. The Board also observes that a VA headaches examination report was added to the claims file in March 2021, without a waiver of initial AOJ consideration. Thus, remand is required for issuance of a Supplemental Statement of the Case (SSOC). 1. Entitlement to a disability rating in excess of 50 percent for migraine headaches is remanded. In the August 2020 Memorandum Decision, the Court remanded the matter for the Board to explicitly account for the Veteran’s claimed additional migraine headache symptoms (to include nausea, insomnia, fatigue, difficulty concentrating, memory problems, and noise and light sensitivity), and explain how, or whether, they figured into the 50 percent disability rating it assigned in the January 2019 decision. On review, the Board finds that it lacks sufficient information to adjudicate this claim at present. In the March 2021 VA headaches examination report, the VA examiner wrote, “The veteran is voicing non-headache symptoms of memory and concentration difficulties, being tired frequently and not wanting to leave the house. These complaints can be understood to be complaints during a headache, but they are not part of any headache syndrome. In other words, a veteran with intense headaches may not feel like leaving the house and may feel tired during a headache and may have difficulty concentrating during a headache, but they are not diagnostic features of a headache syndrome. The persistence of these complaints, absent a headache, have a broad differential diagnosis that warrants evaluation in the outpatient setting to search for possible etiologies including medical and psychiatric symptoms.” Additionally, when asked whether he had addressed these additional concerns with his doctor, the Veteran mentioned that he had been told he has thyroid issues, and the VA examiner discussed the possibility of sleep apnea. The above-mentioned portions of the March 2021 VA headaches examination report suggest to the Board that further evaluation is required. Even though the Veteran’s symptoms may not be diagnostic features of a headache syndrome, clarification is needed to determine whether the Veteran’s additional symptoms are separately diagnosable disabilities and/or are etiologically related to his migraine headaches. Thus, remand is required. Accordingly, the matter is REMANDED for the following action: 1. Provide the Veteran an additional VA examination, if possible, to address the claimed additional symptoms of the Veteran’s migraine headaches disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record, possible telephone/virtual interview with the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), the examiner is asked to: (a) Elicit from the Veteran and the record the history of his claimed additional migraine headache symptoms (to include nausea, insomnia, fatigue, difficulty concentrating, memory problems, and noise and light sensitivity). In doing so, also elicit information as to any functional impairment caused by these symptoms. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Identify all separately diagnosable disability relating to the Veteran’s claimed additional migraine headaches symptoms (to include nausea, insomnia, fatigue, difficulty concentrating, memory problems, and noise and light sensitivity). (c) For each separately diagnosable disability relating to the Veteran’s claimed additional migraine headaches symptoms (to include nausea, insomnia, fatigue, difficulty concentrating, memory problems, and noise and light sensitivity), provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran’s service-connected migraine headaches. * Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non- service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). 2. Review the lay and medical evidence received since the February 2017 SOC. 3. Then, readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.