Citation Nr: 21040625 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-21 351 DATE: July 6, 2021 REMANDED Entitlement to an initial increased rating greater than 30 percent for migraine headaches is remanded. Entitlement to service connection for a respiratory disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from November 2013 until her honorable discharge in March 2016. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of her testimony has been associated with the claims file. At the hearing, her representative requested the Board consider awarding her TDIU claim in the first instance. 1. Entitlement to an initial increased rating greater than 30 percent for migraine headaches. The Veteran asserts that she is entitled to an increased initial rating because her headaches cause her to be completely prostrate and cause severe economic inadaptability as a result. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran currently has staged ratings of 0 percent from March 17, 2016 to July 9, 2018, and 30 percent thereafter. Migraines can be found in 38 C.F.R. § 4.124a under diagnostic code (DC) 8100. The relevant rating criteria is as follows: "With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50 [percent;] With characteristic prostrating attacks occurring on an average once a month over last several months 30 [percent;] With characteristic prostrating attacks averaging one in 2 months over last several months 10 [percent; and] less frequent attacks 0 [percent]." 38 C.F.R. § 4.124a. The Veteran was awarded service connection for migraines in March 2017 with an evaluation of 0 percent effective March 17, 2016. That decision is now on appeal. The period on appeal is March 17, 2016 to the present. During this period the Veteran worked in several jobs until October 2019. At her January 2021 hearing, the Veteran testified that she stopped working at that time because she was overwhelmed. She has worked as a receptionist, a health tech, a call center employee, a sales associate in overnight stocking, a cook for a catering business, saw operator, and a stitching and sewing employee. She stated that her service-connected disabilities were preventing her from obtaining and maintaining substantial gainful employment. The Veteran's first VA examination for her migraine headaches took place in March 2018. The examiner found that the Veteran did not have characteristic prostrating attacks at that time. As a result, she received a noncompensable rating. Her second VA examination in July 2018 found that she did have characteristic prostrating attacks, once every month for the last several months. The examiner found the attacks to not be very prostrating and prolonged that they produced severe economic inadaptability. See July 2018 VA Examination. The examiner reported that the Veteran asserted that she had to stay home at least once per month due to her symptoms. This placed the Veteran within the 30 percent rating criteria and her current staged rating is effective as of the date of her VA examination. The Veteran testified that she has stopped working as of October 2019. She testified that her migraines occur several times a week for a few hours each. They cause her pain behind her eye, can make her nauseous, and make her sensitive to light and sound. The VA treatment records do not corroborate these statements; however, they are also several years old. The claim must be remanded for updated VA treatment records. Furthermore, the Veteran has not had an examination for her headache disability since July 2018. 2. Entitlement to service connection for a respiratory disability. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Veteran underwent a pulmonary examination in March 2018. Therein she was diagnosed with "dyspnea on exertion with intermittent [shortness of breath]." The examiner provided a positive nexus but stated that the Veteran "will need a pulmonology work-up for her dyspnea." The Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Veteran is currently undergoing vocational rehabilitation and attending school. She had also obtained employment after her last VA examination, but stopped working before her hearing. Given her sporadic employment history, updated VA treatment records are required to determine if the Veteran is capable of secure or follow a substantially gainful occupation. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from July 2018 to the present. 2. After the above development has been completed, schedule the Veteran for a VA examination for her respiratory disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the respiratory disability at least as likely as not (50 percent probability or greater) related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of her in-service injury and symptoms as well as her post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of her current disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected headache disability. 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. (Continued on the next page) The examiner is directed toward the Veteran's hearing testimony where she testified that her migraines occur several times a week for a few hours each. They cause her pain behind her eye, can make her nauseous, and make her sensitive to light and sound. 4. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and her representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.