Citation Nr: 21027924 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-57 931 DATE: May 7, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from August 1987 to December 1993 and the U.S. Army from February 1999 to April 1999, September 2005 to September 2007, and August 2010 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2019 decision, the Board granted an initial increased rating of 30 percent for the Veteran's chronic post-traumatic headaches. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Partial Remand (JMPR) in November 2020, vacating and remanding the portion of the Board's December 2019 decision in which entitlement to an initial rating in excess of 30 percent was denied. The JMPR indicates that the Board did not provide adequate reasons and bases to support the conclusion that the Veteran's headache disability did not meet the criteria for a higher 50 percent rating; and more specifically, it did not articulate the standard by which it assessed that the Veteran did not have "prolonged" attacks nor did it adequately discuss the Veteran's November 2017 lay statement describing the severity of his headaches, particularly in relation to establishing that he experienced "prolonged" attacks. The Board recognizes that, in his November 2017 substantive appeal, the Veteran challenged the competency of the May 2017 VA headaches examiner, a nurse practitioner rather than a traumatic brain injury specialist. See Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). However, as the Board has found a new VA examination is warranted, this challenge is moot. Entitlement to an initial rating in excess of 30 percent for chronic post-traumatic headaches is remanded. The Veteran contends that he is entitled to a higher rating for his post-traumatic headaches. To ensure that VA has met its duty to assist, remand is necessary to request any outstanding VA and relevant private treatment records and to obtain a new VA examination. 38 C.F.R. § 3.159(c). As an initial matter, the Board notes the Veteran's headaches were found to be related to residuals of a mild traumatic brain injury (TBI) caused by an in-service blast injury in 2006. See VA TBI examination report (May 2017). He is currently assigned an initial 30 percent rating for his chronic post-traumatic headaches secondary to his posttraumatic stress disorder (PTSD) with depressive symptoms and TBI, rated as 70 percent disabling under Diagnostic Code 9411. He has also been awarded a total disability rating based on individual unemployability due to his service-connected disabilities (TDIU) effective December 27, 2015, the date after he last worked. Under the relevant rating criteria, a 50 percent maximum rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38C.F.R. §4.124a, Diagnostic Code 8100. Remand is necessary for the following reasons. First, the evidence indicates that there may be outstanding VA and relevant non-VA medical records. VA has a duty to assist the Veteran that includes attempting to obtain such records reasonably identified because these records may contain evidence that supports the assignment of a 50 percent rating for his post-traumatic headaches. Here, the record reflects the most recent VA treatment records are dated from October 2017, almost 4 years ago. An October 2017 VA TBI progress note shows the Veteran reported experiencing headaches 2 to 3 times per week and that the medications, Topiramate and Sumatriptan, reduced the frequency, severity and duration of his headaches. The Board notes that any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, updated VA treatment records should be obtained on remand. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In addition, the Board notes that a few private medical records from the Veteran's non-VA treatment provider are associated with the claims file. The records reflect that the Veteran first presented at Mercy Ruan Neurology Clinic as a new patient in May 2017, approximately one week after undergoing his VA headaches examination. The Veteran reported experiencing 2 to 3 headaches per week without aura and reported that over the counter medication was not working well. During the initial visit, he was assessed as having chronic migraines without aura, and post-traumatic headaches. In addition, he was prescribed Sumatriptan Succinate to be taken at the onset of severe headaches and Topiramate to be taken daily. The second treatment record, dated in November 2017, one week after the submission of his VA Form 9, he reported experiencing migraines 1 to 2 times per week. He indicated that he did not respond well to Topiramate but that Sumatriptan, which he only had to take a few times since May 2017, was well tolerated and effective. See Medical Treatment Records-Non-Government Facility (Mercy Ruan Neurology Clinic) (May 2017 & November 2017). The Board finds that the private medical records from Mercy Ruan Neurology Clinic, which are specifically related to the Veteran's treatment for headaches during the appeal period, are relevant to his claim for a higher rating. Because the most recent treatment record from Mercy Ruan Neurology Clinic is dated in November 2017, almost four years ago, remand is necessary to request any outstanding private medical records since that time as a complete record, which includes all of the Veteran's medical treatment, is required to ensure that adjudication of the claim is a fully informed one. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). Second, the Veteran was most recently evaluated for his headaches at a VA examination in May 2017. The Veteran reported his headaches had worsened over the past 4 to 5 months due to nausea, light sensitivity and dizziness. The headaches were reported to occur 2 to 3 times per week for a duration of 2 to 4 hours but less than 1 day. In addition to pain on the left side of his head, the Veteran reported symptoms of nausea, light sensitivity, aura prior to the onset of a headache, and dizziness. He stated that he took Tylenol for pain and would rest in bed and try to sleep it off. The examination report indicates the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain and it did not impact his ability to work. By contrast, a VA TBI examination report dated in May 2017 shows the Veteran reported daily mild to moderate headaches. Several months later, in his substantive appeal, the Veteran stated that he experienced severe, debilitating headaches, occurring two to three times per week, for which he was prescribed medication, and that occasionally required him to be in bed all day. He also indicated that he is unable to seek employment due to the severity of his TBI residuals, which include headaches. See VA Form 9 (November 2017). Given the above, the Board finds another VA headaches examination is necessary to evaluate the severity of the disability during the appeal period. See 38 C.F.R. § 4.2. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his headache symptoms, to include Mercy Ruan Neurology Clinic. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records from October 2017 to the Present. 3. Schedule the Veteran for an examination by an appropriate specialist, preferably a neurologist, to determine the severity of his post-traumatic headaches. The examiner must be provided with a complete copy of this remand. 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. Based on a review of the claims file and interview of the Veteran, the examiner is asked to provide the following: (a.) Describe the frequency, duration, and severity of the Veteran's post-traumatic headaches since April 2017. (b.) Detail the presence and frequency of any prostrating and prolonged attacks, to include a discussion of whether the Veteran's reports of "severe debilitating" headaches, occurring at least twice per week, and which occasionally necessitate sleeping or lying in bed with his eyes covered for the entire day, as described in the May 2017 VA examination report and in his November 2017 lay statement, are productive of very frequent completely prostrating and prolonged attacks. (c.) Discuss how the Veteran's headaches impair his ability to work, if at all. NOTE: The Veteran is competent to report his symptoms along with their frequency and duration. The examiner is not required to accept his report, the examiner but must provide a full explanation for any history of headache symptoms, frequency, or duration that is rejected or discounted. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.