Citation Nr: 21031194 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-20 778 DATE: May 20, 2021 REMANDED Entitlement to an initial rating higher than 30 percent for migraine headaches since August 11, 2012. REASONS FOR REMAND In a prior February 2020 decision, the Board increased the initial rating for the Veterans migraines from 0 percent to 30 percent for the initial period that was at issue in that decision namely, from August 11, 2012 to May 25, 2015. As of May 26, 2015, he already had this higher 30 percent rating for his migraines. However, the Board denied a rating higher than 30 percent for the migraines, either for that initial period from August 11, 2012 to May 25, 2015, or even since May 26, 2015. The Veteran appealed the Board's decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a January 2021 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the portions of the Board's decision denying 1) a rating higher than 30 percent for the migraines from August 11, 2012 to May 25, 2015 and 2) since May 26, 2015. The Court remanded this claim back to the Board since the Board had failed to ensure compliance with its prior April 2015 remand directives. The Board, consequently, in turn, is remanding this claim back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) for this required compliance with those prior remand directives. Entitlement to an initial rating higher than 30 percent for the migraines since August 11, 2012 The Board's prior April 2015 remand, in part, was so the Veteran could undergo a VA examination reassessing the severity of his migraines. To this end, the remand directed that "[t]he examiner should also note and discuss as appropriate the Veteran's February 2013 statements to a VA provider and his notice of disagreement indicating he experiences prostrating attacks 1-5 times per week." The Veteran had that examination in May 2015, during which the examiner concluded that the Veteran has one prostrating attack per month maximum. However, when rendering that opinion, the examiner did not acknowledge or discuss the Veteran's February 2013 statements to the VA provider or in his Notice of Disagreement (NOD). In the JMR, the parties agreed that, without a discussion of that evidence, there was not the acceptable substantial compliance with the Board's April 2015 remand directives. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Schedule the Veteran for another examination by an appropriate clinician again reassessing the severity of his service-connected migraine headaches. The examiner must provide a full description of this disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. Specifically, the examiner should indicate: (a.) Whether the Veteran has had any prostrating attacks of migraine headaches during a preceding 12-month period and, if so, the frequency and duration of the prostrating attacks; (b.) Whether the Veteran's migraines have been characterized by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability; (c.) Whether there is functional loss owing to the Veteran's migraine headaches, including limitations of activities of daily living and in occupational functioning. *The examiner must also note and discuss as appropriate the Veteran's February 2013 statements to a VA provider and in his Notice of Disagreement (NOD) that he experiences prostrating attacks 1-5 times per week. To assist in making these important determinations, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.