Citation Nr: 21027042 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-41 434 DATE: May 4, 2021 REMANDED Entitlement to an initial compensable rating for migraines is remanded. Entitlement to an initial rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to an increased initial rating for a left knee disability, rated 10 percent prior to April 30, 2018, 100 percent from April 30, 2018 to June 30, 2019, and 30 percent thereafter is remanded. Entitlement to an increased initial rating for a right knee disability, rated 10 percent prior to June 26, 2018, 100 percent from June 26, 2018 to July 31, 2019, and 30 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 18, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2013 and October 2020 rating decisions. The Veteran testified before the undersigned during a January 2019 hearing. In May 2019, the Board remanded the claim for additional development. VA's duty to assist requires efforts to ensure all relevant treatment records have been obtained and associated with the Veteran's claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 1. Entitlement to an initial compensable rating for migraine headaches is remanded. The Veteran seeks an initial compensable rating for his migraine headache disability. In November 2011 he filed a claim seeking service connection for a headache disability, described as severe headaches which required rest and recovery in a dark area. In January 2012, he submitted a statement indicating he experienced four or five headaches each week, some of which were debilitating. In January 2013, a VA headache conditions examination was provided. The examiner noted, following a September 2012 operation to remove a pituitary tumor from his brain, the Veteran's headaches were less intense. Medical records of this surgery are included in the claims file. The examiner observed, a private physician referred the Veteran for brain MRI's in May 2011 and July 2012. These MRI reports are included in the claims file. In evaluating the headache condition, the examiner remarked that the Veteran was seen by his private primary care provider every three to six months. Private primary care treatment records are not associated with the claims file. In January 2019, the Veteran testified that he continued to have some debilitating migraine headaches. Medications he used to treat his psychological conditions were helpful in treating his headaches. No private psychiatric treatment records, after 2014, are included in the claims file. These records may include information about the Veteran's continuing headache symptoms. In January 2020, a second VA headache examiner observed there was "very little documentation of a chronic headache complaint" over the prior three to five years. It appears there are outstanding treatment records relevant to this claim. In July 2019, the Veteran provided a list of his private doctors. The list included Dr. R. B., his primary care provider, Dr. A. V., his psychiatrist, and Dr. H. B., his neurologist. Records from Dr. R. B., Dr. A. V., and Dr. H. B. are not included in the claims file. VA must make reasonable efforts to obtain outstanding records from these physicians, and other medical professionals, who may have records related to the Veterans' headache condition. Id. 2. Entitlement to an initial rating in excess of 20 percent for a left shoulder disability is remanded. 3. Entitlement to an increased initial rating for a left knee disability, rated 10 percent prior to April 30, 2018, 100 percent from April 30, 2018 to June 30, 2019, and 30 percent thereafter is remanded. 4. Entitlement to an increased initial rating for a right knee disability, rated 10 percent prior to June 26, 2018, 100 percent from June 26, 2018 to July 31, 2019, and 30 percent thereafter is remanded. The Veteran seeks increased initial ratings for a left shoulder disability, a right knee disability, and a left knee disability. In August 2018, he submitted a medical history listing his prior surgeries. The list includes a December 2016 left shoulder arthroscopy performed by Dr D. M. at the Tampa Bay Surgery Center; a June 2017 right knee arthroscopy with meniscectomy, performed by Dr. D. M. at the Tampa Bay Surgery Center; and, a December 2017 left knee arthroscopy with possible meniscectomy, performed by Dr. D. M., with no surgical facility indicated. Dr. D. M.'s records and physical therapy records are included in the claims file. However, surgical reports and records related to these surgeries, including records from the Tampa Bay Surgery Center, are not yet associated with the claims file. The records are relevant to the evaluation of the Veteran's left shoulder, right knee, and left knee disabilities over the appeals period. VA's duty to assist requires reasonable efforts to assist the Veteran in obtaining these relevant records. Id. 5. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to July 18, 2013, is remanded. The issue of entitlement to a TDIU, prior to July18, 2013, is inextricably intertwined with the remanded claims seeking increased ratings. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Make reasonable efforts to assist the Veteran in obtaining any outstanding private treatment records relevant to his claim for an increased rating for his headache disability, particularly any relevant primary care treatment records, psychiatric treatment records, and neurological treatment records. (Continued on the next page) Make reasonable efforts to assist the Veteran in obtaining any outstanding private treatment records relevant to his claim for increased ratings for his left shoulder, right knee, and left knee disabilities. These records include hospital, surgical, or other related records of a December 2016 left shoulder arthroscopic surgery, a June 2017 right knee arthroscopic surgery, and a December 2017 left knee arthroscopic surgery, that may be relevant to the issues on appeal. These efforts must include asking the Veteran to complete a VA Form 21-4142 for Dr. R. B., Dr. A. V., Dr. H. B, and the Tampa Bay Surgery Center. The Veteran should also be asked to identify any other private treatment provider who may have records relevant to his claims for increased ratings for migraine, left shoulder, right knee, and left knee disabilities. Make two requests for the authorized records from all medical treatment providers noted above and those identified by the Veteran in response to request to continue development of his claim. If it is clear after the first request that a second request would be futile, a second request is not needed. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.