Citation Nr: 22017980 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 18-34 458 DATE: March 27, 2022 REMANDED Entitlement to an increased rating in excess of 30 percent for migraine headaches is remanded. Entitlement to an increased rating in excess of 20 percent for lumbar pathology with right leg radiculopathy 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 from December 1972 to October 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. A copy of the transcripts has been associated with the Veteran's file. 1. Entitlement to an increased rating in excess of 30 percent for migraine headaches is remanded. In this case, the Veteran seeks an increased rating in excess of 30 percent for his service-connected migraines. By way of history, the Veteran was granted service connection for migraines claimed as head injury in a June 2013 rating decision. He was assigned a noncompensable rating with an effective date of October 6, 2004. The Veteran was afforded a VA examination in September 2015. In a February 2016 rating decision, the evaluation of the Veteran's migraines was increased from a noncompensable rating to 30 percent disability with an effective date of February 11, 2015. The Veteran submitted a timely notice of disagreement (NOD) in April 2016 and seeks an increased rating for his migraine headaches. The Veteran was afforded a VA examination for migraines in May 2018. The Veteran reported that he experienced headaches four times a week and as a result he missed approximately 15 days of work. He experienced constant head pain on both sides of his head worsening with physical activity. He reported to be sensitive to sound and light with characteristic prostrating attacks occurring once every month. An additional examination was conducted in November 2018. Additional symptoms included non-headache symptoms involving gastrointestinal symptoms and light headedness. He reported difficulty concentrating when he has a migraine, however, the examiner noted that the Veteran has not been evaluated or treated by neurology and is not on preventative medication. During his Board hearing, the Veteran testified that he gets migraines every day, "they just take me out because it hurts so bad." He testified that the severity of the migraine causes him to lay down for the day and, in some instances, he has to lay in the closet where it is dark and cool or lay in the bathtub. He testified that he is prescribed medication that is not effective and that his headaches have affected his employment. He testified that "it just got too much for me to continue on" when referring to his employment as a truck driver. Given the evidence that his last VA examination for migraine headaches was provided in May and November 2018 and his credible testimony evidencing an increase in frequency and severity, the Board finds a remand is necessary in order to provide the Veteran with an additional VA examination to determine the severity of his migraine headaches. 2. Entitlement to an increased rating in excess of 20 percent for lumbar pathology with right leg radiculopathy is remanded. The Veteran also seeks an increased rating in excess of 20 percent for lumbar pathology with right leg radiculopathy. The Veteran was granted service connection for lumbar pathology, claimed as residuals of an injury to the lumbar spine, in a June 2013 rating decision with a noncompensable rating in effect October 6, 2004, and a 20 percent rating from March 28, 2013. The Veteran was provided an additional VA back examination in September 2015. In a February 2016 rating decision, the RO denied an increased rating in excess of 20 percent. The Veteran submitted a timely NOD in April 2016 and seeks an increased rating of 100 percent for his lumbar spine disability. The Veteran was last afforded a VA back examination for his lumbar pathology with right leg radiculopathy in May 2018 and again in November 2018 following a statement from private practitioner Dr. C. D. regarding the Veteran's claim for a TDIU. The statement provided by Dr. C. D. discusses an in-service injury during a combat jump and how the Veteran has experienced multiple heath issues to include constant low back pain, right foot drop, and gait abnormalities. However, the November 2018 examiner provided that the Veteran's lower extremity symptoms are from a nonservice-connected spastic diplegia and not radiculopathy from the back disability. During the May 2018 examination, the same examiner noted that the Veteran did not report any pre-existing disability to account for obvious abnormal gait and function of the lower extremities even after specific questioning. The examiner noted that Dr. C. D. did not mention the Veteran's pre-existing nonservice-connected disability and concluded that this information was not provided to Dr. C. D. During the Board hearing, the Veteran testified that he is in constant pain every day. In October 2019, he testified that a spinal cord stimulator was implanted, however, he provided it has not helped. He also provided that he underwent surgery in 2018 to have three herniated discs removed. He testified to experiencing numbness and weakness in his right leg. As a result of his lumbar disability, he is unable to participate in once enjoyable activities or assist his wife in certain chores. The Veteran's spouse was in attendance to the hearing. She testified that he is tripping while walking. The Veteran testified to experiencing sharp stabbing pain with random, sudden onsets. In addition, the Veteran and his representative discussed during the hearing an appointment regarding potential surgery. However, no evidence or documentation has been added to the file regarding this appointment. In light of the above, and given the evidence that his last VA examination for his lumbar spine was provided in May and November 2018, his testimony that he underwent surgery to remove discs and implant a spinal cord stimulator, the lack of medical records from the recent November 2021 appointment, and his credible testimony evidencing an increase in severity, the Board finds a remand is necessary in order to obtain any outstanding medical records and provide the Veteran with an additional VA examination to determine the severity of his lumbar spine disability. 3. Entitlement to a TDIU is remanded. The Veteran seeks entitlement to a TDIU as a result of his service-connected disabilities. In September 2018, the Veteran submitted a VA 21-8940 Application for Increased Compensation Based on Unemployability due to his service-connected lumbar spine and migraine headache disabilities, in which he stated that he last worked full-time in June 2018. This claim was denied by the RO in a November 2018 rating decision. The RO found a TDIU was not warranted because the Veteran did not meet the schedular criteria and had not been found unable to secure of follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran did not submit a timely NOD with the RO's decision. However, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a total disability rating based on individual unemployability in increased-rating claims when the issue of unemployability is raised by the record. In this case, the issue of TDIU is again raised by the record. During the Veteran's Board hearing, he testified that he previously worked as a truck driver, and that he is unable to work due to his lumbar spine and migraine headache disabilities. Given the remanded issues of entitlement to an increased rating in excess of 30 percent for migraine headaches and an increased rating in excess of 20 percent for lumbar spine disability, the Board finds the issue of entitlement to a TDIU to be inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, a remand is warranted. In addition, following readjudication of the Veteran's claims for increased rating for migraine headaches and lumbar spine disability, for any appeals period following the Veteran's last date of employment in June 2018 that the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a), the Board finds that the Veteran's assertion that his service-connected migraine headaches and lumbar spine disabilities have prevented his continued participation in his former occupation as a truck driver triggers VA's duty to refer the matter to the Director of Compensation Service for an advisory opinion under 38 C.F.R. § 4.16(b) addressing this matter in the first instance. The matters are REMANDED for the following actions: 1. The AOJ should seek and obtain any outstanding VA or private medical records with help from the Veteran, to include medical records from the November 2021 appointment. 2. Schedule the Veteran for an appropriate VA examination to reassess the severity of the Veteran's migraine headache and lumbar spine disabilities. (a.) The examination should include all diagnostic testing or evaluation needed to make the required determinations, including range of motion testing for his lumbar spine. (b.) The examiner must also describe functional impairment or restrictions that would impact of the Veteran's employability. A complete rationale must be provided in support of all opinions offered. 3. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the Veteran's claim for TDIU, to specifically include collecting and verifying information concerning his complete educational and occupational history, and scheduling him for additional VA examination(s) necessary for adjudicating the issue. 4. After completing any development which reasonably flows from the information provided by the Veteran, for any period since the Veteran was last employed in June 2018 and fails to meet the schedular criteria for a TDIU under 4.16(a), the AOJ must refer the Veteran's TDIU claim to the Undersecretary for Benefits or the Director of the Compensation Service for appropriate action as per 4.16(b). 5. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of the evidence. If any benefit sought on appeal remains denied, the Veteran must be furnished a copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.