Citation Nr: 21029098 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-52 257 DATE: May 12, 2021 REMANDED Entitlement to service connection for migraines (claimed as headaches) is remanded. Entitlement to an initial evaluation in excess of 0 percent for residuals of right 4th finger partial amputation with tuft fracture (right 4th finger disability) on an extraschedular basis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Navy from January 1992 to January 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. In July 2020, the Board, in pertinent part, remanded the issues on appeal for further development. The issues have returned to the Board for further appellate consideration. When evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, during the February 2020 Board hearing, the Veteran testified that his service-connected right 4th finger disability has resulted in an inability to type for prolonged periods of time, causing him to quit multiple jobs through the years. He also testified that, due to his service-connected disability, he has difficulty with his current employment as a pharmacy technician. As such, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for migraines (claimed as headaches) is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain private treatment records identified by the Veteran during the February 2020 Board hearing. Specifically, during the hearing, the Veteran testified that his migraines started in service after leaving the Persian Gulf, that he received over-the-counter medication two to three times per week while in service, and when he came home from the Persian Gulf, he saw five different private neurologists for migraines. The Veteran also testified that he had undergone two surgeries for his migraines with private physicians. The record does not reflect that the release for these records has been associated with the Veteran's claims file. Furthermore, neither the private records nor any documented attempts by the AOJ to obtain them are of record. On remand, a release for these records should be obtained from the Veteran. Then, these records, or documentation of the AOJ's attempt to obtain these records, should be associated with the Veteran's file. Accordingly, to ensure compliance with the directives of the July 2020 remand, the above outstanding records should be obtained, or documentation of the AOJ's attempts to obtain these records should be provided. See Stegall, 11 Vet. App. at 271. Furthermore, the Board notes that a VA addendum opinion addressing the nature and etiology of the Veteran's migraines was obtained in September 2020. In light of the above-stated outstanding private treatment records, the Board finds that the examiner's opinion is inadequate, as it is based on an incomplete record. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995) (stating that a medical opinion based on incomplete records is of limited probative value). Thus, a new opinion should be obtained on remand. 2. Entitlement to an initial evaluation in excess of 0 percent for residuals of right 4th finger partial amputation with tuft fracture (right 4th finger disability) on an extraschedular basis is remanded. The Veteran underwent his most recent VA examination for his right fourth finger in June 2013. During the February 2020 Board hearing, the Veteran suggested that the examination was inadequate, as the examiner simply looked at his finger and made a conclusion without actually examining the finger. He further testified that, due to his inability to type for prolonged periods of time, it is impossible for him to use his Computer Engineering Associate's degree and follow his contemplated career path as a result of the pain and limitations of motion for his right 4th finger disability. He indicated that, through the years, he has had to quit multiple jobs and has difficulty with his current employment as a pharmacy technician. In light of the Veteran's testimony, in July 2020, the Board directed the AOJ to refer the claim to the Director of Compensation Service for extraschedular consideration. Accordingly, an opinion was obtained from the Director in December 2020, in which she concluded, "Based on the evidence of record there is no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. Thus, entitlement to an extra-schedular rating is denied." The Board finds that the Director's opinion is inadequate, as it is conclusory and does not discuss any evidence pertinent to the claim, to include the Veteran's hearing testimony. Thus, in light of the above, a remand is required to afford the Veteran a contemporaneous examination. Furthermore, a remand is required to obtain an adequate opinion from the Director of Compensation Service. 3. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issues remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned appeal. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file, specifically private treatment records relating to the Veteran's migraines. Note that the Veteran has indicated that, post service, he sought treatment for his migraines with five different private neurologists, and that he underwent two surgeries with private physicians. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should be clearly documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so as to afford him with an opportunity to provide a description of his employment history and educational background. 3. Then, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his migraines. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran's claimed disability. The examiner should respond to the following: (a) Opine as to whether it is at least as likely as not that the Veteran's migraines manifested during, or as a result of, active military service. (b) If a diagnosed condition cannot be established regarding the Veteran's claimed symptomatology, he examiner should characterize the Veteran's claimed symptoms as belonging to one of four disability patterns: (1) undiagnosed illness, (2) a diagnosable, but medically unexplained chronic multi-symptom illness (MUCMI) of unknown etiology, (3) a diagnosable chronic, multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology. In formulating the above opinions, the examiner must consider and discuss all lay statements, testimony, and assertions provided by the Veteran, including his testimony that the migraines began after leaving the Persian Gulf and he was exposed to asbestos in a shipyard. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion 4. Then, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected right fourth 4th finger disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the current severity of the Veteran's service-connected disability. The examiner is requested to comment on the severity of the Veteran's service-connected right fourth 4th finger disability throughout the rating period. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. The VA examiner is asked to address whether the Veteran experiences any symptoms related to his service-connected right fourth 4th finger disability that are not contemplated by the rating criteria. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After the Veteran's VA examination has been conducted, refer the claim for an increased rating for service-connected right 4th finger disability to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 6. After completing all indicated development, the Veteran's claims should be readjudicated, to include the issue of entitlement to a TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.