Citation Nr: 21032163 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 20-25 280 DATE: May 26, 2021 REMANDED Entitlement to a compensable rating for migraines is remanded. Entitlement to a rating greater than 20 percent for complex partial seizures is remanded. Entitlement to a rating greater than 30 percent for generalized anxiety disorder and TBI is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from January 2008 to April 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2020 written statement, the Veteran suggested that her service-connected disabilities prevented her from securing and following gainful employment. Thus, the Board finds entitlement to TDIU has been reasonably raised by the record and the claim has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). 1. Entitlement to a rating greater than 20 percent for complex partial seizures is remanded. 2. Entitlement to a rating greater than 30 percent for generalized anxiety disorder and TBI is remanded. 3. Entitlement to a compensable rating for migraines is remanded. The evidence shows that the Veteran received VA examinations for her seizure disorder and migraines in July 2017. She also received a VA examination for her psychiatric disorder in July 2017 and in January 2018. The Board notes, however, that in May 2020, the Veteran submitted a written statement contending that her conditions have worsened. She also submitted statements from co-workers, her husband, and her son to substantiate her contentions. The Board also notes a March 2019 neurology consult appears to show a worsening of the Veteran's disabilities as it was noted that the Veteran reported suicidal ideation and was referred for evaluation. Moreover, it was noted that the Veteran has complex partial seizures and psychogenic non-epileptic seizures up to once a day, associated with migraines, and an epilepsy monitoring unit was recommended. Therefore, as the evidence suggests the Veteran's service-connected migraines, anxiety, and seizure disorder may have worsened, remand is warranted to obtain examinations to determine the current severity of the Veteran's disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). With regard to the Veteran's psychiatric disorder, the Board further notes that the Veteran was previously service connected for traumatic brain injury (TBI) separately from her anxiety disorder. However, in her January 2018 mental disorders examination, the examiner found that the Veteran did not meet the criteria for a cognitive disorder. As a result, the RO combined the Veteran's psychiatric disorder and TBI as one disability. The Board notes, however, that in a December 2017 medical opinion, the examiner found that the Veteran had cognitive impairments that were likely caused by her depressive disorder and seizure. Given these findings, the Board finds that separate evaluations are warranted for the Veteran's psychiatric disorder and TBI to determine whether the Veteran has cognitive symptoms, or other TBI residuals, separate and distinct from her psychiatric disorder. 4. Entitlement to a TDIU is remanded. As noted above, the issue of entitlement to TDIU has been raised by the record. A request for a TDIU, reasonably raised by the record, is not a separate claim for benefits but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. Rice v. Shinseki, 22 Vet. App. at 453-54. As a result, the Board finds TDIU is inextricably intertwined with the claims being remanded. Accordingly, TDIU must also be remanded. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims folder. 2. Ask the Veteran to complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and request the Veteran to provide any additional information which she believes may be relevant to her TDIU claim. 3. Following completion of the above, afford the Veteran a VA examination to determine the current severity of her seizure disorder. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify and completely describe all current symptomatology. The examiner should also provide an opinion regarding the level of functional impairment caused solely by the Veteran's seizure disorder. 4. Schedule the Veteran for an appropriate VA examination to determine the severity of her service-connected migraine headaches. The entire claims file must be made available to, and must be reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner is asked to describe the frequency of the Veteran's migraines, the characteristics of her prostrating attacks, and whether her prostrating attacks result in severe economic inadaptability. The examiner should also provide an opinion regarding the level of functional impairment caused solely by the Veteran's migraines. 5. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of her anxiety disorder and TBI. The entire claims file must be made available to, and must be reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. Following review of the claims folder, an interview with the Veteran, and completion of any testing deemed necessary, the examiner should fully describe the current extent and symptoms associated with the Veteran's service-connected anxiety disorder with residuals of a TBI. In so doing, the examiner is asked to: a) Provide a full description of the psychiatric aspect of this disability and report all signs and symptoms necessary for evaluating this disability under the appropriate rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of the relevant symptoms. The examiner is specifically asked to address the extent of social and occupational impairment resulting from the Veteran's anxiety disorder. b) To the extent feasible, the examiner should identify any TBI residuals that are separate and distinct from symptoms of her anxiety disorder. The examiner is asked to address the frequency and severity of any such TBI residuals shown. (If a separate examination to address this matter is deemed necessary, it should be conducted.) The examiner is advised that the Veteran is competent to report her symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. (Continued on the next page) The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 6. Then, readjudicate the claims. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.